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KEY JUDGMENTS
Over the last decade there has been a series of high-level court judgments condemning corporal punishment of children. Some relate only to corporal punishment in the penal system or in schools. Others condemn corporal punishment by parents.
This section provides summaries and/or the text of these judgments.
Analysis of human rights standards and key judgments
Detailed analysis of legal reforms against corporal punishment, human rights standards and key judgments: Spare the rod, embrace our humanity: Toward a new legal regime prohibiting corporal punishment of children, Susan H Bitensky, copyright 1998 University of Michigan Law School; Susan H Bitensky. http://www.law.msu.edu/faculty/bitensky/abstract.htm
European Convention on Human Rights: relevant decisions of the European Commission and Court of Human Rights
The European Commission and Court of Human Rights in Strasbourg have considered a series of applications alleging that corporal punishment of children breaches the European Convention on Human Rights, dating back to 1978. The European Court of Human Rights was set up in Strasbourg, France in 1959 to deal with alleged violations of the 1950 European Convention on Human Rights. On 1 November 1998 a full-time Court was established, replacing the original two-tier system of a part-time Commission and Court. All decisions and judgments can be found at http://hudoc.echr.coe.int/hudoc/
Parental beating breaches Convention
Most recently, in September 1998, the European Court ordered the United Kingdom government to pay £10,000 compensation to a boy who was repeatedly caned by his stepfather (the case of "A v UK"). This was the first case concerning parental corporal punishment to be considered by the Court. Prosecution of the stepfather in a UK court had failed on the grounds that the punishment was "reasonable chastisement". The European Court unanimously found the punishment violated Article 3 of the European Convention ("No one shall be subjected to torture or to inhuman or degrading treatment or punishment"). It cited the UN Convention, stating that there must be "effective deterrence" to protect children and other vulnerable individuals. See summary of A v UK case.
Previous decisions of the European Commission and Court of Human Rights have condemned corporal punishment of juvenile offenders and school children and held that prohibition of corporal punishment in the home does not breach rights to family and private life but on the contrary should be seen as a positive step to eliminate violence against children.
Judicial "birching" of juveniles
In 1978 the European Court of Human Rights in Strasbourg ruled that judicial birching of a juvenile (in the Isle of Man - a UK Dependent Territory) breached Article 3 of the European Convention, which bars "inhuman or degrading treatment or punishment" (Tyrer v UK).
Challenging school corporal punishment
In February 1982 the European Court found that the UK was in breach of the European Convention by not respecting parents’ objections to school corporal punishment (Campbell and Cosans v UK). Two Scottish mothers, Mrs Grace Campbell and Mrs Jane Cosans alleged that corporal punishment used in their sons’ schools was contrary to article 3. As neither boy had in fact received corporal punishment, this allegation was rejected by the Court. But it found that the UK had failed to respect the parents’ philosophical convictions. Article 2 of Protocol 1 to the Convention states: "No person shall be denied the right to education. In the exercise of any functions which it assumes in relation to education and to teaching, the State shall respect the rights of parents to ensure such education and teaching in conformity with their own religious and philosophical convictions". Jeffrey Cosans, aged 15, was suspended from his school when he refused to accept corporal punishment. The Court found that he had been denied his right to education.
This judgment and other European Commission on Human Rights decisions on applications made by UK schoolchildren and their parents effectively led to abolition of corporal punishment in all state-supported education in the UK in 1987. But it remained legal for pupils in private schools not receiving state support until September 1999.
In 1993 the European Court found that punishment of a boy in a UK private school (he had been whacked three times with a soft-soled shoe on his clothed buttocks) did not reach the level of severity to breach article 3 of the Convention; but this judgement was by five votes to four, and the Court emphasised that it did not wish to be taken as approving in any way of school corporal punishment, and that the treatment of the boy was at or near the borderline (Costello-Roberts v UK).
Challenge to Swedish ban on corporal punishment rejected
In another significant decision in 1982, the European Human Rights Commission rejected an application by Swedish parents who alleged that the 1979 ban on parental physical punishment breached their right to respect for family life. The Commission concluded: "The actual effects of the law are to encourage a positive review of the punishment of children by their parents, to discourage abuse and to prevent excesses which could properly be described as violence against children" (Seven Individuals v Sweden, European Commission of Human Rights, Admissibility Decision 13 May 1982).
