 |
||
 |
|
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 the home, including removal of legal defences ("reasonable punishment", etc)
Canada
Draft legislation under discussion, introduced to Parliament in October 2007, repeals section 43 of the Criminal Code, which provides for the use of “reasonable” force “by way of correction”. The draft Act to amend the Criminal Code (protection of children) (Bill S-209) states:
- Section 43 of the Criminal Code is repealed.
- This Act comes into force one year after the day on which it receives royal assent or on any earlier day that may be fixed by order of the Governor in Council
Denmark
The Custody and Care Act was amended in 1985 to state:
Parental custody implies the obligation to protect the child against physical and psychological violence and against other harmful treatment.
However, further explicit prohibition was found to be necessary and in 1997, the Parental Custody and Care Act (1995) was amended to state:
The child has the right to care and security. He or she shall be treated with respect as an individual and may not be subjected to corporal punishment or any other degrading treatment.
Finland
The Criminal Code was amended in 1969 to remove parents’ defence against prosecution for petty assault if committed during the exercise of their lawful “right” to chastise their child. In 1984 the Child Custody and Rights of Access Act (1983) came into force, prohibiting corporal punishment (article 1.3):
A child shall be brought up in the spirit of understanding, security and love. He shall not be subdued, corporally punished or otherwise humiliated. His growth towards independence, responsibility and adulthood shall be encouraged, supported and assisted.
Together with the law against physical punishment, the child’s rights to self-determination and to be heard were extended.
Netherlands
Corporal punishment is explicitly prohibited in the home in article 1:247 of the Civil Code, on parental authority, which was amended in 2007 to state (unofficial translation):
- Parental authority includes the duty and the right of the parent to care for and raise his or her minor child.
- Caring for and raising one’s child includes the care and the responsibility for the emotional and physical wellbeing of the child and for his or her safety as well as for the promotion of the development of his or her personality. In the care and upbringing of the child the parents will not use emotional or physical violence or any other humiliating treatment.
Article 1:248 applies article 1:247 to other persons acting in loco parentis.
New Zealand
The legal defence for the use of reasonable force “by way of correction” was removed from the 1961 Crimes Act in 2007 by the Crimes (Substituted Section 59) Amendment Act, which substitutes a new provision on parental authority. The new law allows the use of force for protection but explicitly prohibits its use for the purposes of correction. It also reaffirms standard police discretion, as for assault cases between adults, as to the decision to prosecute in light of the likely public interest in doing so. The new Section 59 states:
- Every parent of a child and every person in the place of a parent of the child is justified in using force if the force used is reasonable in the circumstances and is for the purpose of---
- preventing or minimising harm to the child or another person; or
- preventing the child from engaging or continuing to engage in conduct that amounts to a criminal offence; or
- preventing the child from engaging or continuing to engage in offensive or disruptive behaviour; or
- performing the normal daily tasks that are incidental to good care and parenting.
- Nothing in subsection (1) or in any rule of common law justifies the use of force for the purpose of correction.
- Subsection (2) prevails over subsection (1).
- To avoid doubt, it is affirmed that the Police have the discretion not to prosecute complaints against a parent of a child or person in the place of a parent of a child in relation to an offence involving the use of force against a child, where the offence is considered to be so inconsequential that there is no public interest in proceeding with a prosecution.
Police guidelines on how to enforce the prohibition were also published (available at www.police.govt.nz/news/release/3149.html), confirming that parents who regularly smack their children despite warnings face prosecution; parents found to have used “minor, trivial or inconsequential” force and not charged will have their details recorded by police family violence co-ordinators. A provision in section 139A of the 1989 Education Act which recognised parents’ right to use force by way of correction was repealed.
Romania
Corporal punishment is explicitly prohibited in article 28 of the Law on Protection and Promotion of the Rights of the Child, (2004, in force 2005):
- 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.
- 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 states of the same law states:
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.
