Last updated: July 2012
STATES WITH FULL ABOLITION
In the following 33 states, children are protected by law from all corporal punishment (most recent first):
In addition, in Italy in 1996 the Supreme Court in Rome declared all corporal punishment to be unlawful; this is not yet confirmed in legislation.
In Nepal in 2005, the Supreme Court declared null and void the legal defence in the Child Act allowing parents, guardians and teachers to administer a "minor beating"; the Child Act is yet to be amended to confirm this.
On 14 July 2011, the Republic of South Sudan became the 193rd member state of the United Nations, having achieved independence on 9 July. South Sudan can now be added to the list of states which have achieved full prohibition, though legislation prohibiting corporal punishment was originally enacted prior to independence.
In 2005, under the Interim Government of Southern Sudan, the Interim Constitution of Southern Sudan was passed which stated in article 21(1):
Prohibition was confirmed in article 21 of the Child Act (2008), entitled “Right to Protection from Torture, Degrading Treatment and Corporal Punishment”:
A new Constitution the Transitional Constitution of the Republic of South Sudan (2011) came into force on independence. It includes the prohibition of corporal punishment of children by all persons, including parents, in article 17(1):
The Law on the Protection of the Rights of the Child (2010) was enacted on 4 November 2010 and came into force in May 2011. Despite the Government’s rejection of the 2009 UPR recommendations to prohibit all corporal punishment, this new law makes corporal punishment of children unlawful in all settings, including by parents in the family home.
Article 21 of the Law on the Protection of the Rights of the Child (2010) states:
Article 3(ç) defines “physical violence” as “every attempt to damage or actual physical damage, or injury to the child, including corporal punishment, which are not accidental” (official translation). Corporal punishment is defined in article 3(f):
The Law provides for its implementation through structures at central and local levels at central level the National Council for Protection of Child Rights, the Minister Coordinating Action on Protection of Child Rights and the State Agency for the Protection of Child Rights, and at local level the Unit for the Rights of the Child at the Regional Council and the Children’s Protection Unit at municipality/commune level to work with non-profit organisations in line with rules determined by the Council of Ministers (articles 32 to 39).
Article 40 of the Law punishes violations of the rights mentioned in articles 21 and 26 (and others), when they are not offences under criminal law:
The Criminal Code, as amended in 2008 by Law No. 9859, punishes “physical or psychological abuse of the child by the person who is obliged to care for him/her” with imprisonment from three months to two years (article 124b).
Article 53 on protection of the Law on the Protection of the Child (2010) states:
The article is in Title II, Chapter 1 of the Law, which protects children generally from violence and neglect and applies to children wherever they are.
Article 107 states that persons who inflict cruel inhuman or degrading punishment on children are liable to the penalties in the penal code; article 130 states that international conventions ratified by the Republic of Congo on the rights of the child are an integral part of this law, and article 131 repeals all previous laws in conflict with the new law.
In its report to the Committee on the Rights of the Child in 2010, prepared by the Ministere des Affairs Sociales, de l’Action Humanitaire et de la Solidarite, the Government confirms that prohibition now extends to the home setting. It also notes the need for monitoring implementation of the prohibition and for awareness raising and education measures to be undertaken.
On 4 August 2010, Kenya held a referendum on a proposed new Constitution. The result was a “Yes” vote and the Constitution came into force on 27 August 2010. The Bill of Rights protects the right of every person not to be subjected to corporal punishment by any person in any setting. Article 29 (Freedom and security of the person) states:
The rights apply to all persons and all settings, public and private. Article 20 (Application of Bill of Rights) states:
Specific application of certain rights to certain groups of persons is addressed in Part 3 of the Bill of Rights, stating that this “shall not be construed as limiting or qualifying any right” (article 52). Article 53 (Children) in this Part states:
Kenya must now review and amend legislation which is incompatible with the new Constitution. This includes repealing the right of parents and others to “administer reasonable punishment” from article 127 of the Children Act (2001), the authorisation for school corporal punishment in the Education (School Discipline) Regulations, and any other laws which authorise corporal punishment in institutions and other settings. However, the Constitutional prohibition of corporal punishment overrides these provisions, making corporal punishment unlawful with immediate effect. Article 2 (Supremacy of this Constitution) states:
In July 2010, Parliament passed Law No. 2010-40 of 26 July 2010, amending article 319 of the Penal Code to remove the clause which provided a legal defence for the use of corporal punishment in childrearing.
Prior to the reform, article 319 of the Penal Code punished assault and violence which did not lead to serious or lasting consequences for the victim, but stated that “correction of a child by persons in authority over him is not punishable”.
The new law explicitly repeals this clause, making it a criminal offence to assault a child even lightly. Publication of the law in the Official Gazette, in July 2010, was accompanied by a statement from the Constitutional Council that the new law is wholly compatible with the Constitution and its effect is to make the provisions against light assault in article 319 of the Penal Code equally applicable to “correction” of children.
