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The Committee on the Rights of the Child
The Convention on the Rights of the Child and its Treaty Body — the Committee on the Rights of the Child
Article 19 of the Convention on the Rights of the Child 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..."
Other articles in the Convention are relevant to protection of children from all corporal punishment: article 3 requires that in all actions concerning children, "the best interests of the child shall be a primary consideration". Article 6 requires States to "ensure to the maximum extent possible the survival and development of the child". Article 28, the child’s right to education, requires States to "take all appropriate measures to ensure that school discipline is administered in a manner consistent with the child’s human dignity and in conformity with the present Convention". Article 37 requires States to ensure that "No child shall be subjected to torture or other cruel, inhuman or degrading treatment or punishment…" Under article 40, all children involved with juvenile justice systems "have the right to be treated in a manner consistent with the promotion of the child’s sense of dignity and worth…"
The Committee on the Rights of the Child which monitors implementation of the Convention on the Rights of the Child has consistently stated that legal and social acceptance of physical punishment of children, in the home and in institutions, is not compatible with the Convention. Since 1993, in its recommendations following examination of reports from various States Parties to the Convention, the Committee has recommended prohibition of physical punishment in the family and institutions, and education campaigns to encourage positive, non-violent child-rearing and education.
In examining States Parties’ reports, the Committee has singled out for particular criticism legislation, existing in many countries, that allows some level of violent punishment - "reasonable chastisement", "moderate correction", and so on.
The Committee on the Rights of the Child is the highest international authority for interpretation of the Convention. Elected by States Parties to the Convention, the 10-member body meets three times a year in Geneva. States Parties must submit an initial report on progress towards implementation of the Convention within two years of ratification; then periodic reports must be submitted every five years.
Comments in general reports of the Committee on corporal punishment
In the report of its fourth session (1993) the Committee recognised the importance of the question of corporal punishment in improving the system of promotion and protection of the rights of the child and decided to continue to devote attention to it in the process of examining States parties reports.
(Report on the fourth session, CRC/C/20, 25 October 1993, para 176)
In the report of its seventh session in November 1994, the Committee stated:
"In the framework of its mandate, the Committee has paid particular attention to the child’s right to physical integrity. In the same spirit, it has stressed that corporal punishment of children is incompatible with the Convention and has often proposed the revision of existing legislation, as well as the development of awareness and educational campaigns, to prevent child abuse and the physical punishment of children."
The report goes on to note that the Committee’s concerns have been shared by various other UN entities. The Commission on Crime Prevention and Criminal Justice adopted a resolution in April 1994 specifically stressing the importance of article 19 of the Convention, and calling on states to take all possible steps to eliminate violence against children in accordance with the Convention.
(Report on the seventh session, CRC/C/34, 8 November 1994, page 63, and CRC/C/SR.166, 3 October 1994, para 13)
In a concluding statement to the General Discussion on Children’s Rights in the Family, organised as the Committee’s contribution to International Year of the Family in October 1994, the Vice-Chair stated:
"As for corporal punishment, few countries have clear laws on this question. Certain States have tried to distinguish between the correction of children and excessive violence. In reality the dividing line between the two is artificial. It is very easy to pass from one stage to the other. It is also a question of principle. If it is not permissible to beat an adult, why should it be permissible to do so to a child? One of the contributions of the Convention is to call attention to the contradictions in our attitudes and cultures."
(CRC/C/SR 176, 10 October 1994, para 46)
The Committee’s first General Comment
On Article 29(1): The aims of education
In its first General Comment, adopted in February 2001, the Committee emphasises that school corporal punishment is incompatible with the Convention: "…Children do not lose their human rights by virtue of passing through the school gates. Thus, for example, education must be provided in a way that respects the inherent dignity of the child, enables the child to express his or her views freely in accordance with article 12(1) and to participate in school life. Education must also be provided in a way that respects the strict limits on discipline reflected in article 28(2) and promotes non-violence in school. The Committee has repeatedly made clear in its concluding observations that the use of corporal punishment does not respect the inherent dignity of the child nor the strict limits on school discipline. Compliance with the values recognised in article 29(1) clearly requires that schools be child-friendly in the fullest sense of that term and that they be consistent in all respects with the dignity of the child. . Participation of children in school life, the creation of school communities and student councils, peer education and peer counselling, and the involvement of children in school disciplinary proceedings should be promoted as part of the process of learning and experiencing the realisation of rights…"
The Committee’s General Comment on Corporal Punishment
At its 42nd session, held in Geneva from15 May to 2 June 2006, the Committee on the Rights of the Child adopted a new General Comment on the issue of corporal punishment. This is the first General Comment concerning the protection of children from all forms of violence which the Committee resolved to publish following its Days of General Discussion on violence against children in 2000 and 2001. It reflects the Committee’s commitment to address the problem of corporal punishment, which dates back to the early days of monitoring the implementation of the Convention on the Rights of the Child and which has consistently informed the Committee’s recommendations to States parties over the years.
