Summary of law reform necessary to achieve full prohibition

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

There appears to be no legal defence in legislation for the use of corporal punishment by parents, but it is not explicitly prohibited and legal provisions against violence and abuse are not interpreted as prohibiting all corporal punishment. The near universal acceptance of corporal punishment in childrearing necessitates clarity in law that all such punishment is unacceptable and unlawful. Explicit prohibition should be enacted of all forms of corporal punishment, however light.

Banning corporal punishment in schools by way of policy falls short of realising children’s right to equal protection from assault in law. Explicit prohibition should be enacted in relation to all educational settings, including public and private, full and part time, and including religious institutions. Explicit prohibition should also be enacted in relation to all institutions accommodating children in conflict with the law and in 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 new Civil Code of the Netherlands Antilles replaced the term “parental authority” with “parental responsibility”, but does not prohibit corporal punishment. Article 338 states: “Parental responsibility encompasses the duty and the right of the parent to care for and raise his or her child. The terms ‘care for’ and ‘raise’ include care and responsibility for the psychological and physical well-being of the child and efforts to further the development of his or her personality.”

Children have limited protection from violence and abuse under the Civil Code and the Criminal Code. As at 2008, the Criminal Code is being revised.

Schools

Corporal punishment is banned in schools as a matter of policy, but there is no explicit prohibition in law. As at 2008, a draft National Ordinance amending the National Ordinance on Compulsory Education (1991) had been submitted to Parliament for approval, but we have no details of its provisions, if any, in relation to corporal punishment. Other applicable laws include the draft National Ordinance on Foundation Based Education, the National Ordinance on Secondary Vocational Education and Training, the National Ordinance on Compulsory Education and the National Ordinance on the Promotion of Employment for Young Jobseekers, and regulations on compulsory education and training for teenagers and young adults, but we have no details of provisions.

Penal system

Corporal punishment is prohibited as a sentence for crime. It is considered unlawful as a disciplinary measure in penal institutions, but we have been unable to identify an explicit prohibition in legislation. As at 2008, a draft juvenile justice bill was under consideration, and the new Criminal Code was expected to make provisions for children in conflict with the law.

Alternative care

There is no explicit prohibition of corporal punishment in alternative care settings.

Prevalence research

None identified.

Recommendations by human rights treaty bodies

Committee on the Rights of the Child

“The Committee is concerned that corporal punishment in the home is not prohibited in Aruba, and that it is still being used at schools, day-care centres and at home in the Netherlands Antilles.

“The Committee recommends that the State party prohibit corporal punishment by law and enforce the prohibition in all settings, including in the family, the schools and out of home placements. It also recommends that the State party conduct awareness-raising campaigns and parenting education programmes to ensure that alternative forms of discipline are used, in a manner consistent with the child’s human dignity and in conformity with the Convention, especially article 28, paragraph 2, while taking due account of the General Comment No. 8 (2006) on the right of the child to protection from corporal punishment and other cruel or degrading forms of punishment (CRC/C/GC/8).”
(30 January 2009, CRC/C/NLD/CO/3 Unedited Version, Concluding observations on the third report of the Netherlands, paras. 36 and 37)

“… The Committee is concerned, however, that there is insufficient information and awareness of the ill-treatment and abuse of children and that whilst corporal punishment has been formally banned and made a punishable offence in schools as a matter of policy, this form of punishment continues to be practised in schools, as well as in the home and in other public institutions such as prisons and in alternative care contexts.

“The Committee recommends that the Netherlands Antilles:
a) take all legislative measure to prohibit all forms of physical and mental violence, including corporal punishment against children (boys as well as girls) in the home, schools and in all other contexts;
b) conduct a study to assess the nature and extent of ill-treatment and abuse of children, and design policies and programmes to address it;
c) carry out public education campaigns about the negative consequences of ill-treatment of children, and promote positive, non-violent forms of discipline as an alternative to corporal punishment….
g) take into consideration the recommendations of the Committee adopted on its days of general discussion on children and violence in September 2000 (CRC/C/100, para.688) and September 2001 (CRC/C/111, paras.701-745)….”
(7 June 2002, CRC/C/15/Add.186, Concluding observations on initial report, paras.36 and 37)