Serious assault is punishable under other articles in the Penal Code, and the Code of Child Protection provides legal protection from other forms of violence, including “repeated violations of [the child’s] physical integrity”.
The full text of the law and the statement of the Constitutional Council, in French, is available in the Tunisia Official Gazette.
Article 2 of the Law of 6 May 2010 “On the Prevention of Family Violence” amends the Family Code (1964) by inserting a new article 96 which prohibits all corporal punishment in childrearing:
The new law was signed by the President on 18 June 2010 and came into force on 1 August.
Article 40 of the Polish Constitution of 1997 prohibits corporal punishment, but there was a lack of consensus as to whether or not this applied in private spheres such as the home and privately-run alternative care settings. The Government’s commitment to full prohibition was confirmed to the Council of Europe Commissioner for Human Rights in June 2008. The new article 96 of the Family Code is explicitly clear that all corporal punishment of children is prohibited.
Article 3 of the Children and Youth Act, adopted in December 2008 and in force from January 2009, states (unofficial translation):
Article 2 of the Law on Children and the Family, adopted in December 2008, states:
A review of the law, parliamentary debate and official statements, including the opinion of the State Council (Conseil d’Etat), confirms that the new law was intended to prohibit all corporal punishment in the home and is interpreted in this way. Further details of the passage of the law can be found here.
There is no legal defence in the Penal Code for the use of corporal punishment in “disciplining” or “correcting” children and the right of paternal punishment in the Civil Code was abolished in 1939. This means that legal provisions against assault apply to children as to adults. Article 401bis of the Penal Code punishes violence against children with imprisonment and a fine, with the exception of “light assault”, which is punishable with a fine under articles 563 and 564.
During debate on the bill, the State Council affirmed that the intention of the new law was to ensure prohibition of corporal punishment of children and referred to the Council of Europe’s recommendation on the issue (Recommendation 1666 (2004), Europe-wide ban on corporal punishment of children). The State Council was of the opinion that this was already the case under the Penal Code (Opinion of the State Council, 17 June 2008, report no. 5754/9). The Parliamentary Commission rejected this argument and decided that it was necessary to specify in the new law that corporal punishment of children within the family is prohibited.
In 2008, the Family Code (2001) was amended to recognise the right of children to protection from all corporal punishment and to explicitly prohibit its use by parents and others with parental authority.
Article 53 of the Code, on “The right of the child to be protected”, states in paragraph 4:
Article 62, on “Parents’ rights”, states in paragraph 2:
To support the law reform and its implementation, in November 2008 the Information Office of the Council of Europe in Moldova launched the Council of Europe Campaign to abolish corporal punishment, “Raise your hand against smacking”, at a round table event held at Parliament. The launch of the campaign was attended by MPs, members of the Parliamentary Committee for Social Protection, Health and Family, the Deputy Minister of Social Protection, Family and Child, representatives from the Ministry of Justice and the Ministry of Internal Affairs, UNICEF, UNDP and national children’s rights NGOs. It received good media coverage. Following presentation of the campaign, there were constructive discussions and debates on the need to adopt national policies to combat all forms of violence against children and to strengthen cooperation between the Moldovan Parliament, the Government and civil society on this issue.
Corporal punishment is prohibited in all settings and by all persons with authority over children, including by parents in the home, under a law enacted in June 2008. Up to this time, corporal punishment had been lawful under article 143 of the Family Code, which stated that "paternal authority confers rights and imposes the duty to educate, are for, watch over and, with moderation, correct the son or daughter". The Code on Children and Adolescents protected children from abuse and cruel, inhuman or degrading treatment (article 13) and to physical, psychological and moral integrity (article 24), but did not prohibit all corporal punishment of children.
In October 2005, the Criminal Court of Cassation of the Second Circuit Court of San Jose stated that article 143 of the Family Code could "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" and that "even though vested with parental rights and duties have no 'right' to hurt their children" (Judgment: 2005-1062, Case No. 02-002448-0369-PE-(3)).
In June 2008, article 143 of the Family Code was amended to state:
At the same time, a new article was added to the Code on Children and Adolescents, as part of the provisions on "The Rights of Personality". Article 24bis is entitled "The right to discipline free from corporal punishment and other degrading forms of treatment", and explicitly prohibits all forms of corporal punishment in all settings:
Significantly, a report issued by the Legislative Ad-hoc Subcommission (File No. 15.34) confirms that dissenting opinions on prohibition have been taken into account in enacting prohibition. It states:
Article 353 of the Children’s Code (2007) states:
Violence against children is punished according to article 356, including minor, repeated assaults. Article 357 clarifies that corporal punishment is considered to be a breach of the law:
The Code also explicitly prohibits corporal punishment in schools and in penal and care institutions. Article 376 states:
The Government has taken a number of measures to support implementation of the prohibition, including:
In its third/fourth report to the UN Committee on the Rights of the Child (2011), the Government noted that the majority of teachers and parents still believe that beating a child is the most appropriate punishment and corporal punishment continues to be used. Further work is needed to ensure full implementation of the law and elimination of corporal punishment in practice.