General Comment No.8 (2006) on “The right to protection from corporal punishment and other cruel or degrading forms of punishment (arts. 19; 28, para. 2; and 37, inter alia)” aims “to highlight the obligation of all States parties to move quickly to prohibit and eliminate all corporal punishment and all other cruel or degrading forms of punishment of children and to outline the legislative and other awareness-raising and educational measures that States must take” (para 2). As well as being an obligation of States parties under the Convention on the Rights of the Child, addressing and eliminating corporal punishment of children is “a key strategy for reducing and preventing all forms of violence in societies” (para 3).
Definitions
The Committee defines corporal punishment in paragraph 11 of the General Comment:
“The Committee defines ‘corporal’ or ‘physical’ punishment as 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, 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.”
Children are subjected to such punishment in all settings and must be addressed and eliminated in all settings, including within the home and family.
The Committee distinguishes between violence and humiliation as forms of punishment, which it rejects, and discipline of children in the form of “necessary guidance and direction”, which is essential for healthy growth of children. The Committee also differentiates between punitive physical actions against children and physical interventions aimed at protecting children from harm.
Human rights standards
The foundations of the human rights obligation to prohibit and eliminate all corporal punishment and all other degrading forms of punishment lie in the rights of every person to respect for his/her dignity and physical integrity and to equal protection under the law. The Committee traces this back to the original International Bill of Human Rights – “The dignity of each and every individual is the fundamental guiding principle of international human rights law” (para 16) – and shows how the Convention on the Rights of the Child builds on these principles. Quoting article 19 of the Convention, which requires States to protect children “from all forms of physical or mental violence”, the Committee states (para 18):
“... There is no ambiguity: ‘all forms of physical or mental violence’ does not leave room for any level of legalized violence against children. Corporal punishment and other cruel or degrading forms of punishment are forms of violence and the State must take all appropriate legislative, administrative, social and educational measures to eliminate them.”
The fact that article 19 and article 28 – on school discipline – do not specifically refer to corporal punishment does not in any way undermine the obligation to prohibit and eliminate it (paras 20, 21 and 22):
“... the Convention, like all human rights instruments, must be regarded as a living instrument, whose interpretation develops over time. In the 17 years since the Convention was adopted, the prevalence of corporal punishment of children in their homes, schools and other institutions has become more visible, through the reporting process under the Convention and through research and advocacy by, among others, national human rights institutions and non-governmental organizations (NGOs).
“Once visible, it is clear that the practice directly conflicts with the equal and inalienable rights of children to respect for their human dignity and physical integrity. The distinct nature of children, their initial dependent and developmental state, their unique human potential as well as their vulnerability, all demand the need for more, rather than less, legal and other protection from all forms of violence.
“The Committee emphasizes that eliminating violent and humiliating punishment of children, through law reform and other necessary measures, is n immediate and unqualified obligation of States parties....”
The Committee goes on to note that this approach is mirrored in the work of other international human rights treaty monitoring bodies and of regional human rights mechanisms, including the European Court of Human Rights, the Inter-American Court of Human Rights, and the African Commission on Human and Peoples’ Rights.
Common arguments by governments against prohibition of all corporal punishment are also addressed by the Committee. For example, in response to the contention that a certain degree of “reasonable” or “moderate” corporal punishment is in the “best interests” of the child, the Committee states that “interpretation of a child’s best interests must be consistent with the whole Convention, including the obligation to protect children from all forms of violence and the requirement to give due weight to the child’s views; it cannot be used to justify practices, including corporal punishment and other forms of cruel or degrading punishment, which conflict with the child’s human dignity and right to physical integrity” (para 26). And there is no conflict between realising children’s rights and the importance of the family unit, which the Convention fully upholds.
The Committee recognises that some justify the use of corporal punishment through religious faith teachings and texts but again notes that “practice of a religion or belief must be consistent with respect for others’ human dignity and physical integrity” and that “[f]reedom to practice one’s religion or belief may be legitimately limited in order to protect the fundamental rights and freedoms of others” (para 29).