UK Christian schools challenge to school beating ban fails
Most recently, in September 2000, the European Court rejected unanimously and without a hearing an application by individuals associated with a group of Christian private schools in the UK, alleging that the implementation of a ban on corporal punishment in private schools breached parents’ rights to freedom of religion and family life. (Decision on admissibility of Application no. 55211/00 by Philip Williamson and Others against the UK). See also: South Africa's Constitutional Court rejects Christian Schools challenge.
Canada
In January 2004 the Supreme Court of Canada strictly limited the legality of parental corporal punishment and ruled out school corporal punishment. But by six to three they rejected an application by the Canadian Foundation for Youth, Children and the Law that section 43 of Canada's criminal code should be struck down as unconstitutional. Click here for full text of judgment. See below for lower court judgments.
January 2002: Ontario Court of Appeal condemns corporal punishment - but rejects constitutional challenge
The Ontario (Canada) Court of Appeal stated in a judgment released on January 15 2002 that the Canadian government "has clearly and properly determined" that physical punishment of children is bad. But the Court of Appeal upheld the constitutionality of the law which justifies the use of "reasonable force" by parents, teachers and some others to discipline children. The Court found that even if current law infringed children's equality rights under the Canadian Charter of Rights and Freedoms, it was a justifiable limit on those rights.
The Court's judgment is at http://www.ontariocourts.on.ca/decisions/2002/january/canadianC34749.htm
The Canadian Foundation for Children, Youth and the Law in Toronto, www.jfcy.org which brought the challenge, commented: "We are disappointed with the result. Although the decision says that the physical punishment of children is a bad thing, it fails to clearly recognise children as having rights in Canadian society. It stops short of saying that children are people too". (For full text of release in PDF format click here).
The challenge is under the Canadian Charter of Human Rights. Section 43 of Canada's Crimes Act provides a defence for corporal punishment. It states: "Every school teacher, parent or person standing in the place of a parent is justified in using force by way of correction toward a pupil or child, as the case may be, who is under his care, if the force does not exceed what is reasonable in the circumstances".
The application seeks repeal of the section, alleging that it violates children's rights, upheld in the Charter, to equal protection under the law and to security of person. Reliance is also placed on Canada's obligations under the Convention on the Rights of the Child.
The application was rejected by a lower court (the Ontario Superior Court) in July 2000:
July 2000: Ontario Superior Court condemns corporal punishment but defends section 43.The application was first heard by the Ontario Superior Court which rejected it in July 2000.
Brief extracts from judgment of Justice David McCombs
Introduction:
"This application concerns the extent to which parents and teachers may use force to correct children. It comes before the Court for the first time in the form of a constitutional challenge to a section of the Criminal Code. I have concluded that the constitutional challenge must fail, for the reasons set out in this judgment.
"Generally, it is criminal assault to use force against another without consent. Section 43 of the Criminal Code is an exception to that general rule. The section provides a justification for a parent, a person in the place of a parent, or a teacher who uses force to correct a child in his or her care, where the force used is "reasonable in the circumstances".
"Some of the parties to this application argue that s. 43 is unconstitutional, while others support retention of the section. All parties, however, agree that parents and teachers require the right to use reasonable forms of discipline to control or restrain children in their charge. That right is necessary for the protection of children, the protection of others, and to teach them social values and behavioural limits. The disagreement among the parties concerns the limits of acceptable parental and teacher discipline, and in particular, whether mild forms of corporal punishment are acceptable forms of discipline…
"There is a growing consensus that corporal punishment of children does more harm than good. It has been banned in virtually all Canadian school systems; and the federal ministry of health has mounted an educational campaign teaching that hitting children is wrong. Canadian attitudes towards corporal punishment are changing. An increasing number of Canadian adults believe that many forms of corporal punishment, at one time considered acceptable, are no longer acceptable.
"In the continuing debate about the use of corporal punishment in child-rearing, many child welfare groups argue that, as long as s. 43 of the Criminal Code exists, parents and teachers will have a license to abuse children in their care.
"The applicant, the Canadian Foundation for Youth, Children and the Law (the "Children’s Foundation"), submits that s. 43 sends the wrong message: that corporal punishment is "justified"-- that it is a good thing. Moreover, the Children’s Foundation submits that the section’s vague wording wrongly provides a shield against criminal prosecution, even, in some cases, for violent child abuse causing physical injury…"
Conclusion
"These reasons for judgment are not intended to be taken as a wholehearted endorsement of the provisions of s. 43 of the Criminal Code. The evidence shows that public attitudes toward corporal punishment of children are changing. There is a growing body of evidence that even mild forms of corporal punishment do no good and may cause harm. There has been disparity in the judicial application of s. 43 of the Criminal Code.