Corporal punishment is prohibited in the home under a 2007 amendment to the Civil Code. The Code had previously recognised the “right” of parents and guardians to use “reasonable and moderate” forms of “correction” but these provisions have been removed from the law, ensuring that children have the same protection from assault as adults. Article 154 now states that in the exercise of their responsibility, parents/tutors must respect the physical and psychological integrity of their children.
In 1999 the Ministry of Employment and Social Affairs supported a widespread awareness-raising campaign highlighting the dangers of corporal punishment and promoting positive, non-violent forms of discipline. In November 2004, the Director of Childhood announced the Government’s intention to pursue law reform. Prohibition was achieved when Congress passed the new law on 20 December 2007. Media coverage of the reforms emphasised that the new legislation means parents may no longer smack their children in the name of discipline.
In December 2007, Venezuela enacted legislation which prohibits all corporal punishment of children, including in the home. A new article (article 32-A “the right to good treatment”) was inserted into the Law for the Protection of Children and Adolescents which explicitly states that “all forms of physical and humiliating punishment are prohibited”. It puts an obligation on “parents, representatives, guardians, relatives, and teachers” to use “non-violent methods of education and discipline to raise and educate their children”, and places an obligation on the State to “ensure policies, programmes and protection measures are in place to abolish all forms of physical and humiliating punishment of children and young people”.
The stated purpose of the law is clear (unofficial translation):
The full text of article 32-A which was approved by the National Assembly in February 2007 before finally being enacted in December states:
Article 358 of the amended Law for the Protection of Children and Adolescents re-emphasises that the duties and rights of parents in childrearing exclude the use of corporal punishment:
Corporal punishment had previously been lawful in the home and other settings under the Civil Code provisions which recognised the imposition of “adequate/moderate correction” by parents, guardians and tutors (articles 265 and 349) and by people or entities temporarily responsible for the care of the child or adolescent (article 396).
Details of laws relating to corporal punishment of children in all settings are in the full country report for Venezuela.
On 20 November 2007, a new law prohibiting all corporal punishment of children (“Proyecto de Ley Sustitutivo Prohibición del castigo físico”) was passed by a majority vote in the House of Representatives. In August, the bill had been agreed unanimously by the Senate. The prohibition followed closely on the government’s public commitment to implement all the recommendations made in the final report of the UN Secretary General’s Study on Violence against Children, which included the recommendation to prohibit all corporal punishment of children by the year 2009.
Previously, the right of parents and others to inflict corporal punishment on children in the guise of “moderate/adequate correction” was recognised in the Civil Code (articles 261 and 384) and in the Children and Adolescents Code (article 16). The new law repeals these provisions and explicitly prohibits all corporal punishment and other humiliating or degrading treatment of children. It states (unofficial translation):
Details of laws relating to corporal punishment of children in all settings are in the full country report for Uruguay.
On 4 September 2007, the Portuguese Parliament passed Law 59/2007 which amends the Penal Code to prohibit all corporal punishment of children, including by parents. The Law came into force on 15 September. Article 152 now states:
Previously, the Portuguese government had considered that the law already prohibited all corporal punishment. The Civil Code states that parent-child relations are characterised by obedience and parental authority (article 1878), but a 1994 Supreme Court decision (Supremo Tribunal de Justiça, 9 February 1994) had ruled that this does not give parents the right to use physical aggression in childrearing. And an earlier decision by the Supreme Court (18 December 1991) stated that a simple slap which caused no injury and no physical or mental suffering was considered a “light corporal assault” and so was covered by article 143.1 of the Criminal Code which punishes “whoever causes bodily injury or impairment of health of another”. Subsequent Supreme Court decisions (21 January 1999 and 4 March 1999) confirmed this ruling, and a Court of Appeal decision (12 October 1999) referred to the absence of a “right” to use physical discipline in the Civil Code.
In 2003, the World Organisation Against Torture brought a complaint against Portugal under the Collective Complaints procedure of the European Social Charter alleging that Portugal was in breach of article 17 of the Charter because legislation did not explicitly prohibit corporal punishment of children, including by parents. In view of the Portuguese case law described above, the European Committee of Social Rights concluded by 9 votes to 4 that there was no violation of Article 17 of the Revised Social Charter because section 143 of the Criminal Code as interpreted by the Supreme Court provided a legal prohibition of all forms of corporal punishment of children and that no legal provision authorised the use of corporal punishment of children (Resolution ResChS(2005)1, Collective complaint No. 20/2003 by the World Organisation against Torture (OMCT) against Portugal, adopted by the Council of Ministers on 20 April 2005).
