Summary of law reform necessary to achieve full prohibition

Prohibition is still to be achieved in the home, schools and alternative care settings.

There is no specific defence available to parents and others who use corporal punishment but corporal punishment by parents is tolerated in society and legal provisions against violence and abuse are not interpreted as prohibiting all corporal punishment in childrearing. The near universal acceptance of a certain degree of violence in “disciplining” children necessitates clarity in law that no corporal punishment is lawful or acceptable. Explicit prohibition should be enacted of all corporal punishment, however light, by all persons with authority over children, including parents.

Explicit prohibition should be enacted of corporal punishment in all schools, public and private, and all alternative care settings, including public and private day care, residential institutions, foster care, etc.

Current legality of corporal punishment

Home

Corporal punishment is lawful in the home. The Civil Code (amended 1995) states that the parent-child relationship should be one of “mutual respect” (article 371), but this is not interpreted as prohibiting parental corporal punishment. A Constitutional amendment in 2000 (article 22bis), concerning the protection of the child’s moral, physical and sexual integrity, was not regarded as changing the ways in which parental authority should be exercised. Provisions against violence and abuse in the Penal Code as amended by the Law Concerning the Penal Protection of Minors (2000) are not interpreted as prohibiting all corporal punishment in childrearing.

Following a complaint against Belgium brought in 2003 by the World Organisation Against Torture under the Collective Complaints procedure of the European Social Charter, the European Committee of Social Rights concluded that Belgium was in violation of Article 17 of the Charter because there is no explicit prohibition in law of corporal punishment of children by parents and other carers (including non-institutional childcare facilities and arrangements). (Resolution ResChS(2005)10, Collective complaint No. 21/2003 by the World Organisation against Torture (OMCT) against Belgium, adopted by the Council of Ministers on 8 June 2005)

Schools

Corporal punishment is unlawful in schools under case law relating to provisions against assault in the Criminal Code, but there is no explicit prohibition in legislation.

Penal system

Corporal punishment is unlawful as a sentence for crime. It is not a permitted punishment under the Criminal Code.

Corporal punishment is unlawful as a disciplinary measure in penal institutions. The Act concerning the principles of the administration of prison establishments and the legal status of detainees does not include corporal punishment among its provisions for disciplinary regimes. A federal Bill amending legislation on youth protection and addressing juvenile justice was adopted in 2006 but we have no details of its provisions.

Alternative care

In the Flemish Community, corporal punishment is prohibited in institutions in article 28 of the Decree of the Flemish Council (7 May 2004) and articles 11 and 13 of the Flemish Government Decree of 13 July 1994 concerning grants to institutions for youth, but there is no prohibition in relation to non-institutional care. To our knowledge, there is no explicit prohibition of corporal punishment in alternative care settings in the French Community or the German-speaking Community.

Prevalence research

In telephone interviews with 1,070 persons aged 15 years and over in 2004, 77% said they believe it is acceptable for parents to smack their children, including 17% who believe it is always acceptable and 60% who believe there are some circumstances in which it is acceptable; 19% believe it is unacceptable in any circumstances. (Market & Opinion Research International (2004), “Attitudes towards smacking children: Belgium”, Research conducted for the Association for the Protection of All Children)

Recommendations by human rights treaty bodies

Committee on the Rights of the Child

“The Committee welcomes efforts by the State party to implement the Committee’s concluding observations on the State party’s second report in 2002 (CRC/C/15/Add.178). However, some recommendations have not been given sufficient follow-up.

“The Committee urges the State party to take all necessary measures to address those recommendations from the concluding observations of the State party’s second periodic report that have not yet been, or not sufficiently, implemented including those related in particular to coordination, data collection, discrimination against children living in poverty, the right of the child to be heard, corporal punishment and juvenile justice. In this context, the Committee draws the attention of the State party to its general comment No. 5 (2004) on general measures of implementation of the Convention on the Rights of the Child.

“The Committee is concerned that the State party has not taken the necessary measures to ensure that corporal punishment in the family and non-institutional childcare settings is explicitly prohibited by law.

“In light of its general comment No. 8 (2006) on the right of the child to protection from corporal punishment and other cruel or degrading forms of punishment and its previous recommendations (CRC/C/15/Add.178, para. 24(a)), the Committee urges the State party to prohibit corporal punishment of children in all settings, notably in family and in non-institutional childcare settings as a matter of priority. The Committee also recommends that the State party conduct awarenessraising campaigns and parenting education programmes to ensure that non-violent alternative forms of discipline are used, in a manner consistent with the child’s human dignity.”
(18 June 2010, CRC/C/BEL/CO/3-4, Concluding observations on third/fourth report, paras. 7, 8, 39 and 40)

“The Committee notes with satisfaction the numerous initiatives taken in the area of child abuse, including sexual abuse, such as the Law on the Criminal Protection of Minors (of 28 November 2000), amendments to the Criminal Code and the adoption of article 22 bis of the Constitution concerning the protection of the child’s moral, physical and sexual integrity. But it remains concerned that corporal punishment is not expressly prohibited by law.

“The Committee recommends that the State party:

1. Take legislative measures to prohibit corporal punishment of children in the family, in schools and in institutions;
2. Continue to carry out public education campaigns about the negative consequences of corporal punishment, and promote positive, non-violent forms of discipline;
3. Establish effective procedures and mechanisms to receive, monitor and investigate complaints, and to intervene where necessary....”

