Towards prohibition of all forms of violence against children

Summary: Keynote speech delivered at the Council of Europe meeting on 'integrated strategies' to combat violence against children that took place in Vienna May 20-21, 2010.

International Conference: "National integrated strategies to eliminate violence against children"

Paulo Sérgio Pinheiro, Former Independent Expert appointed to lead, The UN Secretary-General's Study on Violence against Children, Commissioner and Rapporteur on Children's Rights, Inter-American Commission on Human Rights, Organization of American States, OAS, Research Associate, Centre for the Study of Violence, University of San Paulo.

It is almost 50 years since researchers first began to "discover" and document in detail the extent of deliberate adult violence against children; of course children have known about it intimately through the centuries. But now that the scale and extent of the violence is becoming increasingly visible, now that children are increasingly speaking out themselves, we have to accelerate the process of prohibiting and eliminating it.

This session focuses on legal prohibition of all forms of violence. It was no accident that the third of the 12 key recommendations of the UN Secretary-General's Study which I led, urging the prohibition of all forms of violence, singled out for explicit mention the prohibition of all corporal punishment, all sexual violence and all harmful traditional practices. And I am delighted that my dear friend Marta is making prohibition one of her key priorities for follow-up.

The imperative for ending all violence against children is of course children's human rights. And clear, detailed legislation, implemented with sensitivity in the best interests of children, has to be the foundation for eradication. It is quite extraordinary that there are still those who doubt the need for detailed and explicit law reform, or more deviously try to define "violence" to exclude the most common forms and in particular violence disguised as discipline – corporal punishment. Our challenge is to develop in every state a legal foundation that is absolutely unequivocal, that allows for no misinterpretation, no justification or acceptance of violence against children.

The Council of Europe strongly supported the Study which I led, and is vigorously supporting follow-up, providing a model for inter-governmental organisations in all regions.

In trying to achieve universal prohibition of all forms of violence, we need to give attention to detail – and that is why the Council of Europe's Guidelines and its standard-setting – in particular the new Convention on the protection of children against sexual exploitation and abuse - are so valuable.

I will speak first about prohibiting corporal punishment, because it is certainly the most common form of violence which children suffer and it is also the form which adults in many countries seem most strongly addicted to still. There is wonderful progress, as Peter's Global Initiative documents, now 27 states with a full ban, including 22 of the 47 Council Member States. In my own region, Uruguay, Venezuela and Costa Rica have adopted a ban and I am hopeful that my own country, Brazil, may achieve this during the last months of President Lula's leadership.

In fact I think it is not too optimistic now to be confident that we can quickly achieve a world in which violent punishment of children is universally prohibited. The Council of Europe was the first inter-governmental organisations, two years ago in Zagreb, to launch an explicit campaign for prohibition across all its Member States. In my own region, the Inter-American Court of Human Rights has declared that human rights standards -regional as well as international - require full prohibition. The Inter-American Commission, in a report prepared by my office as Rapporteur on the rights of the child, has urged all OAS states to implement a full ban without delay, and to report back to the Commission on the measures adopted to eradicate corporal punishment, aiming to make

the Americas a region free of child corporal punishment by 2011.

Similarly, I understand that the Cairo Declaration on the CRC and Islamic Jurisprudence, adopted at a conference last November (2009), co-sponsored by the Organisation of the Islamic Conference, calls on all OIC Member States to prohibit all corporal punishment and other cruel or degrading forms of punishment of children, in all settings including within the family, linking law reform with the promotion of positive, non-violent forms of discipline. And my friend Marta and I are both taking part in a technical workshop on banning corporal punishment organized with the involvement of the League of Arab States, in Lebanon in July.

Many individual States made commitments to prohibit during the process of the Study and its regional consultations. Indeed, in the presence of the children involved directly in those consultations who spoke out about this every day, routine violence they suffer in their homes, how could the adults remain in denial or commit to less? How can we look children in the eye while defending less protection for them from assault than we take for granted for ourselves?

It remains obvious that systematic follow-up, sustained pressure is needed if we are to finally eradicate the idea that violence against children can be "reasonable". Really, it is absurd and offensive that adults and governments continue to defend the concept of "reasonable" punishment, of some arbitrary level of violence when disguised as "discipline".