"It may well be that the time has come for Parliament to give careful consideration to amending s. 43 to provide specific criteria to guide parents, teachers, and law enforcement officials. Specific criteria would assist trial judges, who are vested with the difficult task of deciding sensitive, emotionally-charged allegations of criminality against parents and teachers, and would also help achieve the desirable objective of ensuring greater uniformity in judicial decisions involving allegations of assault on children.
"Judges, however, are not legislators, nor should they be. My task in this application is limited to a determination of the application to strike down s. 43 of the Criminal Code, and its common law underpinnings, as unconstitutional. For the reasons outlined in this judgment, I conclude that the application must be dismissed."
Costa Rica
Criminal Court of Cassation says parental authority does not include hurting children
In October 2005, the Criminal Court of Cassation of the Second Circuit Court of San Jose dismissed an appeal by a father convicted for punishing his daughter with a belt. The father’s argument was that his actions were based on “a custom that has existed for over twenty years” and that he had used a soft belt that did not have a buckle.
The Court stated that legislation recognises the right and duty conferred under parental authority to, “in a moderate way, correct children” (Family Code, art. 143). However, the Court argued:
“… this can in no way be interpreted as a general authorization for parents or guardians of minors to hurt them without being punished for that action or simply to dispose of their lives as they please. This concept is an atavistic approach of family relationships, according to which the father disposed of all assets, including his wife and children. On the contrary, according to the legislation in force in Costa Rica, minors are vested with rights and duties and the State must watch out for their physical and moral integrity.”
The Court quoted article 19 of the UN Convention on the Rights of the Child – the right to protection from all forms of physical or mental violence – and the recommendations of the Committee on the Rights of the Child to prohibit corporal punishment in the home. The Court also quoted Costa Rica’s domestic legislation recognizing children’s right to respect for their “physical, psychological, and moral integrity” (Children and Adolescents Code, art. 24), concluding “that the rights granted to parents under the paternal rights and duties is limited by the human rights of minors and the prohibitions expressly established in the criminal laws” and stating:
“In short, parents – even though vested with parental rights and duties have no ‘right’ to hurt their children. Accepting otherwise would breach the principle of equality, established in article 33 of the Political Constitution, since aggression with weapons is not allowed among adults, let alone against persons who are vulnerable and/or within the family circle. Respect for physical integrity is part of respect for human dignity, and therefore, there is no legal standing to deteriorate the human rights of the victims in this case.”
For these and other reasons the appeal was declared unfounded.
The full text of the Costa Rica judgment is available here (PDF).
As at February 2007, legislation is under discussion in Costa Rica which would prohibit all corporal punishment of children, including within the family. For further details, see the country report for Costa Rica.
Fiji
High Court of Fiji at Lautoka rules against judicial and school corporal punishment
On 21 March 2002, the High Court of Fiji at Lautoka ruled on the case of Naushad Ali v State (Criminal Appeal No. HAA 0083 of 2001), concerning an appeal against a judicial sentence of six strokes of corporal punishment. In previous cases courts had ruled against the use of corporal punishment, but Naushad Ali was the first which examined the constitutionality of corporal punishment. In its submission to the Court, the Fiji Commission on Human Rights had requested that corporal punishment in schools also be considered, arguing that all corporal punishment is against section 25(I) of the Constitution and international human rights law.
Section 25(1) of our Constitution (1997) states: “Every person has the right to freedom from torture of any kind, whether physical, mental or emotional, and from cruel, inhumane, degrading or disproportionately severe treatment or punishment.” The judgment stated that “the interpretation of a constitution must reflect changes in society” (as reflected in section 3 of the Fiji Constitution itself) and that “punishment and treatment of persons by state institutions that may have been condoned in the past may be offensive for the present”, and went on:
“The wording of Section 25(1) of our Constitution is almost identical to Article 5 of the Universal Declaration and Article 7 of the International Covenant on Civil and Political Rights. As such we are bound to interpret Section 25(1) in consonance, with international human rights laws….”
The judgment paid particular attention to judgments on similar provisions in the Constitutions of Namibia (Ex Parte Attorney General of Namibia: in re Corporal Punishment by Organs of State) and Zimbabwe (Ncube and Others v State) (see [LINKS TO RELEVANT PARAS BELOW]), noting that “while there are slight variations in language it is clear that the interpretations of the provisions confirm to a clear pronouncements to the banning of corporal punishment, whether judicial or quasi judicial and administrative, including corporal punishment in schools”.
