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 firstname.lastname@example.org.
Prohibition in schools
Corporal punishment is prohibited in legislation pertaining to child rights generally. Articles 40 and 41 of the Childhood and Adolescence Code (2003) address disciplinary methods and prohibited punishments in educational institutions:
40. Disciplinary measures.
Teaching methods and discipline in educational institutions shall respect the rights and guarantees of children and young persons and shall exclude all forms of abuse, ill-treatment and disrespect, and, accordingly, any form of cruel, inhuman or degrading punishment.
41. Prohibited punishments.
Educational institutions are:
(1) Prohibited from using corporal punishment;
(2) Prohibited from using psychological punishments that offend the dignity of children and young persons.
Prohibition of school corporal punishment in Haiti is part of a more far reaching prohibition of corporal punishment which extends to most settings (though we have been unable to establish this includes the home). The Law prohibiting corporal punishment of children (2001) is reproduced here in its entirety (unofficial translation). It is notable for its definition of corporal punishment, which includes hitting or pushing, for mandating the establishment in a school (or other institution or organisation) of a discipline committee to oversee the implementation of a code of conduct, for providing for a variety of levels of redress when the prohibition is violated, including ministerial level.
- The inhuman treatment of any nature comprising corporal punishment of a child is forbidden.
- Inhuman treatment is defined by any action that causes a bodily or emotional shock to a child, such as hitting or pushing, or inflicting any punishment that causes damage to the child, using or without the intermediary of an object, weapon or abusive physical force.
- Any person, organisation, school or children’s home to whom this law confides the responsibility of the child as well as any other person entrusted to make decisions on the child’s behalf by virtue of this law must, during their intervention, treat the child in a way that benefits his security and development.
- Any disciplinary measure taken by an organisation, school or children’s home must be in the interest of the child in accordance with internal regulations that are visibly displayed in the establishment.
- The organisation, school or children’s home must establish a code of conduct in which sanctions for indiscipline or violation of the rules are listed.
- A discipline committee must be appointed to ensure the enforcement of a code of conduct that respects the child’s dignity as a human being in accordance with this law. Social agents of the appropriate state institution will supervise the enforcement of the code.
- The organisation, school or children’s home must ensure that the rules of the code of conduct are explained to the child and his parents, if he has any. A copy of the internal rules must be given to the child, if he has the competence to understand them, and to his parents, if he has any.
- The Ministry of National Education is the higher authority and has the final say in case of a dispute between parents, pupils and the school, recorded by letter or verbally to the Ministry, on the interpretation of the code of conduct.
- The Minister of Social Affairs has the authority in a complaint that a child has not been punished in accordance with this law in an organisation or children’s home. Any complaint must be recorded on a register at the Ministry.
- In case of a serious fault committed by the director, teachers or any member of the school staff the Ministry of National Education will demand the removal of the person at fault from the school and can even, according to the seriousness of the case, close down the establishment.
- In the case of an organisation or children’s home the decision to remove the person at fault or, according to the seriousness of the case, close down the organisation or children’s home rests with the Ministry of Social Affairs.
- Each school, organisation or children’s home must set up a control committee, led by the director or his delegate, responsible for checking any sanction that affect the well-being or physical safety of the child.
- This control committee will report any deficiencies to the discipline committee at the Ministry of Education or at the Ministry of Social Affairs. The Ministries can request a civil tribunal from the government.
- Any person, director, teacher or employee of a school, organisation or children’s home who is found to have participated in or assisted an act that put the safety of a child in danger will be removed from their post and will be prosecuted according to the penal code.
- The present law overrides any law or clause of a law, any decree or clause of a decree, any Order in Council or clause of Order in Council that is contrary to it and will be published and executed by the Ministries of Economy and Finance, of National Education, of Youth and Sport and of Social Affairs.
Prohibition of corporal punishment is in the form of a prohibition of torture, cruel behaviour and humiliation together with a list of permitted disciplinary measures in education settings which excludes corporal punishment. Thus article 49 of the Law on the Fundamentals of Protection of the Rights of the Child (1996, amended 2002) states:
- Parents and other legal representatives of the child may appropriately, according to their judgment, discipline the child, for avoiding to carry out his duties and for disciplinary infractions, with the exception of physical and mental torture, other cruel behaviour and the humiliation of the child’s honour and dignity.
- Disciplinary and educative enforcement measures: criticism, reprimand, severe reprimand, appropriate evaluation of behaviour and other enforcement means, established by laws, may be applied to a child for violations of internal order regulations of teaching and educative (care) institutions.
The Family Code (1987) states that the parental authority granted teachers and carers does not extend to a right to use corporal punishment. Article 233 states:
The person exercising substitute parental authority shall have the same authority over the person of the child as the parents. In no case shall the school administrator, teacher or individual engaged in child care exercising special parental authority inflict corporal punishment upon the child.