But on 5 April 2006, the Supreme Court overturned its previous interpretation of legislation in ruling that slaps and spankings are “legal” and “acceptable”, and that failure to use these methods of punishment could even amount to “educational neglect”. The Supreme Court’s judgment stated:
The World Organisation Against Torture submitted a second complaint under the collective complaints procedure in May 2006. This time the European Committee of Social Rights found the situation in Portugal to be in breach of article 17 of the Revised Charter because there is no explicit prohibition in law of all corporal punishment of children, including in the home. In its decision, the Committee clearly stated the need for explicit and effective prohibition of corporal punishment (Collective complaint No. 34/2006 by the World Organisation against Torture (OMCT) against Portugal, Decision on the merits 5 December 2006, paragraphs 19 to 22):
Following this, the Government announced it would review the Criminal Code and explicitly prohibit all corporal punishment. Prohibition was finally enacted in September 2007.
Details of Portuguese laws relating to corporal punishment are in the full country report for Portugal.
On 16 May 2007, the New Zealand parliament passed by an overwhelming majority new legislation effectively prohibiting corporal punishment of children by parents. Before the new law was introduced, the New Zealand Crimes Act (section 59) recognised the right of parents to use “reasonable force” in disciplining children. The new Crimes (Substituted Section 59) Amendment Act in force from June 2007 removed this defence so that the criminal laws on assault apply equally to adults and to children.
In her speech to the third reading of the Bill in parliament, MP Sue Bradford who first introduced the law as a private members bill in 2005 emphasised the importance of recognising that hitting children in the name of discipline is violence and is unacceptable:
The new law allows for the use of reasonable force for purposes of protection from danger or prevention of damage to people or property (section 1) but states clearly that “nothing in subsection (1) or in any rule of common law justifies the use of force for the purpose of correction” (section 2). It also explicitly recognises standard police practice of exercising discretion as to whether or not to prosecute in very minor cases where there is no public interest in proceeding:
Sue Bradford called for close monitoring of future case law to ensure that these provisions are not misused as legal defences for hitting children.
She also called for a well planned public information campaign on the new law and alternatives to physical discipline; an increase in funding for community groups supporting children, parents and families; research and monitoring of public attitudinal change towards corporal punishment; and for close work between government and non-governmental organisations. She concluded:
On 6 March 2007, a new law prohibiting all corporal punishment by parents and carers was passed in the Senate. The law amends the provisions in the Civil Code on parental authority so that article 1:247 now states (unofficial translation):
Article 1:248 of the Code applies article 1:247 to all other persons acting in loco parentis.
The Cabinet agreed to proceed with prohibition in February 2005, following a government-commissioned study on the experiences of abolition in other European countries.
A Department of Justice press release at the time that the “Bill to contribute to the prevention of emotional and physical abuse of children or any other humiliating treatment of children in care and upbringing” was introduced to the Cabinet stressed that the primary purpose of the new law is “to set a standard”.
A later press release from the Department, in September 2005, emphasised that the law would bring the Netherlands into compliance with the UN Convention on the Rights of the Child and article 17 of the European Social Charter, and address the recommendations made to the Netherlands government by the Committee on the Rights of the Child and the European Committee of Social Rights. It also explained the anticipated impact of the ban in relation to criminal law:
On 19 October 2006, the Greek Parliament passed Law 3500/2006 on the Combating of Intra-family Violence, under which corporal punishment of children within the family is prohibited. Article 4 of the new law states:
Article 1532 of the Civil Code provides for various consequences for abuse of parental authority, the most serious being the removal of parental authority by the courts. An explanatory report issued to Parliament by Ministers responsible for the introduction of the bill confirmed that “corporal punishment is not included in the permissible disciplinary measure of article 1518 of the Civil Code”. Article 1518 enshrines parents’ right to use “corrective measures” but “only if these are necessary from a pedagogic point of view and do not affect the child’s dignity”.)
The new law results from the work of the Greek Network for the Prevention and Combating of Corporal Punishment of Children, a committee of government and non-government bodies established in October 2005 specifically to draft legislation which would prohibit all corporal punishment, following an earlier finding by the European Committee of Social Rights under the Collective Complaints procedure of the European Social Charter that Greece was in violation of article 17 of the Charter because of the absence of such a prohibition (Resolution ResChS(2005)12, Collective complaint No. 17/2003 by the World Organisation against Torture (OMCT) against Greece, adopted by the Council of Ministers on 8 June 2005).
Progress towards prohibition
December: Under the Collective Complaints procedure, the European Committee of Social Rights concluded that there was a violation of article 17 of the Charter because of the absence of explicit prohibition in law of corporal punishment of children within the family, in secondary schools and in other institutions and forms of childcare (7 December 2003, Complaint No. 17/2003 Decisions on the merits).
February: A Public Statement by the Greek Ombudsman requested that the government change the law so as to prohibit corporal punishment of children within the family.
April: The Minister of Justice formed a Committee to prepare a new Draft Law on Domestic Violence. The Deputy Ombudsman for Children’s Rights was invited to participate and to introduce proposals for the prohibition of corporal punishment
June: The Council of Europe’s Committee of Ministers adopted a resolution confirming the findings of the European Committee of Social Rights and noting the progress made by the Greek government towards prohibition of corporal punishment (8 June 2005, Collective Complaint No. 17/2003, Resolution ResChS(2005)12).
