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Summary: Today the Commissioner for Human Rights publishes an issue paper on corporal punishment and children. This document is the first in a series of periodical issue papers on cross-cutting European themes. As part of their daily lives, children all over Europe are spanked, slapped, hit, smacked, shaken, kicked, pinched, punched, caned, flogged, belted, beaten and battered by adults – mainly by those whom they trust the most. This violence may be a deliberate act of punishment or just the impulsive reaction of an irritated parent or teacher. In every case, it is a breach of fundamental human rights principles. Respect for human dignity and the right to physical integrity are universal principles. Yet social and legal acceptance of the hitting and other humiliating treatment of children by adults persists in most countries. Corporal punishment of children often becomes inhuman or degrading, and it always violates their physical integrity, demonstrates disrespect for human dignity and undermines self-esteem. Furthermore, the existence of special exceptions for violent ill-treatment of children in otherwise universally applicable laws against assault breaches the principle of equal protection under the law. The invention of disreputable legal concepts such as ‘reasonable chastisement’ and ‘lawful correction’ arises from the perception of children as the property of their parents. This is the modern equivalent of laws in force a century or two ago allowing masters to beat their slaves or servants, and husbands to beat their wives. Such ‘rights’ are based on the power of the stronger over the weaker and are upheld by means of violence and humiliation. Children have had to wait until last to be given equal legal protection from deliberate assaults – a protection the rest of us take for granted. It is extraordinary that children, whose developmental state and small size is acknowledged to make them particularly vulnerable to physical and psychological injury, should be singled out for less protection from assaults on their fragile bodies, minds and dignity. For women, challenging legal and social acceptance of violence, in particular the daily experience of routine violence in their homes, has been a fundamental part of the struggle for equal status. So it is with children: there is no more telling symbol of their downgrading than adults’ assumption that they have a ‘right’, even a duty, to hit children. Children’s rights and corporal punishment We do nowadays talk about human rights also for children. Children are not any more “half” persons with a limited number of rights. This reflects an important change of attitude which made possible the United Nations Convention on the Rights of the Child ratified by all Member States of the Council of Europe and is the most ratified human rights convention world-wide. The Convention is the first international human rights instrument to address the protection of children from violence expressly. Article 19 requires states to take: “all appropriate legislative, administrative, social and educational measures to protect the child from all forms of physical or mental violence, injury or abuse, neglect or negligent treatment, maltreatment or exploitation, including sexual abuse, while in the care of parent(s), legal guardian(s) or any other person who has the care of the child” Given the holistic nature of the Convention, various other articles reinforce the child’s right to physical integrity and protection of his or her human dignity. The Preamble recognizes the “inherent dignity and […] equal and inalienable rights of all members of the human family”. It also affirms that precisely because of their “physical and mental immaturity”, children need “special safeguards and care, including appropriate legal protection”. Article 37 requires protection from “torture or other cruel, inhuman or degrading treatment or punishment”. Also, the State must ensure that school discipline is “administered in a manner consistent with the child’s human dignity” and in conformity with the rest of the Convention (Art. 28). Finally, States must recognise the right of the child to “the highest attainable standard of health” and “take all effective and appropriate measures with a view to abolishing traditional practices prejudicial to the health of children”(Art.24). Implementation of this Convention is monitored by the United Nations Committee on the Rights of the Child (CRC). The Committee has constantly recommended prohibition of all corporal punishment, including in the family, and suggested campaigns to raise awareness of the negative effects of corporal punishment and to encourage the development of positive, non-violent child-rearing and educational practices. Definition of corporal punishment In its recent General Comment n° 81, the CRC defined precisely what should be considered as corporal punishment: “any punishment in which physical force is used and intended to cause some degree of pain or discomfort, however light. Most involves hitting (“smacking”, “slapping”, “spanking”) children, with the hand or with an implement – whip, stick, belt, shoe, wooden spoon, etc. But it can also involve, for example, kicking, shaking or throwing children, scratching, pinching, biting, pulling hair or boxing ears, forcing children to stay in uncomfortable positions, burning, scalding or forced ingestion (for example, washing children’s mouths out with soap or forcing them to swallow hot spices). In the view of the Committee, corporal punishment is invariably degrading. In addition, there are other non-physical forms of punishment which are also cruel and degrading and thus incompatible with the Convention. These include, for example, punishment which belittles, humiliates, denigrates, scapegoats, threatens, scares or ridicules the child.” The European Committee of Social Rights (ECSR) stated that corporal punishment was not in accordance with human rights standards as defined by the Social Charter. It considered that “Article 17 [of the Social Charter] requires a prohibition in legislation against any form of violence against children, whether at school, in other institutions, in their home or elsewhere. It furthermore considers that any other form of degrading punishment or treatment of children must be prohibited in legislation and combined with adequate sanctions in penal or civil law."2 This prohibition includes forms of punishing which do not necessarily involve the use of physical force, such as isolating or humiliating children. Furthermore, the ECSR stated “even if violence against the person is punished under criminal law provisions and subject to increased penalties where the victim is a child, this does not constitute a sufficient prohibition in law to comply with Article 17§1 of the Revised Charter”3 In examining Member States reports under