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Legislative measures to prohibit corporal punishment

This area of the website is designed to accompany the Global Initiative handbook Prohibiting corporal punishment of children: A guide to legal reform and other measures (December 2007), available here [LINK] as a pdf. These resources are also available as a separate pdf file here. We welcome further information about other legal and other resources to support prohibition: please email info@endcorporalpunishment.org.

Prohibition in alternative care settings

Australia

The complexity of ensuring that all corporal punishment of a child is prohibited is illustrated by legislation in New South Wales, Australia. Corporal punishment of children by staff in child care centres is prohibited under the Crime Act 1900 section 61AA (as amended 2002), and under the Centre Based and Mobile Child Care Regulation (No. 2) 1996 Code of Conduct Schedule 2 c9(2)(a) staff must not use physical, verbal or emotional punishment, including punishment that humiliates, frightens or threatens the child. However, a parent would be permitted to smack his/her child at a child care centre, as would a step-parent, de facto partner or relative of the parent if the parent has authorised physical punishment. In residential centres, corporal punishment by staff is also prohibited under the Crimes Act 1900 s61AA and Regulation but again a parent would be permitted to use physical punishment on his/her own child at a residential centre, as could a step-parent, de facto partner or relative of the parent if the parent has authorised physical punishment. A mandatory Code of Conduct states that children in residential care must not be subjected to or threatened with any form of corporal punishment, or any punishment that is intended to humiliate or frighten the child under the Children (Care and Protection) Regulation 1996 r37(c) and Schedule 2 c7(b)(i)&(iii). Foster parents are required by the same Regulation (r26(a)) to provide for the physical, social and emotional well-being of a ward or protected person in their care. A Code of Conduct states that a foster parent must ensure that a foster child in his or her care is not subjected to or threatened with any form of corporal punishment, or any punishment that is intended to humiliate or frighten the child (Children (Care and Protection) Regulation 1996 r55, r73 and Schedule 1 c8(b)(i)&(iii)). Under section 181(c) of the Children and Young Persons (Care and Protection) Act 1998, a Children’s Guardian has a statutory responsibility to ensure that the rights of all children and young persons in out-of-home care are safeguarded and promoted. Since December 2002, a babysitter has no right to use physical punishment unless he/she is a relative by blood or marriage of a parent of the child and is authorised by the parent to do so (Crimes Act 1900 s61AA(6)(a)).

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Costa Rica

The Draft Law on the Abolition of Corporal Punishment Against Minors under discussion (2007) clearly cover all alternative care settings, as the following extract illustrates. The issue of the duty of parents (and those in loco parentis) to discipline their children is dealt with by explicitly stating that this duty excludes the use of physical punishment.

ARTICLE 1 – Add a new Article 25B to the Childhood and Adolescence Code, Law N° 7739, 6 February 1998, the text of which shall say:
Article 25B – Prohibition of Corporal Punishment.
It is prohibited for the father, mother, legal representative or persons in charge of the custody, care, attention, treatment, education and vigilance of minors, to use corporal punishment as a corrective or disciplinary measure on children or adolescents.
The National Infancy Trust (Patronato Nacional de la Infancia), in coordination with other State institutions, will promote and carry out awareness-raising and education programmes aimed at parents and others responsible for the care of minors, on discipline and setting limits for their sons and daughters that do not involve corporal punishment.
ARTICLE 2 – Modify Article 143 of the Family Code, Law N° 5476 of 5 February 1974 and its modifications, so that it is now read in the following way:
Article 143 – Parental authority confers rights and imposes the duty to educate, care, watch over and discipline children, excluding physical punishment or any other form of mistreatment or degrading treatment. It empowers to ask the Court to authorize the adoption of necessary measures to contribute to the orientation of the minor, which could include their internment in a suitable establishment for a prudential period of time.

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Iceland

Where corporal punishment has been prohibited in alternative care settings but not yet in the family home, it has in most cases been necessary to ensure that all laws and regulations relating to the many form of alternative care contain the prohibition of corporal punishment. For example, corporal punishment was prohibited in alternative care settings in Iceland prior to its prohibition in the home (in 2002) in a number of laws. Regulations on day care in private homes No. 198 (1992) prohibit the use of mental or physical punishment on children. Regulations on services for disabled children and the families of the disabled No. 155 (1995) prohibit physical punishment. Rules on the rights of children and coercive measures taken in state treatment homes issued in 1999 explicitly prohibit corporal punishment, stating that:

application of physical punishment and solitary confinement, administration of drugs without medical consultation, and any application of restraints, such as ropes, adhesive tape, belts or other similar means of physical restraint, are prohibited, whether as a means of punishment or for the purpose of treatment or upbringing.

Other homes or institutions are governed by Rules No. 401/1998 which state that:

children may never be subjected to physical or psychological punishment in such homes.