Sweden
The legal defence for the use of corporal punishment by parents was removed from criminal law in 1957. In 1966, a provision allowing “reprimands” was removed from the Parenthood and Guardianship Code. The Code was amended in 1979 to explicitly prohibit corporal punishment (article 6.1):
Children are entitled to care, security and a good upbringing. Children are to be treated with respect for their person and individuality and may not be subjected to corporal punishment or any other humiliating treatment.
Ukraine
The law concerning the responsibilities of parents towards their children – the Family Code (2003, in force 2004) – prohibits corporal punishment and any other humiliating punishment or treatment (article 150). Article 150(7) states:
Physical punishment of the child by the parents, as well as other inhuman or degrading treatment or punishment are prohibited.
The Prevention of Domestic Violence Act (2001, in force 2002) also outlaws violence against children in the home. It defines domestic violence as:
any intentional action of one family against another family member if such action infringes Constitutional and civil rights and freedoms of a family member and injures his physical, mental and moral health, and as well as child’s development [sic]
The same law defines physical domestic violence as:
an intentional beating, body injuring of one family member by another as well as intentional limitation of freedom, place of residence, food, clothing and other normal life conditions, which may result in victim’s death or may cause disturbance of his physical and mental health or may harm his honour and dignity.
United Kingdom
The following extract from a clause debated (but not accepted) in the UK Parliament illustrates how the law must make absolutely clear that the laws on assault and battery which apply to adults should apply equally to children. It also provides an example of provisions which may be necessary for establishing when reasonable use of force may be necessary.
- Battery of a child cannot be justified in any proceedings on the grounds that it constituted reasonable punishment.
- Battery of a child is not unlawful if the act amounts to the use of reasonable force in order to –
- avert an immediate danger to the child or any other person;
- avert an immediate danger to property; or
- prevent the commission of a crime, or an act which would be a crime if the child had reached the age of criminal responsibility.
- For the purpose of subsections (1) and (2) “child” means a person under the age of 18…
Further details about countries with full prohibition, including in the home, are available here.
Uruguay
Corporal punishment is prohibited by repeal of 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”, and by a clear statement that corporal punishment is prohibited. The law, enacted in 2007, inserts the following article into the Children and Adolescents Code:
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.
It also inserts the following provision into article 16 of the Code:
f) Correct your children or protégés without the use of physical punishment or any other kind of humiliating treatment.
Venezuela:
In 2007, article 32-A (“the right to good treatment”) was inserted into the Law for the Protection of Children and Adolescents which explicitly prohibits all corporal punishment and puts obligations on parents, other adults and the State to ensure implementation of the new law. Article 32-A states:
All children and young people have a right to be treated well. This right includes a non-violent education and upbringing, based on love, affection, mutual understanding and respect, and solidarity.
Parents, representatives, guardians, relatives, and teachers should use non-violent methods of education and discipline to raise and educate their children. Consequently, all forms of physical and humiliating punishment are prohibited. The State, with the active participation of society, must ensure policies, programmes and protection measures are in place to abolish all forms of physical and humiliating punishment of children and young people.
Corporal punishment is defined as the use of force, in raising or educating children, with the intention of causing any degree of physical pain or discomfort to correct, control or change the behaviour of children and young people, provided that the act is not punishable.
Humiliating punishment can be understood as any form of offensive, denigrating, devaluing, stigmatising or mocking, treatment, carried out to raise or educate children and young people, with the aim of disciplining, controlling or changing their behaviour, provided that the act is not punishable.
Article 358 of the Law for the Protection of Children and Adolescents is amended to re-emphasise that the duties and rights of parents in childrearing exclude the use of corporal punishment:
The responsibility for raising children includes the shared duty and right, which is equal and non-derogable, of the father and mother to love, raise, train, educate, and look after their children, sustain and assist them financially, morally and emotionally, using appropriate corrective measures that do not violate their dignity, rights, guarantees or overall development. Consequently, all forms of physical punishment, psychological violence and humiliating treatment, which harm children and young people, are prohibited.
Click here for further details about countries with full prohibition, including in the home.