July: In its conclusions on examination of the Greek state party report under the reporting procedures of the European Social Charter, and in light of the findings under the Collective Complaint, the European Committee of Social Rights found the situation in Greece to be not in conformity with article 17 “on the ground that there is no prohibition in legislation of all corporal punishment of children” (Conclusions XVII-2).
October/November: The Greek Network for the Prevention and Combating of Corporal Punishment of Children, involving government and non-government organisations, was established specifically to draft legislation which would prohibit all corporal punishment. The media reacted positively to the public announcement of the Network. The action plan of the Network included various activities, such as seminars for professionals, further research, special publications, radio and TV spots. On 25 November , the Minister of Justice announced publicly the new Draft Law on Domestic Violence which was to be introduced for discussion in Parliament. Article 4 of the Draft Law was intended to prohibit corporal punishment, and stated: “Physical violence against children as a corrective measure in the context of their upbringing has the consequences of Article 1532 of the Civil Code”. (Article 1532 punishes abuse of parental authority.) In presenting the new Draft Law, the Minister of Justice stated: “The new law introduces crucial reforms, which I would like to stress in particular:.... For the first time physical violence against children, as a corrective measure in the context of their upbringing, is explicitly prohibited. Our country thus follows the recommendations of the Council of Europe, the UN Committee for the Rights of the Child, as well as the Public Statement of the Greek Ombudsman.”
November: The new law was announced in a press release issued by the Greek Ombudsman (Department of Children’s Rights) on 1 November:
Corporal punishment in the home was prohibited by an amendment to the Act on the Protection of Children and Guardianship Administration (1997), agreed by Parliament in December 2004, which came into force on January 1 2005.
Article 6, para. 5 of the Act now reads (unofficial translation): "The child has the right to be respected his/her human dignity, to be protected against abuse - physical, sexual and mental violence, failure to provide care and injury caused by any information. The child shall not be subjected to torture, corporal punishment and any cruel, inhuman or degrading punishment or treatment."
A new Law on Protection and Promotion of the Rights of the Child prohibits corporal punishment. The law passed both Chambers of Romanian Parliament in June 2004 and came into force on January 1 2005.
In section 3, Protection of the child against abuse and neglect, article 90 states: “It is forbidden to enforce physical punishments of any kind or to deprive the child of his or her rights, which may result in the endangerment of the life, the physical, mental, spiritual, moral and social development, the bodily integrity, and the physical and mental health of the child, both within the family, as well as in any institution which ensures the protection, care and education of children.”
In Ukraine, the Prevention of Domestic Violence Act (2001, in force 2002), made all intentional physical and psychological violence against any family member unlawful. Article 1 defines domestic violence as “any intentional action of one family member against another family member if such action infringes Constitutional and civil rights and freedoms of a family member and injures his physical, mental and moral health, and as well as child’s development”. It defines physical domestic violence as “an intentional beating, body injuring of one family member by another as well as intentional limitation of freedom, place of residence, food, clothing and other normal life conditions, which may result in victim’s death or may cause disturbance of his physical and mental health or may harm his honour and dignity”.
But it was not until the new Family Code (2003) came into force in January 2004 that all corporal punishment was explicitly prohibited. Article 150(7) states: “Physical punishment of the child by the parents, as well as other inhuman or degrading treatment or punishment are prohibited.”
In March 2003, the Icelandic government passed a new Children's Act which completes the process of total abolition of corporal punishment of children by making it unlawful in the home. Article 28 of the new Act states: "It is the parents obligation to protect their child against any physical or mental violence and other degrading or humiliating behaviour". This is interpreted by government and by the Ombudsman for Children as explicitly prohibiting corporal punishment by parents, and is supported by provisions in the 2002 Child Protection Act which had already placed an obligation on parents "to treat their children with care and consideration", and "to safeguard their welfare at all times". The new law will enter into effect on November 1 2003.
There is no legal defence available to parents who use corporal punishment, although there is a right to use physical restraint as an emergency measure when an individual is in danger of injuring himself or others. Cases of corporal punishment may come within the scope of the Child Protection Act (2002), which orders imprisonment "if those who have a child in their care mistreat the child mentally or physically, abuse him/her sexually or otherwise, or neglect the child mentally or physically, so that the child's life or health is at risk" (Article 98) and for "any person who inflicts punishments, threats or menaces upon a child, that may be expected to harm the child physically or mentally" (Article 99), and imprisonment or fines for "any person who subjects a child to aggressive, abusive or indecent behaviour or hurts or insults him/her" (Article 99).
In July 2000 the Bundestag added a new provision to the German Civil Code which states: "Children have the right to a non-violent upbringing. Corporal punishment, psychological injuries and other humiliating measures are prohibited".
Another Civil Code amendment encourages authorities to provide advice to families on resolving conflicts without violence. In 1997 German law was amended to prohibit "degrading methods of discipline including physical and psychological abuse", but this did not explicitly ban all physical punishment. In October 1998 the Families Minister in the new Government announced that it was committed to prohibiting all corporal punishment: in 2000 it fulfilled its commitment.
