Children in Court CRINmail 52:
Corporal punishment of children
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Foreword by Peter Newell, Global Initiative to End All Corporal Punishment of Children
The issue of corporal punishment is a fundamental one, not only for children’s protection from violence but for children’s status in society. Nothing is more symbolic of the low regard given to children than the fact that they are afforded less protection from violent assault than adults. Since the first state, Sweden, prohibited all corporal punishment of children including in the family home in 1979, we have seen huge progress. Forty-six states now have a complete ban and 51 more have committed to do so, meaning that more than half of UN member states have prohibited or committed.
Yet still only 9% of the world’s children live in states in which they are fully legally protected from violent punishment. And too many states are failing to make progress, with some ignoring repeated recommendations from human rights mechanisms and a few even openly defending the legality and use of corporal punishment. Where States continue to resist reform, on this as for other human rights issues, strategic litigation should be considered.
Corporal punishment has been litigated on strategically in European and national courts since the 1970s. In Tyrer v UK (1978), a 15 year-old challenged judicial flogging in the Isle of Man in the European Court of Human Rights. Then, from the mid-1970s onwards, there were many applications to challenge school corporal punishment in UK state and private schools. The first application to the Court on parental corporal punishment was also against the UK (A v UK, 1998).
Since 2003, the Global Initiative has made use of the collective complaints procedure under the European Social Charter, challenging the legality of corporal punishment in Belgium, Cyprus, Czech Republic, France, Greece, Ireland, Italy, Portugal and Slovenia (see the news and case study below).
Many national courts around the world have issued positive judgments clearly condemning corporal punishment of children in some or all settings, including Bangladesh (2011), Costa Rica (2005), Fiji (2002), India (2000), Israel (2000), Italy (1996), Nepal (2005), Namibia (1991), South Africa (1994, 2000), Zambia (1999) and Zimbabwe (1987, 1989, 2014). In many cases the judgments have led to the enactment of prohibition in some or all settings. We hope to see the use of national courts on this issue increase and continue to promote progress towards law reform.
To find out more:
Latest news and cases
Europe
European Committee condemns five states over corporal punishment
This year the European Committee of Social Rights found that Ireland, Slovenia, Belgium, the Czech Republic and France had violated the European Social Charter due to their failure to explicitly ban corporal punishment in all settings. The Committee concluded that the States had breached the prohibition of violence against children under Article 17 of the Charter, noting that there is now a consensus in Europe and abroad that corporal punishment of children should be expressly banned. No violation was found, however, in relation to the complaint against Italy. The cases were brought by the Global Initiative (registered under the name ‘APPROACH’) using the Charter’s collective complaints procedure. Read CRIN’s case summary of APPROACH v. France, and see below for our strategic litigation case study.
New legislation
Full prohibition was achieved by three European States at the end of last year. San Marino’s Penal Code was amended to provide that “children have the right to protection and security, and shall not be subjected to corporal punishment or other treatment harmful to their physical and psychological integrity.” Meanwhile, Estonia passed the Child Protection Act 2014, which will come into force in January 2016. Article 24 of the Act prohibits physical punishment of children as well as punishment in any other way that “endangers the mental, emotional or physical health of a child”. The Act further clarifies that the use of force against a child is only permissible if it is “proportionate and necessary to avert the danger either threatening the child or coming from the child” but is never permissible for the purposes of punishment. Finally, Andorra became the latest European State to prohibit all corporal punishment of children in all settings after it amended its Criminal Code to expressly provide that corporal punishment constitutes the offence of assault subject to a sentence of imprisonment.
There are now 28 European countries that have achieved full prohibition of corporal punishment. A further nine have expressed a commitment toward enacting such prohibition. Find out more.
Africa
Zimbabwe court finds corporal punishment sentences unconstitutional
In January the High Court of Zimbabwe delivered a groundbreaking judgment holding that judicial sentences of corporal punishment against juvenile offenders violate the constitutional right to be free from torture or cruel, inhuman or degrading treatment or punishment. The judgment relied on Zimbabwe’s 2013 Constitution as well as a number of international human rights instruments, including the CRC. However, in order for it to become final it requires the Constitutional Court’s approval. While that Court has not yet made a final determination on the issue, in June it decided to suspend the High Court judgment in the interim, meaning that sentences of caning continue to be enforced against juvenile offenders. Read CRIN’s summary of the High Court decision.
New legislation
In January a new Children’s Code was passed in Benin prohibiting corporal punishment of children in the home, thereby outlawing the practice in all settings. Under the Code, punishment of children may not constitute a violation of the child’s physical integrity or torture or inhuman or degrading treatment. The only permissible punishment is that which is “educational in intent and accompanied by an explanation”.
Seven countries in Africa have already achieved full prohibition of corporal punishment. A further 13 have expressed a commitment to prohibition. Find out more.