The prohibition of corporal punishment in schools that had been in force for a number of years was reasserted when legislation concerning the whole spectrum of children’s rights was enacted. Corporal punishment in schools had been prohibited since 1948, and confirmed in the Education Law (article 157) and the Internal Regulations governing schools and care institutions (articles 5 and 9). In 2004, Law No. 272/2004 on the Protection and Promotion of the Rights of the Child was enacted, which prohibited corporal punishment in all settings and again confirmed that this applied to schools. Article 28 states:
- 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 treatments.
- 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 48 clarifies that this prohibition of physical punishment applies to the educational process:
(2) During the teaching and educational process, the child has the right to be treated with respect by the teachers, to be informed on his or her rights, as well as on the methods of exercising these rights. Physical punishments during the educational process are forbidden….
Article 90 emphasises the prohibition of physical punishment in all institutions, including educational settings:
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 institutions which ensures the protection, care and education of children.
The prohibition of corporal punishment in schools is in primary legislation, and further details concerning school codes of conduct are given in guidance. The prohibition is found in article 10 of the South African Schools Act (1996, in force 1997), and leaves no doubt that the use of corporal punishment will be treated in law as assault:
- No person may administer corporal punishment at a school to a learner;
- Any person who contravenes subsection (1) is guilty of an offence and liable on conviction to a sentence which could be imposed for assault.
The South African National Education Policy Act (1996) also contains the prohibition, stating in article 3 that “[n]o person shall administer corporal punishment, or subject a student to psychological or physical abuse at any educational institution”. Direction as to how schools should reflect the prohibition of corporal punishment in their codes of conduct in South Africa is produced in the form of guidance rather than in primary legislation. In 1998, Notice 776 pursuant to the Schools Act was published in the Government Gazette by the Department of Education, "Guidelines for the consideration of governing bodies in adopting a code of conduct for learners", directing those responsible for its drafting that "[t]he main focus of the Code of Conduct must be positive discipline; it must not be punitive and punishment oriented but facilitate constructive learning" (para 1.4). The full Guidelines are available at www.education.gov.za. The sections on discipline and punishment are reproduced below:
7.1 Discipline must be maintained in the school and the classroom to ensure that the education of learners proceeds without disruptive behaviour and offences. Its goal is to teach and lead learners to self discipline.
7.2 The disciplinary process must be expeditious, fair, just, corrective, consistent and educative. Where possible the parent should be informed and involved in the correction of the learner’s behaviour. Learners should be protected from abuse by adults or other learners.
7.3 Restraint is the act of controlling the actions of learners when such actions may inflict harm to others or to the learner, or violate the rights of other learners or educators. Educators may use reasonable measures where necessary to prevent a learner from harming him/herself or others.
7.4 The South African Schools Act, 1996, empowers school authorities to discipline learners, but it is beyond the law to delegate this authority to fellow learners. Learners are partners with other members of the school and are not in charge of the school.
7.5 Every educator is responsible for discipline at all times at the school and at school related activities. Educators have full authority and responsibility to correct the behaviour of learners whenever such correction is necessary at the school. Serious misconduct must be referred to the principal of the school. However, a mechanism must be created at schools to handle disciplinary problems to reduce the load of the principal.
7.6 Any corrective measures or disciplinary action must be commensurate with the offence/infraction. Corrective measures may become more severe with subsequent repeated infractions. Suspension or expulsion may follow. Learners should not think that they cannot be suspended or expelled simply because it is their first offence or infraction of a rule or policy, but such decision should be taken by the right authority.
7.7 In cases where a learner cannot adjust to the school and where his/her behaviour is objectionable in that it violates the rights of others, he/she will be referred to the principal. Through consultation with his/her educators, and the site of learning based team in consultation with the parents or guardians every effort should be made to assist him/her to adjust. This will include referral to the education support services for treatment. If all these efforts fail, the principal will refer the matter to the governing body, which may make a decision in the best interest of the learner and the other learners at the school.
8.1 Punishment is a corrective measure or a penalty inflicted on an offender who has to suffer the consequences of misconduct in order to maintain the orderly society of the school.
8.2 Corporal punishment shall not be administered.
Prohibition of corporal punishment was introduced when new education legislation generally was being enacted. The Education Act (2002) prohibits corporal punishment in the context of protecting students from harassment and injury by other students and by staff. It prescribes what should be included in a school’s code of behaviour, not only in terms of what should be prohibited but also specifying what should be promoted (e.g. “non-violent and non-discriminatory language and practices”). It ensures that corporal punishment may not be inflicted by any staff, and staff may not order other students to inflict corporal punishment. It also provides for the course of action that should be taken when the prohibition of corporal punishment is violated. The full text of article 40 states:
- The Ministry, non-government Managing Authorities and their personnel shall take reasonable steps to prevent: a) students injuring themselves; b) students harassing or injuring other students; c) students harassing or injuring others; d) staff harassing or injuring others; or e) members of public harassing staff or students on school property.
