Lawfulness of corporal punishment

Home

Corporal punishment is lawful in the home. The common law right to use “reasonable and moderate chastisement” in disciplining children was confirmed in section 37 of the Children Act (1908). The Children Act (2001) repealed section 37, but removal of the common law defence will require an explicit provision in addition to the repeal of section 37.

Following a complaint against Ireland 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 Ireland was in violation of Article 17 of the Revised Charter because corporal punishment of children within the home is permitted by the common law defence of reasonable chastisement, which is also applicable in foster care, residential care and certain childminding settings (Resolution ResChS(2005)9, Collective complaint No. 18/2003 by the World Organisation against Torture (OMCT) against Ireland, adopted by the Council of Ministers on 8 June 2005).

The government has stated a long term commitment to prohibition but has given no indication of timing.

Schools

Corporal punishment in schools was abolished in 1982 by Department Circulars 9/82 and 5/82. Teachers' immunity from criminal prosecution was removed in section 24 of the Offences Against the Person (Non Fatal) Act (1997), which states: "The rule of law under which teachers are immune from criminal liability in respect of physical chastisement of pupils is hereby abolished."

Penal system

Corporal punishment is unlawful as a sentence for crime and as a disciplinary measure in penal institutions (industrial and reformatory schools). It is prohibited under section 12 of the Criminal Law Act (1997). Section 201 of the Children Act prohibits the use in detention schools of “corporal punishment or any other form of physical violence” and “treatment that is cruel, inhuman or degrading”.

Alternative care

Corporal punishment is explicitly prohibited in pre-school establishments under Regulation 8 of the Child Care (Pre-School Services) Regulations (1996), which states: “A person carrying on a preschool shall ensure that no corporal punishment is inflicted on a pre-school child attending the service.” But under section 58 of the Child Care Act (1991), childminders caring for children of relatives, children of the same family or not more than three children of different families are exempt from these regulations. Corporal punishment is prohibited in foster care under section 10 (Safeguarding and Child Protection) of the National Standards for Foster Care, although this is guidance not regulation, which states: “(2) Link workers advise foster carers on the appropriate use of sanctions and ensure that they understand that corporal punishment in any form, for example, slapping, smacking, shaking or any form of humiliating treatment is unacceptable and prohibited.” In residential care services, Health Boards recommend its avoidance in favour of “reasonable and humane sanctions”. The National Standards for Children’s Residential Centres state (section 6.20): “Young people are not subject to any form of treatment that is humiliating or degrading.” The Child Care (Special Care) Regulations (2004) regulate Special Care Units which provide secure residential care for a small number of non-offending children in need of special care or protection, and prohibit “corporal punishment or any form of physical violence”.

Workplace

No information.

Prevalence research

In attitudinal research carried out in 1999, 45% of the 1,400 respondents, aged over 15 years, agreed with the statement “I see nothing wrong with slapping a child who misbehaves”; 27% supported legal prohibition. (Irish Marketing Surveys, 1999, survey carried out for the Irish Society for the Prevention of Cruelty to Children)

In a survey for the National Society for the Prevention of Cruelty to Children in Northern Ireland and the Irish Society for the Prevention of Cruelty to Children of 1,100 children aged 8-15 years, almost a tenth reported that teachers threatened to slap them, and 4% said that they actually did, even though corporal punishment is banned. One fifth said their parents smacked them, though relationships with parents were positive. (McGill, P., 1996, “Pupils in Ireland fear test failure”, Times Educational Supplement, 23 August 1996)

In 1993, research was carried out by the Irish Society for the Prevention of Cruelty to Children into children’s attitudes to and experiences of physical punishment and sexual abuse. In personal interviews with more than 1,000 adults aged 18 to 54 years in their homes, 64% stated that they had been physically punished in the home occasionally/rarely, 24% constantly/frequently. Almost one third (30%) reported being punished with a rigid implement occasionally/rarely, 7% constantly/frequently; 18% had been punished with a flexible instrument occasionally/rarely, 5% constantly/frequently. One in ten reported being hit with a closed fist (8% occasionally/rarely, 2% constantly/frequently). Three quarters of the respondents either endorsed (32%) or accepted (43%) the use of physical punishment. (Irish Marketing Surveys, 1993, Childhood Experiences and Attitudes, research carried out for the Irish Society for the Prevention of Cruelty to Children and RTE’s “Tuesday File” series)

Recommendations by human rights treaty bodies

Committee on the Rights of the Child

“While noting that the prohibition of corporal punishment within the family is under review and that parental educational programmes have been developed, the Committee is deeply concerned that corporal punishment within the family is still not prohibited by law.

“The Committee reiterates its previous recommendation (CRC/C/15/Add.85 para. 39) and urges the State party to:

1. explicitly prohibit all forms of corporal punishment in the family;
2. sensitize and educate parents and the general public about the unacceptability of corporal punishment;
3. promote positive, non-violent forms of discipline as an alternative to corporal punishment; and
4. take into account the Committee’s general comment No. 8 (2006) on the right of the child to protection from corporal punishment and other cruel or degrading forms of punishment.”
   

(29 September 2006, CRC/C/IRL/CO/2, Concluding observations on second report, paras 39 and 40 (a, b, c and d))

“The Committee is concerned about the lack of prohibition in legislation of corporal punishment within the family. In the view of the Committee, this contravenes the principles and provisions of the Convention. The Committee is also concerned about the existence of child abuse and violence within the family and the lack of mandatory reporting mechanisms for cases of child abuse.

“The Committee suggests that the State party take all appropriate measures, including of a legislative nature, to prohibit and eliminate the use of corporal punishment within the family. The Committee also suggests that awareness-raising campaigns be conducted to ensure that alternative forms of discipline are administered in a manner consistent with the child’s human dignity and in conformity with the Convention….”
(4 February 1998, CRC/C/15/Add.85, Concluding observations on initial report, paras. 16 and 39)

Committee on Economic, Social and Cultural Rights

“The Committee also commends the State party for the legislative measures taken to combat domestic violence and to eradicate corporal punishment in schools.”
(5 June 2002, E/C.12/1/Add.77, Concluding observations on second report, para. 7)

Human Rights Committee

“The Committee welcomes the Child Trafficking and Pornography Act 1998 and the Sexual Offenders (Jurisdiction) Act 1996, which allows prosecution in respect of offences committed outside Ireland. It also notes with satisfaction the abolition of corporal punishment in public and private schools.”
(24 July 2000, A/55/40, paras. 422-451, Concluding observations on second report, para. 8)

European Committee of Social Rights

“The corporal punishment of children in schools is prohibited. The Committee wishes to know whether corporal punishment is prohibited in institutions caring for children.

“There is a common law immunity, which permits parents and other persons in loco parentis to use reasonable and moderate chastisement in the correction of their children. The Committee refers to its general observations on Article 17 in the General introduction on this issue. It decides to defer its conclusion on this point pending information as to whether the Government intends to remove this immunity and prohibit all corporal punishment of children….

“The Committee defers its conclusion pending information requested on corporal punishment….”
(10 January 2001, Second Addendum to Conclusions XV-2, pages 33-37)