The Federal Government and NGOs have collaborated to launch a public campaign to accompany the law reform and encourage parents to raise their children by non-violent means.
The objective of the campaign is not to pillory parents - rather to sensitise them in measured ways as to how they can raise their children with due respect and care. The campaign is two-tiered. One part consists of posters, advertisements and television spots. The other consists of individual projects and community initiatives all around Germany, geared towards supporting parents in the raising of their children. To raise the public profile of the campaign, prominent personalities, including the Federal Minister for Family, Senior Citizens, Women and Youth have been appointed as ambassadors to promote childrearing by non-violent means.
The campaign website is at: www.mehr-respekt-vor-kindern.de
How Germany banned smacking - a brief summary
This briefing provides a few headlines on what the law reform actually means for children and families and on how and why the ban was introduced. Prepared by Phil Taverner, National Society for the Prevention of Cruelty to Children (NSPCC) Area Children's Services Manager (UK), who visited Germany to investigate the background to its smacking ban.
What the new law says
"Children have a right to be brought up without the use of force. Physical punishment, the causing of psychological harm and other degrading measures are forbidden".
Three interesting things to note about the wording of the law are:
At the same time the Socialgesetzbuch, the German childcare law, was amended to impose an active duty on local authorities to "promote ways in which families can resolve conflict without resort to force".
How the law was introduced
The Government's aims in taking this step closely matched those of the Swedish Government more than twenty years earlier. By banning all forms of corporal punishment they hoped to:
The factors that persuaded the Government that this change was necessary
How the change in law was communicated to the public
To this end the introduction of the law was accompanied by a public education campaign entitled "More Respect for Children". This was funded by Central Government but implemented by a combination of federal and local authorities and non-governmental organisations. The precise nature of the campaign varied from place to place due to Germany's federal structure, but employed a wide range of methods to get the message across. These included such things as slots on national TV, the production of leaflets and educational materials for parents, public events and workshops, the introduction of structured "courses" as part of adult education programmes and more.
The main criticism from childcare professionals and rights campaigners was that this campaign was not extensive enough. It is being evaluated at the moment. Preliminary results do show a shift in public opinion already, but the actual results of the evaluation will not be known until the autumn of 2002.
The continuing responsibility for the long-term implementation of the law has been passed to the federal and local authorities by the amendment to the childcare legislation mentioned above.
Although it is early days, there has not been a single prosecution of parents that refers to this new law so far, indicating that the "help instead of punishment" perspective is working.
The final word here should go to the children of Germany. An exercise was held in 2000, culminating in a two day summit meeting involving children elected from all parts of the country and Chancellor Schroeder. The workshop drew up a Charter of children's rights and responsibilities. Three of the children's seven demands were for action to protect children from all forms of physical harm or punishment. Freedom from being hit is clearly a priority for children.
In January 2000 the Israel Supreme Court effectively banned all parental corporal punishment, however light. One of the three judges wrote: "In the judicial, social and educational circumstances in which we live, we must not make compromises that can endanger the welfare and physical well-being of minors... If we allow 'light' violence, it might deteriorate into very serious violence. We must not endanger the physical and mental well-being of a minor with any type of corporal punishment. A truth which is worthy must be clear and unequivocal and the message is that corporal punishment is not allowed".
Israel's National Council for the Child declared that the ruling "finally recognised the right of children not to be exposed to violence of any kind, even when those who use violence make excuses for it, saying it is 'educational' or 'punitive'".
In the same year, the Knesset approved legislation to remove the common law "reasonable chastisement" defence. Click here for summary.
Corporal punishment is unlawful according to the Child Protection Act (2000). Article 11.2 states: "Every child has a right to protection against all methods of upbringing, that undermine his or her dignity, against physical, psychological or other types of violence and against all forms of influence which go against his or her interests." This is interpreted as prohibiting all corporal punishment of children, including by parents.
According to the Family Code (1985, amended 1992), the basic functions of the family include "establishing within the family relations based on respect, attachment, friendship, common efforts and reciprocal responsibility for its development" (article 4).
The Penal Code prohibits violence which leads to "severe", "medium" and "trivial" bodily injury (articles 128-130), particularly if the victim is a minor (article 131). However, the complexities of the procedure for prosecution in cases of "trivial" bodily injury under the Penal Procedures Code (articles 46 and 57) limit the legal protection afforded children, and there is as yet no associated case-law concerning corporal punishment.
When Croatia's Initial Report under the Convention on the Rights of the Child was examined by the Committee on the Rights of the Child in 1996, Government representatives assured the Committee that they would explicitly ban corporal punishment. A new family law received its third reading in the Croatian Parliament in June 1998. It includes a provision, like the Swedish law, prohibiting corporal punishment and humiliation. It came into effect from January 1 1999.