- The principal teacher and staff in each school shall establish an agreed and written code of behaviour and of dress for the school staff and for the student. This code of behaviour shall: a) reflect the values of the local community as well as those of the wider national society; b) reinforce that all school students and staff will be safe and are valued; c) define, model and reinforce non-violent and non-discriminatory language and practices; and d) stipulate that suspension, exclusion and expulsion procedures are considered only when all other approaches have been exhausted.
- Teachers shall endeavour to secure the good behaviour of students without recourse to physical, emotional, degrading and injurious punishments;
- Under no circumstances shall a teacher inflict corporal punishment on any student;
- Under no circumstances shall staff in any school direct a student to administer corporal punishment on another student;
- Breaches by staff or students of the school behaviour code established under subregulation (2) shall be reported to the principal teacher. The principal teacher shall consider the circumstances and decide on the management strategy most appropriate for the situation.
- Breaches of the principal teacher of the school behaviour code established under subregulation (2) shall be reported to the Director of the non-government Managing Authority who shall consider the circumstances and decide on the management strategy most appropriate for the situation.
- Punishment shall not be inflicted on students for failure or inability to learn or for trivial breaches of school discipline;
- A principal teacher who inflicts corporal punishment on any student or causes any student to inflict corporal punishment on another student shall be reported for action to the Director of their non-government Managing Authority. Details of the incident shall be entered in the school’s staff discipline register.
The following extract is taken from section 548 of the Education Act (1996) as amended by section 131 of the School Standards and Framework Act (1998), and again makes it clear that there is no “right” for a member of educational staff to administer corporal punishment to a child in any location, and that this applies to acts which would otherwise constitute “battery” (assault). It clarifies that this does not apply to acts aimed at protecting persons or property:
- Corporal punishment given by, or on the authority of, a member of staff to a child a) for whom education is provided at any school, or b) for whom education is provided, otherwise than at school, under any arrangements made by a local education authority, or c) for whom specified nursery education is provided otherwise than at school, cannot be justified in any proceedings on the ground that it was given in pursuance of a right exercisable by the member of staff by virtue of his position as such.
- Subsection (1) applies to corporal punishment so given to a child at any time, whether at the school or other place at which education is provided for the child, or elsewhere.
- The following provisions have effect for the purposes of this section.
- Any reference to giving corporal punishment to a child is to doing anything for the purpose of punishing that child (whether or not there are other reasons for doing it) which, apart from any justification, would constitute battery.
- However, corporal punishment shall not be taken to be given to a child by virtue of anything done for reasons that include averting a) an immediate danger of personal injury to, or b) an immediate danger to the property of, any person (including the child himself).
- "Member of staff", in relation to the child concerned, means a) any person who works as a teacher at the school or other place at which education is provided for the child, or b) any person who (whether in connection with the provision of education for the child or otherwise) (i) works at that school or place, or (ii) otherwise provides his services there (whether or not for payment), and has lawful control or charge of the child.
- "Child" (except in subsection (8)) means a person under the age of 18.
- "Specified nursery education" means full-time or part-time education suitable for children who have not attained compulsory school age which is provided a) by a local education authority; or b) by any other person (i) who is (or is to be) in receipt of financial assistance given by such an authority and whose provision of nursery education is taken into account by the authority in formulating proposals for the purposes of section 120(2)(a) of the School Standards and Framework Act 1998, or (ii) who is (or is to be) in receipt of grants under section 1 of the Nursery Education and Grant-Maintained Schools Act 1996; or c) (otherwise than as mentioned in paragra2ph (a) or (b)) in any educational institution which would fall within section 4(l) above (definition of “school) but for the fact that it provides part-time, rather than full-time, primary education.
The UK government Department for Education and Skills produced guidance on the legal framework for school discipline which governing bodies must by law have regard to when establishing school discipline policies and advising head teachers. In addition to reflecting the prohibition of corporal punishment, the school’s behaviour policy (para 2):
should make clear the boundaries of what is acceptable, the hierarchy of sanctions, arrangements for their consistent and fair application, and a linked system of rewards for good behaviour [and] promote respect for others, intolerance of bullying and harassment, the importance of self-discipline and the difference between “right” and “wrong”.
A checklist is available for use in creating and implementing the school behaviour policy. The Department also published guidance on dealing with signs of disaffection, which lists the sanctions for disruptive behaviour available in school:
15. Sanctions should be applied fairly and consistently to all pupils, taking account of all circumstances including the child’s age, and within a context of positive re-inforcement of good behaviour. Sanctions might include:
- Removal from the group (in class);
- Withdrawal of break or lunchtime privileges;
- Withholding participation in any school trips or sports events that are not an essential part of the curriculum;
- Withdrawal from, for example, a particular lesson or peer group;
- Completion of assigned work or extra written work; or
- Carrying out a useful task in the school.
16. Punishments that are humiliating or degrading should not be used.
A variety of documents relating to behaviour management in schools in England is provided by the General Teaching Council for England (www.gtce.org.uk/weblinks/behaviour_management/).