Article 17, the Committee asks questions about the legality of corporal punishment, in the home, schools and other institutions and day-care. In its Conclusions concerning several countries, the ECSR found, since 2003, a breach of the Social Charter because corporal punishment of children was not prohibited. However, the definition and ban of corporal punishment should not be seen as excluding the positive and fundamental concepts of discipline or education. The development of every child requires guidance and directions from parents, relatives, teachers or other adults. Parenting and caring for children, especially young children, demands frequent physical actions and interventions to protect them. These situations should be distinguished from the deliberate and punitive use of force to cause some degree of pain, discomfort or humiliation. As adults, we know for ourselves the difference between a protective action and a punitive assault; it is no more difficult to make a distinction in relation to actions involving children. The law in all States, explicitly or implicitly, allows for the use of non-punitive and necessary force to protect people. Progress towards ending corporal punishment of children in Europe Corporal punishment of children has in the last decades become far more visible, and the emerging picture shows an alarming frequency and prevalence. Statistics show that it is a world-wide phenomenon which affects children indifferently of their country or social origin. The prevalence of corporal punishment has been substantiated by interview surveys conducted in a number of countries with parents, other carers and increasingly with children to determine more about why and how often corporal punishment occurs. In its Recommendation 1666 (2004) calling for a Europe-wide ban on corporal punishment of children, the Parliamentary Assembly of the Council of Europe considered that “any corporal punishment of children is in breach of their fundamental right to human dignity and physical integrity. The fact that such corporal punishment is still lawful in certain member states violates their equally fundamental right to the same legal protection as adults. The social and legal acceptance of corporal punishment of children must be ended.” The Assembly noted that while all Member States had banned corporal punishment in schools, including private schools and other educational institutions; this did not necessarily extend to residential and all other forms of childcare. Nor were such bans systematically and universally respected. Therefore the Recommendation called for a coordinated and concerted campaign for the total abolition of corporal punishment of children. Noticing the success of the Council of Europe in abolishing the death penalty, it called to make Europe, as soon as possible, “a corporal punishment-free zone for children.” The Committee of Ministers of the Council of Europe has for more than 15 years condemned the use of corporal punishment and other form of degrading treatment as a means of education4. More recently, it underlined the importance of appropriate legislation in this field in accordance with international standards, although the ban on violence against children, may well be included in the general criminal provisions covering assault and battery. It further stressed the importance of information campaigns raising awareness about children’s rights in this respect. The Committee of Ministers also insisted on the need to begin, in all Member States, a coordinated and concerted campaign for the abolition of all violence against children. Therefore, in order to pursue that objective, it announced a comprehensive three year programme of action on “Children and Violence” with the following objectives: § assist member states in implementing international standards at national and local levels, in particular the United Nations Convention on the Rights of the Child, the European Social Charter and the European Convention on the Exercise of Children's Rights; Banning corporal punishment at national level Only some fourteen European countries have explicitly banned all corporal punishment of children in law. They are Austria (1989), Bulgaria (2000), Croatia (1999), Cyprus (1994), Denmark (1997), Finland (1983), Germany (2000), Hungary (2004), Iceland (2003), Latvia (1998), Norway (1987), Romania (2004), Sweden (1979) and Ukraine (2001). In addition, the Supreme Court of Italy has outlawed it, but this judgment is not yet reflected in specific law. When the Swedish law was coming into force 26 years ago a Ministry of Justice official explained: “By the prohibition of physical punishment, the legislator wanted to show that a child is an independent individual who can demand full respect for his or her person, and who should thus have the same protection against physical punishment or violence as we adults see as being totally natural for ourselves.” The legal provision forms part of Sweden’s family (civil) law: “Children are entitled to care, security and a good upbringing. Children are to be treated with respect for their person and individuality and may not be subjected to corporal punishment or any other humiliating treatment”. But its purpose is to emphasize beyond doubt that the criminal code on assault covers physical punishment, although trivial offences remain unpunished just as trivial assaults between adults are not prosecutable. The purpose of criminalizing all corporal punishment is not, of course, to prosecute and punish more parents. It satisfies human rights by giving children equal protection of their physical integrity and human dignity. It gives a clear message that hitting children is wrong – at least as wrong as hitting anyone else. Thus it provides a consistent basis for child protection and for public education promoting positive forms of discipline. As attitudes change, so the need for prosecution and for formal interventions into families to protect children will diminish. The goals of the ban in Sweden were to alter public attitudes towards corporal punishment, establish a clear framework for parent education and support, and facilitate earlier and less intrusive intervention in child-protection cases. Public support for corporal punishment has declined markedly. Whereas in 1965 a majority of Swedes were supportive of corporal punishment, a recent survey found only six per cent of under-35-year-olds supporting the use of even the mildest forms. Practice has also changed; of those whose childhood occurred shortly after the ban, only three per cent report harsh slaps from their parents, and only one per cent report being hit with an implement. Child abuse mortality rates are extremely low in Sweden. Increased sensitivity to violence to children in Sweden has led to an increase in reporting of assaults, but there has been a declining trend in prosecutions of parents, and a substantial