Measures and mechanisms required to eliminate corporal punishment and other cruel or degrading forms of punishment
Legal reform is essential in eliminating corporal punishment. All provisions which allow a “reasonable” degree of corporal punishment – whether in statute or in case/common law – should be repealed, as should all legislation which specifically regulates the administration of corporal punishment, for example in schools and other institutions. But the law must also explicitly prohibit corporal punishment in all settings, as the Committee explains (paras 34 and 35):
“In the light of the traditional acceptance of violent and humiliating forms of punishment of children, a growing number of States have recognized that simply repealing authorization of corporal punishment and any existing defences is not enough. In addition, explicit prohibition of corporal punishment and other cruel or degrading forms of punishment, in their civil or criminal legislation, is required in order to make it absolutely clear that it is as unlawful to hit or ‘smack’ or ‘spank’ a child as to do so to an adult, and that the criminal law on assault does apply equally to such violence, regardless whether it is termed discipline or ‘reasonable correction’.
“Once the criminal law applies fully to assaults on children, the child is protected from corporal punishment wherever they are and whoever is the perpetrator. But in the view of the Committee, given the traditional acceptance of corporal punishment, it is essential that the applicable sectoral legislation – e.g. family law, education law, law relating to all forms of alternative care and justice systems, employment law – clearly prohibits its use in the relevant settings. In addition, it is valuable if professional codes of ethics and guidance for teachers, carers and others and also the rules or charters of institutions emphasize the illegality of corporal punishment and other cruel or degrading forms of punishment.”
The Committee emphasizes that law reform should be accompanied by awareness-raising, guidance and training, because the primary purpose of such reform is prevention – “to prevent violence against children by changing attitudes and practice, underlining children’s right to equal protection and providing an unambiguous foundation for child protection and for the promotion of positive, non-violent and participatory forms of child-rearing” (para 38). Prohibition in law does not mean that all cases of corporal punishment of children by parents should lead to prosecution – “[w]hile all reports of violence against children should be appropriately investigated and their protection from significant harm assured, the aim should be to stop parents using violent or other cruel or degrading punishment through supportive and educational, not punitive, interventions” (para 40).
Effective prohibition requires “comprehensive awareness-raising of children’s right to protection and of the laws which reflect this right” (para 45) and the consistent promotion of positive, non-violent relationships and education “to parents, carers, teachers and all others who work with children and families” (para 46). While the Convention does not prescribe in detail how parenting should be carried out, it does “provide a framework of principles to guide relationships both within the family and between teachers, carers and others and children” (para 46). For example, children’s developmental needs must be respected, their best interests are fundamental, and their views should be given due weight.
Finally, States parties should monitor their progress towards eliminating corporal punishment and other cruel or degrading forms of punishment, including through the use of interview research involving children and the establishing of independent monitoring bodies, and should report on all measures taken in their periodic State party reports to the Committee.
The General Comment is available at: www.ohchr.org/english/bodies/crc/comments.htm
The Committee’s reporting guidelines
Guidelines for periodic reports from States Parties
The Committee has issued detailed guidelines to States on how to prepare the periodic reports on progress in implementing the Convention, which must be submitted every five years. These Guidelines for Periodic Reports, adopted in October 1996, ask "whether legislation (criminal and/or family law) includes a prohibition of all forms of physical and mental violence, including corporal punishment, deliberate humiliation, injury, abuse, neglect or exploitation, inter alia within the family, in foster and other forms of care, and in public or private institutions, such as penal institutions and schools."
(CRC/C/58, para 88)
For details of the Committee on the Rights of the Child and its documents, see www.unhchr.ch/html/menu2/6/crc.
The Committee’s General Discussion days on violence against children
In September 2000 the Committee on the Rights of the Child held the first of two General Discussion days on violence against children. It focused on "State violence to children" and following the day the Committee adopted detailed recommendations, including the prohibition of all corporal punishment:
"The Committee recommends that States parties review all relevant legislation to ensure that all forms of violence against children, however light, are prohibited, including the use of torture, or cruel, inhuman or degrading treatment (such as flogging, corporal punishment or other violent measures) for punishment or disciplining within the child justice system, or in any other context. The Committee recommends that such legislation incorporate appropriate sanctions for violations and the provision of rehabilitation for victims...
"The Committee urges the launching of public information campaigns to raise awareness and sensitize the public about the severity of human rights violations in this domain and their harmful impact on children, and to address cultural acceptance of violence against children promoting instead "zero-tolerance" of violence."
The Committee also encouraged NGOs to prepare and present to it information "regarding all, including culturally ‘acceptable’ forms of violence against children".
The full report of the first discussion day (PDF) is available by clicking here.
In recommendations adopted following its second General Discussion day on "Violence against children in families and schools", held on September 28 2001, the Committee proposed that States should "enact or repeal, as a matter of urgency, their legislation in order to prohibit all forms of violence, however light, within the family and in schools, including as a form of discipline, as required by the provisions of the Convention...".
The Committee also proposed that the UN Secretary General should be requested, through the General Assembly, to conduct an in-depth international study on violence against children. It should include all forms of violence, including corporal punishment, and in all settings including the family.
For full report and recommendations of the second discussion day (PDF) click here.