(13 June 2002, CRC/C/15/Add.178, Concluding observations on second report, paras. 23 and 24)

“…The Committee further encourages the State party to consider reforming its legislation with a view to ensuring the prohibition of corporal punishment within the family.”
(20 June 1995, CRC/C/15/Add.38, Concluding observations on initial report, para. 15)

Committee Against Torture

“While it welcomes measures adopted by the State party to combat and eliminate violence against women, such as the adoption of the Federal Action Plan 2004-2007 to combat domestic violence, the Committee notes with concern the lack of any coordinated national strategy or programme to combat all forms of violence against women and girls. The Committee is likewise concerned at the persistence of corporal punishment of children within the family and the fact that this practice is not prohibited by law (arts. 2 and 16).

The Committee recommends that the State party adopt and implement a coherent and comprehensive national strategy for the elimination of violence against women and girls that includes legal, educational, financial and social components. It also requests the State party to strengthen its cooperation with NGOs working in the area of violence against women. The State party should take the necessary steps to include provisions banning corporal punishment of children within the family in its legislation. The State party should guarantee women and child victims of violence access to complaint mechanisms, punish the perpetrators of such acts in an appropriate manner and facilitate victims’ physical and psychological rehabilitation.”
(19 January 2009, CAT/C/BEL/CO/2, Concluding observations on second report, para. 24)

Committee on Economic, Social and Cultural Rights

“The Committee notes that corporal punishment of children within the family has not yet been included in the Criminal Code as a specific offence.

“The Committee recommends that the State party adopt specific legislation prohibiting all forms of corporal punishment of children within the family.”
(3 December 2007, E/C.12/BEL/CO/3, Concluding observations on third report, paras. 19 and 33)

“The Committee recalls that the situation, which was found not to be in conformity with the Charter in both the previous conclusion and in its decision on the merits of the World Organisation against Torture (OMCT) v Belgium (complaint No. 21/2003 decision on the merit, 7 September 2004), has not changed. Since then the Committee clarified that in order ‘to comply with Article 17, states’ domestic law must prohibit and penalise all forms of violence against children, that is acts or behaviour likely to affect the physical integrity, dignity, development or psychological well being of children. The relevant provisions must be sufficiently clear, binding and precise, so as to preclude the courts from refusing to apply them to violence against children. Moreover, states must act with due diligence to ensure that such violence is eliminated in practice’ (World Organisation against Torture (OMCT) v Portugal, complaint No. 34/2006, decision on the merits of 5 December 2006, §§19-21). The Committee concludes that Belgium is not in conformity with Article 17 on the ground that domestic law does not fulfill the conditions set above as far as corporal punishment of children is concerned.

...

“The Committee concludes that the situation in Belgium is not in conformity with Article 17§1 of the Revised Charter on the ground that domestic law does not penalize all form of violence against children in the family.”
(2007, Conclusions XVIII-1, vol.1)

“The Committee furthermore recalls that corporal punishment is unlawful in schools and that by Decision of the Flemish Government regarding youthcare of 1994 (Besluit van de Vlaamse regering inzake de erkenningsvoorwaarden en de subsidienormen voor de voorzieningen van de bijzondere jeugbijstand), corporal punishment is prohibited in institutional care. It asks whether such a regulation exists for the French Communities.

“The Committee recalls that Article 17 requires a prohibition in legislation against any form of violence against children, whether at school, in other institutions, in their home or elsewhere. It considers that this prohibition in legislation must be combined with adequate sanctions in penal or civil law.

“In this regard, the Committee recalls its decision on the merits in World Organisation against Torture (‘OMCT’) v. Belgium (Collective Complaint No. 21/2003, decision on the merits, 7 December 2004), in which it found that Belgium was in violation of Article 17 of the Charter since there was no prohibition in legislation of corporal punishment of children within the family. The Committee notes that the situation has not been remedied.

…

“The Committee concludes that the situation in Belgium is not in conformity with Article 17 of the Charter on the ground that there is no prohibition in legislation of all corporal punishment of children within the family.”
(July 2005, Conclusions XVII-2)

“The Committee observes from Summary Record on the 226^th meeting of the United Nations Committee on the Rights of the Child that corporal punishment is unlawful in schools in Belgium. There is however no prohibition of corporal punishment of children within the family. The Committee observes that the United Nations Committee encourages Belgium to reform its legislation with a view to ensuring the prohibition of corporal punishment within the family. This would be in line with the relevant provision in the Convention on the Rights of the Child.

Referring to its general observation with respect to Article 17, the Committee asks the Government whether Belgian legislation contains a prohibition against corporal punishment exercised within the family and in institutions other than schools….

“The Committee defers its conclusion pending an answer to the questions asked about the extent to which legislation in Belgian prohibits the corporal punishment of children.”
(1 January 2001, Conclusions XV-2 vol. 1, pages 109-112)

Universal Periodic Review

Belgium was examined in the first cycle of the Universal Periodic Review process in 2011. The Government did not accept the recommendation to explicitly prohibit corporal punishment of children (A/HRC/18/3, Report of the Working Group, para. 103(10)). Examination in the second cycle is scheduled for 2016.