New General Comment on Corporal Punishment by the Committee on the Rights of the Child

At its 42^nd 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 (articles 19, 28(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, humiliated, 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 16 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 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: http://www.unhchr.ch/tbs/doc.nsf/(Symbol)/CRC.C.GC.8.En?OpenDocument

Top