On June 19 1998 the Latvian Parliament adopted a new law on protection of children's rights. The Law on Protection of the Rights of the Child prohibits cruel treatment, torture and corporal punishment of children, including within the family. It states in article 9.2: “A child cannot be treated cruelly, cannot be tormented and physically punished, and his/her dignity and honour cannot be offended.” The Law makes “failure to discharge parental obligations … the malicious usage of parental authority, the physical punishing of a child, as well as cruel behaviour against him/her” offences under the law (article 24.4), and states that “expression of parental will regarding a child can be limited, regardless of their opinions and religious convictions, if it is discovered that they can physically or morally harm the further development of a child” (article 24.5).
As at 2005, proposals by the Ministry for Children and Family Affairs were under discussion for possible amendments to the Criminal Code and the Code of Administrative Violations with a view to further protecting children from physical and emotional violence in the family.
In May 1997 the Danish Parliament agreed 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".
A previous, less explicit reform came into effect in 1986: a private Bill passed by the Danish Parliament on 30 May 1985 came into force on January 1 1986. It amended the Majority Act to state: "Parental custody implies the obligation to protect the child against physical and psychological violence and against other harmful treatment". (A 1984 opinion poll had found only 25 per cent in favour of formal abolition of parents' right to hit children, and 68 per cent against abolition). Commentators indicated at the time that the law reform was an indication to parents that violence should never be used in childrearing, but that its legal effects were uncertain. Subsequently other legal commentators suggested that parents' traditional "right to punish" still existed, and allowed at least minor forms of physical punishment.
As the proposer of the 1997 Bill to amend the law told Parliament, "Danes are increasingly turning away from corporal punishment... A fresh opinion poll in January 1997 showed a clear majority - 57 per cent of the population - were against physical punishment. This shows an unmistakable shift against such punishment".
The proposer emphasised the educational purpose of the change: "In the opinion of the advocates of the change in the law, it is important for those groups who work with families to have firm, clear and unequivocal legal grounds for being able to say that under no circumstances may one use violence in the upbringing of a child... Doctors, the police and social workers come into contact with families where children are regularly beaten. These groups will - if the law is changed - be able to point out that it is wrong to hit a child and instead give advice on other ways to resolve conflicts". The purpose of the change was not to penalise more parents - on the contrary. But "clear legislation and a plainly worded explanation of the reasons for it are vital if we are to change public opinion on the issue of the corporal punishment of children".
The reform followed a series of hearings and consultations and a campaign led by the National Council for Children and Danish Save the Children. The National Council for Children, set up in 1994 for a three-year trial period to fulfil the function of children's ombudsman in Denmark, has now been given permanent status.
Professor Per Schultz Jorgensen, Chair of the Danish National Council for Children 1997 - 2000, comments:
The National Council for Children (Borneradet) was established as a permanent, inter-disciplinary and independent body in 1997 to ensure children's rights and to highlight and provide information on the conditions of children's lives.
Holmens Kanal 22, 1060 Copenhagen, Denmark; 00 45 33 92 4500; fax 00 45 33 92 4699; www.boerneraadet.dk
In June 1994, the Cyprus House of Representatives unanimously adopted a new law on prevention of family violence and protection of victims which criminalizes "the exercise of violence on behalf of any member of the family against another member of the family" (Law 147(1) June 1994). It states that, for the purposes of this law, violence means any unlawful act or controlling behaviour which results in direct actual physical, sexual or psychological injury to any member of the family. If any act takes place in the presence of children the act shall be considered as violence exercised against the children likely to cause them psychological injury and such acts or behaviour constitute a punishable offence.
The prohibition was reiterated in a new Act on Violence in the Family adopted in 2000.
In August 2005, the government’s response to the questionnaire in the UN Secretary General’s Study on Violence against Children stated that the Children Law provided for a “right to administer punishment”, but this provision was expected to be removed following review.
On March 15 1989 the Austrian Parliament voted to amend its family law and the Youth Welfare Act to state explicitly that in bringing up children "using violence and inflicting physical or mental suffering is unlawful". The new law was passed unanimously and without controversy. The Austrian Minister for Environment, Youth and the Family stated: "The motive for this reform is our knowledge of the immeasurable harm children suffer when parents are not willing or able to avoid physical punishment as a way of bringing up their children. I hope other countries will follow us in ruling out physical punishment".
Statement from Paul Arzt, Children's Ombudsperson for Salzburg and a spokesperson for the Austrian Conference of Ombudspersons for Children and Youth:
Paul Arzt, Kinder und Jugendanwaltschaft Salzburg, Strubergasse 4, A-5020 Salzburg, Austria 00 43 662 430 550; fax 00 43 662 430590, www.salzburg.com/kija
Each of the nine "lander" (regions) of Austria has an Ombudsperson for Children and Youth. Collectively they form the Conference of Ombudspeople for Children and Youth, in order to comment on federal matters.
