Following it two General Discussion Days on Violence Against Children, the UN Committee on the Rights of the Child resolved to issue a series of papers on eliminating violence against children to guide State parties in understanding the provisions of the UN Convention on the Rights of the Child. On 2nd June 2006 the committee released its General Comment on Corporal Punishment.
The release of this paper is relevant to New Zealand at present as the Justice and Electoral Select Committee considers the Crimes (Abolition of Force as a Justificantion For Child Discipline) Amendment Bill.
It is also of relevance as the Ministry of Youth Development prepares a report for Cabinet on the Government Work Plan in response to the UN Committee's observations and recommendation to New Zealand made in 2003.
The General Comment document is a 17 pager document on focuses on all forms and situation of corporal punishment - some of which, for example corporal punishment in schools and institutions are no longer legal in New Zealand. Of critical relevance to New Zealand in the current situation are the following points:
- The UN Committee defines "corporal" or "physical" punishment as any punishment in which physical force is used and intended to cause some degree of pain and discomfort, however light.
- The UN Committee recognises that parenting and caring for children demands frequent physical actions and interventions to protect and care for them. These are quite distinct from the deliberate and punitive use of force to cause some degree of pain, discomfort or humiliation.
- The UN Committee also recognises the distinction between the use of force (minimal needed in the circumstances) to protect a child and others from a child behaving dangerously and the use of force to punish.
- Article 37 of the UN Convention on the Rights of the Child requires States (that have ratified the Convention) ensure that: "No child shall be subjected to torture, cruel, inhuman or degrading treatment or punishment". This is complimented by Article 19, which requires that States "take all appropriate legislati! ve, administrative, social and educational measures to protect! the chi ld from all forms of physical or mental violence, injury or abuse, neglect or negligent treatment".
- The UN Committee emphasises that eliminating violent and humiliating punishment of children, through law reform and other necessary measures, is an immediate and unqualified obligation of States parties.
- During UN Committee examination of the reports of some States government's have suggested that some level of "reasonable" or "moderate" corporal punishment can be justified as in the "best interests" of the child. The Committee asserts that the "best interests: principle cannot be used to justify practices, including corporal punishment, which conflict with the child's human dignity and right to physical integrity.
- The UN Committee sees no conflict between the States' obligation to ensure the human dignity and physical integrity of the child and the Convention's requirement that States support families and respect the responsibilities, rights and duties to provide the child with appropriate direction and guidance.
- Although a growing number of States have prohibited corporal punishment man y still have explicit legal provisions in criminal or civil/family codes which provide parents and other carers with a defence for using some degree of violence in disciplining their children. The UN Committee emphasises that the Convention requires the removal of any provisions, in statutes or common law, which allow some degree of violence against children.
- Repealing explicit defence may not be enough - explicit prohibition of corporal punishment is required to make it absolutely clear that it is unlawful to assault a child just as it is to assault an adult.
- The UN Committee believes that implementation of the prohibition of all corporal punishment requires awareness-raising, guidance and training for all those affected.
- The purpose of law reform to prohibit corporal punishment is prevention by changing attitudes and practice.
- The principle of equal protection of children and adults from assault, including within the family, does not mean that all cases of corporal punishment of children by parents should lead to pr! osecution of parents. The de minimis principle - that the law does not concern itself with trivial matters - ensures that minor assaults between adults do not come to court and the same will be true for children.
- Children's dependent status and the unique intimacy of family relations demand that decisions to prosecute parents, or to formally intervene in the family in other ways, should be taken with great care. Prosecuting parents in most cases is unlikely to be in children's best interests.
- The UN Committee's view is! that prosecutions and other formal interventions should only proceed when they are regarded as both necessary to protect the child from significant harm and in the best interests of the child.
- Advice and training to all those involved including police, prosecuting authorities and the courts should underpin this approach to enforcement of the law.
- Children's views should be taken into account in the development and implementation of educational measures.
- Given the widespread traditional acceptance of corporal punishment, prohibition on its own will not achieve the necessary changes in attitudes and behaviours.
- States must ensure that positive, non-violent relationships are consistently promoted to parents, carers, teachers and all who work with children.
- States should monitor their progress towards eliminating corporal punishment.
- The UN Committee expects States to include in their periodic reports under the Convention information on the measures taken to prohibit and prevent all forms of corporal punishment and other forms of cruel and degrading punishment in all settings including the family.
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