In addressing corporal punishment in schools, the judgment stated:
“Children have rights no wit inferior to the rights of adults. Fiji has ratified the Convention on the Rights of the Child. Our Constitution also guarantees fundamental rights to every person. Government is required to adhere to principles respecting the rights of all individuals, communities and groups. By their status as children, children need special protection. Our educational institutions should be sanctuaries of peace and creative enrichment, not places for fear, ill-treatment and tampering with the human dignity of students.”
The judgment concluded that the sentence of six strokes be quashed and:
“The Court further rules that the provisions on Corporal punishment under the Penal Code and the Criminal Procedure Code breach section 25(1) of the Constitution and are, therefore, unlawful. It is further declared that the infliction of corporal punishment in schools in pursuance of the Ministry of Education guidelines or otherwise is unconstitutional and unlawful and in conflict with Section 25(1) of the Constitution.”
The full text of the Fiji judgment is available here (PDF).
A petition brought by the Parents’ Forum for Meaningful Education and its President, Kusum Jain challenged the legality of corporal punishment in schools. The Petition succeeded and the Court, in a judgment delivered on December 1 2000 directed the State to ensure "that children are not subjected to corporal punishment in schools and they receive education in an environment of freedom and dignity, free from fear".
The Government, defending the use of corporal punishment, quoted English common law and the leading case of R v Hopley (1860) which held that a parent or school teacher had a right to use "reasonable and moderate" corporal punishment. The judges stated: "It may be noted that this decision was rendered about one and a half centuries back. Since then thinking has undergone a sea change. The United Nations Convention, to which India is a signatory, is a testimony of that change and the importance which is being attached to the child. Law cannot be static. It must move with the time. The rights of the child cannot be ignored…
"Before parting with the case we would like to observe that fundamental rights of the child will have no meaning if they are not protected by the state… The State must ensure that corporal punishment to students is excluded from schools. The State and the schools are bound to recognise the right of the children not to be exposed to violence of any kind connected with education".
The full judgment is available at www.pfmeonline.org
Israel
Supreme Court of Israel declares all corporal punishment unlawful – 2000
In January 2000 Israel’s Supreme Court effectively banned all parental corporal punishment, however light. The leading judge wrote:
"It may be argued that this ruling is one that the community will be unable to bear, for many parents make use of force that is not disproportionate in nature against their children (e.g., a light slap on the bottom or the hand) in order to educate and discipline them. Are these parents criminals?
"The proper response is that in the legal, social and educational reality in which we live, we cannot leave open the definition of ‘reasonable’ and thus compromise at the risk of danger to the health and welfare of children. We must also take into account that we live in a society in which violence is as pervasive as a plague; an exception for "light" violence is likely to degenerate into more serious violence. We cannot endanger the bodily and mental integrity of the minor with any type of corporal punishment; the type of permissible measures must be clear and unequivocal, the message being that corporal punishment is not permitted…"
After quoting article 19 of the Convention on the Rights of the Child, the judgment concludes:
"Accordingly, we decide that corporal punishment of children, or humiliation and derogation from their dignity as a method of education by their parents, is entirely impermissible, and is a remnant of a societal-educational outlook that has lost its validity. The child is not the parent’s property and cannot be used as a punching bag the parents can beat at their leisure, even when the parents honestly believe that they are fulfilling their duty and right to educate their child. The child depends upon the parents, is entitled to parental love, protection and the parents’ gentle touch. The use of punishment which causes hurt and humiliation does not contribute to the child’s personality or education, but instead damages his or her human rights. Such punishment injures his or her body, feelings, dignity and proper development. Such punishment distances us from our goal of a society free of violence. Accordingly, let it be known that in our society, parents are now forbidden to make use of corporal punishments or methods that demean and humiliate the child as an educational system."
Unofficial translation: Israel Supreme Court, Criminal Appeal 4596/98 Plonit v A.G. 54(1)P.D. p. 145
For full text of unofficial translation of judgment in PDF format, click here.
Italy
Supreme Court of Italy declares all corporal punishment unlawful — 1996
On May 16 1996 Italy’s highest Court, the Supreme Court of Cassation in Rome, issued a decision prohibiting all parental use of corporal punishment.
The judgment states " …the use of violence for educational purposes can no longer be considered lawful".