Americas and Caribbean
Massachusetts court upholds “parents’ rights”
In June in the United States, Massachusetts’s highest court issued a controversial decision defending parents' use of corporal punishment on their children, saying that the practice “remains firmly woven into the nation’s social fabric”. The state Supreme Judicial Court ruled that there was a “parental privilege defence” allowing parents to use force in disciplining a child so long as it is “reasonably related to the purpose of safeguarding or promoting the welfare of the minor” and does not cause any physical harm beyond fleeting pain or temporary marks or mental distress. According to the unanimous decision, criminal sanctions should not be imposed for “the use of parenting techniques still widely regarded as permissible and warranted”. The ruling came in relation to a case where a man had been convicted of assault by a lower court for kicking his 3-year-old child in the backside and spanking her. Several NGOs criticised the ruling, saying it sent the message that it is acceptable to use aggression on a child. Jetta Bernier of the Massachusetts Citizens for Children said it wrongly implies that the use of force supports the welfare of children. Read CRIN’s case summary.
This month the same court heard arguments in another case in which a couple are challenging the decision of public authorities to decline their application to be foster parents on the grounds that they support the use of corporal punishment as a form of discipline. The plaintiffs maintain that the Bible endorses their views and claimed that they are victims of discrimination on the grounds of religion.
New legislation
A complete ban on corporal punishment was enacted in Argentina’s new Civil and Commercial Code and is due to enter into force in January 2016. Though the government previously maintained that corporal punishment is prohibited in a 2005 piece of legislation which guaranteed children’s right to personal integrity and human dignity, parents retained the “power to correct the behaviour of their minor children or to have it corrected” under the 1869 Civil Code. The new Code achieves legal clarity in explicitly providing that “all forms of corporal punishment, ill-treatment and any act that physically or mentally injures or impairs children and adolescents are prohibited”.
Nicaragua’s new Family Code, which includes a full prohibition, came into force in April. Article 280 expressly prohibits the use of “physical punishment or any type of humiliating treatment as a form of correction or discipline” and requires the Ministry of Family, Youth and Children and other state institutions to promote “forms of positive, participatory and non-violent discipline as alternatives to [corporal punishment]”.
Finally, with the coming into force of the Children Act 2012 in May, Trinidad and Tobago became the leader in the Caribbean region by prohibiting corporal punishment in all but one setting. The Act prohibits cruelty to children but allows persons having lawful control of a child to administer “reasonable punishment”, stipulating that such punishment must not include corporal punishment if administered by a person other than a parent. Therefore, it remains lawful for parents to physically punish their children.
Read a thematic edition of our Violence Against Children CRINmail on corporal punishment in Latin America from December 2014.
Whereas eight countries in the Americas have achieved full prohibition of corporal punishment and a further nine have committed to the same, no Caribbean countries have a complete prohibition in place and just one has committed to work towards this. Find out more.
Asia and Oceania
Challenge to legality of caning rejected by Singaporean court
In March Singapore’s Court of Appeal ruled that criminal sentences of corporal punishment are not unconstitutional. While the case did not concern a juvenile offender, corporal punishment is a lawful sentence for boys over the age of seven in Singapore. The Court noted that there was no prohibition of torture in the Constitution or any other national legislation and that any reform is up to the legislature. Despite acknowledging the growing tide of international opinion against the use of corporal punishment punitively, the Court did not consider that there was, as of yet, global consensus in this regard when corporal punishment is administered with appropriate medical safeguards, as is the case in Singapore. Read CRIN’s summary of the case and submission on inhuman sentencing of children for Singapore’s review under the UN Human Rights Council’s Universal Periodic Review.
New legislation
In Papua New Guinea, the 2014 Juvenile Justice Act outlawed corporal punishment as a disciplinary measure in penal institutions. The Act provides that discipline imposed on the juveniles in these institutions may not include corporal punishment or any cruel, inhumane or degrading treatment. Corporal punishment remains lawful, however, in the home, alternative care settings, day care and schools though the state has committed to reform.
One country in East Asia and the Pacific has achieved complete prohibition of corporal punishment of children while nine others have committed to do so. In South Asia none have prohibited but all eight have expressed a commitment to do so. Find out more.
Legal resources
The Global Initiative to End All Corporal Punishment of Children’s website has a section on using human rights law to support advocacy for law reform, which includes a list of case summaries of high-level court judgments on corporal punishment.
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Case study
APPROACH v. France: Collective complaints lead to progress on corporal punishment of children
By issuing seven separate collective complaints to the European Committee of Social Rights, APPROACH, the organisation behind the Global Initiative to End All Corporal Punishment of Children, has prompted the governments of several European countries to enact new legislation or publicly debate the issue.
CRIN’s collection of case studies illustrates how strategic litigation works in practice by asking those involved about their experiences. By sharing these stories we hope to encourage advocates around the world to consider strategic litigation as a means to challenge children’s rights violations.
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Last Word:
“Internationally corporal punishment is regarded as violence against children and as a breach of fundamental human rights. It is considered inhuman and degrading as it violates children’s physical integrity and demonstrates disrespect for human dignity and undermines the self-esteem of children. It is said to treat children as half-human beings thereby breaching the principle of equal protection before the law and non-discrimination. There are regional and international conventions which protect these rights and the right to freedom from torture, inhuman and degrading punishment.”
- Justice Muremba in The State v. C (a Juvenile).
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