In January 1987 an amendment to the Parent and Child Act took effect. It states: "The child shall not be exposed to physical violence or to treatment which can threaten his physical or mental health". This followed a recommendation from an official committee looking at child abuse and neglect, which was taken up by the Ministry of Justice. As was the case prior to legal reform in Denmark, a1983 opinion poll in Norway found that 68 per cent were still against prohibiting all physical punishment.
Up to 1972 the Norwegian Criminal Code on assault, dating from 1891, stated that parents and others in loco parentis had the right to use moderate corporal punishment as part of the upbringing of children. In 1972 that provision was removed, amid a lot of controversy. This caused more rather than less confusion about parents' rights to punish.
When the amendment to the Parent and Child Act was being debated in the Norwegian Parliament, the Minister of Justice suggested that even though parental physical violence was already prohibited in the Criminal Code, the new reform was not superfluous. For many people did not understand or know about the law, and making corporal punishment clearly illegal in the Parent and Child Act would inform the general public. There was considerable lack of clarity about parents' rights and the legal change in 1972 had been just as confusing as clarifying. Now there would be no doubt: in applying the criminal law, the child would have the same protection as everyone else from the use of violence. It was not sufficient to protect children from "real" pain and "unnecessary" humiliation. Corporal punishment as a way of bringing up children was no longer acceptable.
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." This reform in family law puts beyond doubt that the criminal law applies equally to assaults committed against children by parents and other carers.
Matti Savolainen of the Ministry of Justice in Helsinki, who was responsible for drafting the 1983 Act, describes section 1 of the Act as incorporating three strategies: "Firstly the Act attempts to establish certain 'positive' guidelines for the upbringing of the child. Secondly the Act makes it absolutely clear that all violations against the child's integrity (whether 'physical' or 'spiritual') which would constitute a criminal offence if committed by a third person (e.g. assault, unlawful imprisonment, libel, slander, etc.) are equally punishable even when committed by a parent with the intent to discipline the child. And under the Criminal Code even a petty assault committed against a child under 15 is subject to public prosecution when committed by a parent at home. Thirdly the Act explicitly forbids also any degrading treatment ('the child shall not be humiliated') even where such an act would not constitute a criminal offence and even if there are no other direct legal remedies available."
A public information campaign was launched by the Ministry of Justice and National Board of Social Affairs, including a leaflet entitled What is a good upbringing?, made available through health clinics, social welfare offices and so on. A large-scale campaign was also launched by the Central Union for Child Welfare, an NGO, together with the National Boards of Health and Social Affairs, including a leaflet When you can't cope, find help: don't hit the child.
There were also brief spots on national television at peak viewing time before the main evening news programme as the law came into effect. This is a translation of the commentary on one of them:
Sweden was the first country in the world to prohibit all corporal punishment of children. In 1979 a provision was added to the Parenthood and Guardianship Code which now reads: "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."
The proposal, together with a draft Bill, came from a multi-disciplinary Children's Rights Commission, chaired by an eminent judge, which emphasised: "The primary purpose of the provision is to make it clear that beating children is not permitted. Secondly, the Commission wishes to create a basis for general information and education for parents as to the importance of giving children good care and as to one of the prime requirements of their care. The proposed provision should, in the long term, contribute towards reducing the number of cases of acts of physical violence on children". It proposed a "recurrent general parent education programme". When the Bill went before Parliament it was passed by 259 votes to 6.
The Ministry of Justice led a very large-scale education campaign. A pamphlet distributed to every household with children emphasised that "the law now forbids all forms of physical punishment of children, including smacking etc, although it goes without saying that you can still snatch a child away from a hot stove or open window if there is a risk of its injuring itself".
The legal provision forms part of Sweden's family (civil) law. But its purpose is to emphasise 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.
A detailed research review of the effects of Sweden's ban has been carried out by Professor Joan E Durrant, Associate Professor and Head of the Department of Family Studies at the University of Manitoba. See A Generation Without Smacking - The impact of Sweden's ban on physical punishment (1.9 MB PDF).
Statement from Sweden's first Children's Ombudsman, Louise Sylwander:
Norr Malarstrand 6, Box 22106, 10422 Stockholm, Sweden www.bo.se
Additional Resources available to download:
In May 1996 the Supreme Court in Rome in a landmark judgement stated that "the use of violence for educational purposes can no longer be considered lawful". It stated 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 a vis the learner".
Section 7 of the Child Act (1992, in force 1993) states: “No child shall be subjected to torture or cruel treatment. Provided that, the act of scolding and minor beating to the child by his father, mother, member of the family, guardian or teacher for the interests of the child shall himself not be deemed to violate the provision of this section.” Following a writ petition filed by the Centre for Victims of Torture in Nepal on 16 June 2004, the Supreme Court ruled that the restrictive clause in section 7 was unconstitutional and, in accordance with article 88 of the Constitution (1990), declared the portion “or give him/her minor beating” null and void with immediate effect (Mr Devendra Ale et al v Office of the Prime Minister & Cabinet et al, Supreme Court decision 6 January 2005). The judgment also issued a directive to the government “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 and likely to be imposed or inflicted on children”.