Judge Francesco Ippolito, who wrote the judgment, explained that the judges "considered the case as an opportunity to establish the legal principle that parents in Italy are absolutely forbidden from using any violence or corporal punishment to correct their children’s conduct". The judge predicted that the new juridical principle would filter into society as a new norm and create an atmosphere in which physical chastisement of children is not socially acceptable.
The judgment states that "the very expression ‘correction of children’, which expresses a view of child-rearing that is both culturally anachronistic and historically outdated, should in fact be re-defined, abolishing any connotation of hierarchy or authoritarianism and introducing the ideas of social and responsible commitment which should characterise the position of the educator vis à vis the learner. The term ‘correction’ should be understood as a synonym for education and refer to the conformative spirit which should be a part of any educational process.
"In any case, whichever meaning is to be reassigned to this term in family and pedagogic relationships, 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 which the [Italian] 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 co-existence, cannot be achieved by using violent means which contradict these goals".
Cambria, Cass, sez. VI, 18 Marzo 1996 [Supreme Court of Cassation, 6th Penal Section, March 18 1996], Foro It II 1996, 407 (Italy). (see also commentary and interview with Judge Ippolito in Susan H Bitensky, "Spare the Rod, Embrace our Humanity: toward a new Legal Regime Prohibiting Corporal Punishment of Children", University of Michigan Journal of Law Reform, vol. 31, Issue 2, Winter 1998 (University of Michigan Law School, 625 South State Street, Ann Arbor, MI 48109-1215 ( (1) 734 763-6100)
Namibia
Corporal punishment in schools and the penal system declared unconstitutional and unlawful
Ex parte Attorney General, Namibia: in Re Corporal Punishment by Organs of State, 1991(3)SA 76
In 1991 the Namibian Supreme Court declared that corporal punishment breached article 8(2)(b) of the Constitution: "No persons shall be subject to torture or to cruel, inhuman or degrading treatment or punishment".
The leading judge noted that it would not be appropriate "to allow corporal punishment which is unconstitutional to continue to be inflicted until Parliament makes the necessary amendments". So the Court made two orders:
"1. It is declared that the imposition of any sentence by any judicial or quasi-judicial authority, authorising or directing any corporal punishment upon any person is unlawful and in conflict with article 8 of the Namibian Constitution.
"2. It is further declared that the infliction of corporal punishment in Government schools pursuant to the existing Code formulated by the Ministry of Education, Culture and Sport or any other direction by the said Ministry or any other organ of the Government, is unconstitutional and unlawful and in conflict with article 8 of the Namibian Constitution."
Full judgment available in South African Law Reports
Nepal
Nepal Supreme Court declares “minor beating” defence unconstitutional
On January 6 2005, the Supreme Court of Nepal declared that parents, other family members and teachers no longer have a defence for “minor beating” of a child under the Children Act 1992. The Court issued a directive order to the Office of the Prime Minister and the Council of Ministers, asking them “to pursue appropriate and effective measures to prevent physical punishment as well as other cruel, inhuman or degrading treatment or punishment or abuse being imposed or inflicted on, or likely to be imposed or inflicted on children”.
The decision followed an application made by the Center for Victims of Torture. Section 7 of the 1992 Act, protecting children from cruelty and abuse, stated that “any act by the mother, father, family member, guardian or teacher to scold the child or give him/her minor beating for the sake of his or her interests shall not be deemed to violate this section. The words “or give him/her minor beating” were declared null and void by the Court, as being inappropriate and contrary to the Constitution.
The full judgment is available here.
South Africa
Case concerning juvenile whipping of juveniles: judgment
The full text of this judgment can be found at www.concourt.gov.za/judgments/1995/williams.html
Christian schools challenge to corporal punishment ban rejected: summary
Christian Education South Africa v Minister of Education
Constitutional Court - CCT4/00
2000 (4) SA 757 (CC); 2000 (10) BCLR 1051 (CC)
18 August 2000
Freedom of religion -- right to community religious practices -- prohibition of corporal punishment in schools - prohibition not unconstitutional
A summary of this case can be found at www.concourt.gov.za/cases/2000/christianedusum.shtml where you can also download a PDF of the full judgment.
Zimbabwe
Zimbabwe Supreme Court — judgments condemn judicial corporal punishment
S v Ncube; S v Tshuma; S v Ndlovu 1988(2) SA702 (ZSC)
S v Juvenile 1990(4) SA151 (ZSC)
Full judgments available in South African Law Reports.