Lawfulness of corporal punishment

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Corporal punishment is lawful in the home.

There is no specific defence available to parents and others who use corporal punishment but corporal punishment by parents is tolerated in society. The Civil Code (amended 1995) states that the parent-child relationship should be one of “mutual respect” (article 371), but this has not been interpreted as prohibiting parental corporal punishment. A Constitutional amendment in 2000 (article 22 bis), 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. A proposed amendment to the Civil Code is pending before the Senate (2005).

Article 398 of the Penal Code (2000) prohibits any form of violence, including “slapping and causing injury”, and all violations of a person’s physical integrity can be prosecuted, but whether or not a physical punishment constitutes “slapping and causing injury” is a matter for the judiciary to decide. Prosecution for violence to children tends to be restricted to severe cases. An amendment to the Penal Code in the Law Concerning the Penal Protection of Minors (2000, effective 2001) increased the penalties for violence towards children and recognises the facts of the victim being a minor and the relation of authority between perpetrator and victim as aggravating factors, but this law is seen mainly in the context of extreme violence and violence outside the family.

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.

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.

Alternative care

There are decrees in some communities which prohibit corporal punishment in institutions for children and foster-care. In 2004 the Flemish government ratified the Decree to the minor’s statute regarding integral help to youth, which includes the prohibition of inhuman and degrading treatment and punishment (article 27) and of corporal punishment and mental violence (article 28). There is no explicit prohibition of corporal punishment in non-institutional childcare settings.

Workplace

No information.

Prevalence research

A government commissioned study in 1988 into women’s experiences of violence found that of the 58% who had experienced violence in their lives, 65% of it was at the hands of their parents. Over a third of the total sample (35% ) had experienced violence before the age of 16 years. Typically, the violence was experienced at a young age (41% in infancy, 21% between the ages of 6 and 12 years). (Bruynooghe, R. et al., 1988, Ervaringen van vrouwen met fysiek en seksueel geweld: prevalentie en gevolgen, Diepenbeek: Centre Universitaire Limbourgeois)

Telephone interviews with 1,070 adults aged 15 years and over in April 2004, revealed that 77% 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. Just under a fifth (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 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 (a, b and c))

“…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)

European Committee of Social Rights

“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)

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)