reduction in compulsory social work interventions and in numbers of children taken into care. Public attitudes towards hitting children have changed which has facilitated early supportive intervention in individual cases. In Finland, the ban on physical punishment formed part of a comprehensive reform of children’s law. The Child Custody and Right of Access Act 1983 begins with a statement of positive principles of care for children, and continues: “A child shall be brought up in the spirit of understanding, security and love. He shall not be subdued, corporally punished or otherwise humiliated. His growth towards independence, responsibility and adulthood shall be encouraged, supported and assisted”. Here again, the reform in family law puts beyond doubt that the criminal law applies equally to assaults committed against children by parents and other carers. Norway and Austria implemented similar reforms in the late 1980s. In 1997, the Danish Parliament approved an amendment to the Parental Custody and Care Act which reads: “A child has the right to care and security. He or she shall be treated with respect as an individual and may not be subjected to corporal punishment or other degrading treatment”. In 1986, the Danish Parliament had amended its civil law to state that ‘parental custody implies the obligation to protect the child against physical and psychological violence and against other harmful treatment’. But this was interpreted as allowing milder forms of corporal punishment, and research found that they were still prevalent; hence the need for further and more explicit reform. The Italian Supreme Court, in a 1996 landmark judgement stated that “the use of violence for educational purposes can no longer be considered lawful. There are two reasons for this: the first is the overriding importance that the legal system attributes to protecting the dignity of the individual. This includes minors, who now hold rights and are no longer simply objects to be protected by their parents, or, worse still, objects at the disposal of their parents. The second reason is that, as an educational aim, the harmonious development of a child’s personality, which ensures that he/she embraces the values of peace, tolerance and coexistence, cannot be achieved by using violent means which contradict these goals.” Additionally, several other European countries have currently proposals to prohibit corporal punishment under active consideration. Conclusions The imperative for removing adults’ assumed rights to hit children is that of human rights principles. It should therefore not be necessary to prove that alternative and positive means of socializing children are more effective. However, research into the harmful physical and psychological effects of corporal punishment in childhood and later life and into the links with other forms of violence do indeed add further compelling arguments for banning the practice and thereby breaking the cycle of violence. A Europe without corporal punishment does not only require amendment to national laws, banning such practices. Any national strategy for the elimination of corporal punishment has to include a combination of short-term measures including legal reform to prohibit clearly all forms of corporal punishment and longer-term measures to influence social attitude and promote positive alternative methods of relating and communicating. Any strategy should include the following steps: · review of existing legislation to ensure effective prohibition of all corporal punishment; · orientation of parents and child professionals about the rationale for abandoning corporal punishment as a form of discipline in the home and in institutions - this could include information on legal reform against corporal punishment in other countries and its positive effects; · information to children about their rights including the right to be treated with respect. This should be part of the school curricula but also be disseminated through the mass media; · clear guidance to teachers and pre-school staff, health personnel, social workers and other key professionals on their role in preventing such violations and how to respond in concrete situations when there are indications that a child may suffer abuse and need help; · research in order to develop a better understanding of the magnitude and nature of the practice and to identify groups of children at particular risk, and · parenting education courses and discussions – involving children – on child-rearing practices and positive, non-violent forms of discipline in homes, schools and institutions. All these steps will require awareness-raising among politicians and other decision-makers, and for this the NGOs, professional groups and media are of strategic importance. Sadly, the issue of corporal punishment has tended to fall off political and other adult agendas, even the agendas of strong human rights advocates. Its low priority is probably because of the very personal nature of the problem – most adults, all over the world, were hit as children and may have hit their own children. Politicians find it an unpopular issue; it is easier to focus only on extreme forms of violence to children and on violence by children, against which there is already a popular consensus. Also, many politicians are particularly wary of interference in the traditionally ‘private’ arena of the family. All of these motives may be understandable but are not good excuses. Non-violent conflict resolution, tolerance and respect for others should be taught through setting good examples. How can we expect children to take human rights seriously and to help build a culture of human rights, while we adults not only persist in slapping, spanking, smacking and beating them, but actually defend doing so as being ‘for their own good’? Smacking children is not just a lesson in bad behaviour; it is a potent demonstration of contempt for the human rights of smaller, weaker people. Thomas Hammarberg was appointed as the Council of Europe's Commissioner for Human Rights for a term of office of six years starting on 1 January 2006. 1UNCRC General Comments n°8 on the right of the child to protection from corporal punishment and other cruel or degrading forms of punishment, CRC/C/GC/8, 2 June 2006. http://www.ohchr.org/english/bodies/crc/docs/co/CRC.C.GC.8.pdf 2Conclusions XV-2, Vol. 1, General Introduction. 3Conclusions 2003, Volume 1 4Recommendation (90) 2 on social measures concerning violence within the family, 15 January 1990. 5Reply adopted by the Committee of Ministers to Parliamentary Assembly Recommendation 1666 (2004), 20 April 2005, CM/AS(2005)Rec1666 final Further information
§ by 2007, to propose a coherent and comprehensive set of instruments and methodological guidelines covering all aspects of the question;
§ improve the visibility and the impact of Council of Europe's work in the field5.