Too often, politicians and professionals trivialise this issue. But in doing so, they insult children and miss the point. While we deny children equal protection of their human dignity, we are denying them their status as individual human beings and holders of human rights alongside the rest of us. We are treating them as possessions not people. In women's long struggle for equality, challenging routine violence against them in their homes has been a vital part of the struggle. While the "rule of thumb" was at one time the legal measure of the thickness of the stick with which a husband could lawfully beat his wife, such concepts are now confined to the history books – except for children. I am confident that we will all soon look back with embarrassment at the fact that in 2010, some governments – champions of democracy - are still defending "reasonable" violence against children. Surely they do not wish to be on the wrong side of history?

There is a basic contradiction between the advancement of democracy all over the world and the continuation of the authoritarian treatment of children. Millions of children are suffering this authoritarianism inside their families and in state and church and other institutions.

When it comes to prohibiting all sexual violence against children, I am very impressed by the detailed standards set by the Council's newest Convention on the protection of children against sexual exploitation and abuse. While there must be no impunity for those who perpetrate violence against children – I believe this message has finally penetrated the highest levels of faith leadership - we do have to be wary of systems of protection that become in practice simply servants of the criminal justice system.

The Council's Convention recognises that a crudely punitive approach to perpetrators is most unlikely to reduce and eradicate the sexual assault on children; legislation must ensure that States take detailed measures to prevent offending and re-offending. They must make sure through widespread awareness-raising that adults who may pose a threat to children know that programmes of counselling and treatment are available to them; there must be treatment for offenders in and outside prison, and offender management schemes. And there must be systems of records and checks to ensure that those who do pose a risk to children cannot gain employment which gives them significant access to children. All this needs a legislative base.

It is well known that the process of investigation of violence, and child victims' involvement in criminal justice processes can add further abuse and trauma for them. The UN Guidelines on Justice in Matters Involving Child Victims and Witnesses of Crime, adopted by the Economic and Social Council in 2005, provide very valuable standards and guidance. The guidelines define "child-sensitive" as an approach that takes account of the child's individual needs and views". I am sure that the Council's Guidelines on child-friendly justice, currently being finalized, will add to these.

If we are to devise effective and sensitive services to build on the legislative foundation, services that are genuinely accessible and acceptable to children, we have to seek advice from children with relevant experiences – and seek feedback continuously from children who are the subjects of the services: did the process work for them? Did it serve their best interests? Were there unintended negative consequences? How could things have been better? We need to regard children with relevant experiences as the experts. We need their advice on reporting systems, on how to investigate violence and on every aspect of prevention and response. And here too, legislation – not simply guidance to professionals - has to ensure children's CRC article 12 rights: rights to be heard and to have their views given due weight - including in all individual child protection decision-making.

I have no time to rehearse all the issues. But I must mention one of huge importance: we have to stop criminalizing children, because it is a form of violence in itself and wholly counter-productive.

My friend Thomas Hammarberg, the Council's Commissioner for Human Rights, in a recent "Viewpoint" (February 2009) stated that he wanted "to move the debate on from fixing an arbitrary age for criminal responsibility. Governments should now look for a holistic solution to juvenile offending which does not criminalise children for their conduct. As Thomas writes: "We need to separate the concepts of 'responsibility' and 'criminalization'. It is essential to establish responsibility for conduct which contravenes the law. Where responsibility is disputed, there has to be a formal process to determine responsibility in a manner which respects the age and the capacity of the child. However, this does not have to be a criminal process nor involve the criminalization of children.

"It is in all our interests to stop making children criminals. We should therefore treat them as children while they are still children and save the criminal justice system for adults."

I could not agree more, and I know that the European Network of Ombudspersons for Children are promoting similar policy reforms.

Just last week, I was filled with horror reading of a case in the UK in which two 10 year old boys had been charged with rape and indecent assault – of an eight year old girl - prosecuted and taken to court.

This is really medieval, adding violence to violence, throwing away hope of rehabilitation and re-integration. Reforming juvenile justice systems – and in particular ending any form of detention of children except while there is a serious and continuing public safety justification for it - has to be an integral part of prohibiting all violence against children.

So - the essential foundation for the eradication of all forms of violence against children must include explicit prohibition to ensure that adults are forced to discard all their excuses for hurting children. It must reflect all the rights of the CRC. And it must also be sensitively drafted and sensitively implemented – designed always to promote the best interests of children.

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