Article 82 of the Child Protection Act prohibits in homes and institutions:

any physical or mental punishment upon the child [and] confinement, isolation and other comparable coercive measures or disciplinary penalties unless necessary.

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Jamaica

Corporal punishment of children up to the age of 6 years in early childhood institutions (known as basic schools) is prohibited under the Act to Provide for the Regulation and Management of Early Childhood Institutions and for other Connected Matters (2005). It is prohibited in other institutions and forms of childcare in Part III (“Children in Care”) of the Child Care and Protection Act, section 62 of which states:

A child in a place of safety, children’s home or in the care of a fit person shall have the following rights: ...
(d) to be free from corporal punishment;
(e) to be informed of the standard of behaviour expected by the caregivers and of the consequences of not meeting that standard; ...
(l) to be informed of the child’s rights under this Act and the procedures available for enforcing those rights.

Section 88 states:

(1) A person commits an offence against this Act if that person – ...
(d) contravenes any of the provisions of Part III ....

Permitted disciplinary measure in children’s homes are prescribed by the Child Care and Protection (Children’s Homes) Regulations (No. 22 of 2005) and do not include corporal punishment.

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Romania

The law in Romania exemplifies how an all encompassing prohibition of corporal punishment of children would be applicable in any setting, including in alternative care contexts. As article 28 of the Law on Protection and Promotion of the Rights of the Child (2004, in force 2005) states:

  1. The child has the right to be shown respect for his or her personality and individuality and may not be made subject to physical punishment or to other humiliating or degrading treatment.
  2. Disciplinary measures concerning the child can only be taken in accordance with the child’s dignity, and, under no circumstances are physical punishments allowed, or punishments which relate to the child’s physical and mental development or which may affect the child’s emotional status.

Article 90 explicitly includes care institutions in the prohibition:

It is forbidden to enforce physical punishment of any kind or to deprive the child of his or her rights, which may result in 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.

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United Kingdom

In Wales, section 10 of the Child Minding and Day Care (Wales) Regulations (2002) provides for “Behaviour management, discipline and restraint”, including the prohibition of corporal punishment:

  1. No measure of control, restraint or discipline which is excessive, unreasonable or contrary to paragraph (5) shall be used at any time on relevant children.
  2. The registered person shall, in accordance with this regulation, draw up and implement a written behaviour management policy setting out –
    1. the measures of control, restraint and discipline which may be used on the relevant premises; and
    2. the means whereby appropriate behaviour is to be promoted on those premises.
  3. Subject to paragraphs (6) and (7) of this regulation, only such measures of control, restraint and discipline as are provided for in the said behaviour management policy shall be used on relevant children.
  4. The registered person shall keep under review and where appropriate revise the behaviour management policy and notify the appropriate office of the National Assembly of any such revision within 28 days.
  5. Subject to paragraph (6), neither the following measures nor a threat to use one or more of them shall be used on relevant children –
    1. any form of corporal punishment;
    2. (subject to the provision of any court order relating to contact between the child and any person) any restriction on a child’s contact or communication with his or her parents;
    3. any punishment relating to the consumption or deprivation of food or drink;
    4. any requirement that a child wear distinctive or inappropriate clothes;
    5. the use or withholding of medication or medical or dental treatment as a disciplinary measure;
    6. the intentional deprivation of sleep;
    7. any intimate physical examination of a child;
    8. the withholding of any aids or equipment needed by a disabled child;
    9. any measure which involves –
      1. any child in the imposition of any measure against any other child; or
      2. the punishment of a group of children for the behaviour of an individual child.
  6. Nothing in this regulation shall prohibit –
    1. the taking of any action by, or in accordance with the instructions of, a registered medical or dental practitioner which is necessary to protect the health of a child;
    2. the taking of any action immediately necessary to prevent injury to any person or serious damage to property.

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Uruguay:

The legislation introduced in 2007 provides another examples of a wide-ranging prohibition which is applicable to all settings in which children find themselves, including all alternative care settings. The provisions in the Civil Code and the Children and Adolescents Code (2004) which had recognised the right of parents and others to administer “moderate/adequate correction” were repealed and a new article inserted into the Children and Adolescents Code which states:

Article 12bis. Prohibition of physical punishment. It is prohibited for parents, guardians, and all other persons responsible for the care, treatment, education or supervision of children and adolescents, to use physical or any other kind of humiliating punishment as a form of correcting or disciplining children or adolescents.

Uruguay’s Institute for Children and Adolescents, other State institutions and civil society are jointly responsible for:

a) carrying out awareness raising and educational programmes for parents and all others responsible for the care, treatment, education or supervision of children and adolescents;

b) promoting positive, participatory and non-violent forms of discipline as alternatives to physical punishment and other forms of humiliating treatment.

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