Prohibition of all corporal punishment in Ireland (2015)

In November 2015, following more than a decade of mounting human rights pressure on Ireland to confirm through law reform children’s right to equal protection from assault, the Children First Act was passed and the “reasonable chastisement” defence was formally abolished. This completed the process of prohibiting all corporal punishment of children in all settings, including the home.

The Children Act 1908 had confirmed the common law defence of “reasonable chastisement” in article 37: “Nothing in this Part of this Act [on prevention of cruelty to children] shall be construed to take away or affect the right of any parent, teacher or other person having the lawful control or charge of a child or young person to administer punishment to such child or young person.” The 1908 Act was repealed by the Children Act 2001, which did not include the right to administer punishment but did not explicitly repeal it: the defence of “reasonable chastisement” remained in common law and further reform was necessary. The Children First Act 2015 explicitly repealed the defence by way of an amendment to the Offences Against the Person (Non-Fatal) Act 1997, inserting a new section 24A:

The common law defence of reasonable chastisement is abolished…."

Speaking during the report and final stages debate in the Seanad, Senator Jillian van Turnhout, who tabled the original amendment, stated:

This ancient defence of reasonable chastisement is not an Irish invention. It came to us from English common law. Through its colonial past, England has been responsible for rooting this legal defence in over 70 countries and territories throughout the world. In England, Wales and Northern Ireland, the reasonable punishment defence still allows parents and some other carers to justify common assault on children. In Scotland, there is another variation, namely the defence of justifiable assault. In this action being taken today, the Government is putting children first and providing leadership, which will hopefully give confidence to the Government at Westminster, the devolved UK Administrations and other countries across the globe to discard these archaic and disreputable defences and give full respect to the dignity of children…. With this amendment we have a way to unite and agree that all citizens are equal. There must never be a defence for violence against children.”

Minister for Children and Youth Affairs James Reilly, confirming the Government’s support for removal of the defence, stated:

The amendment before the House provides for the total abolition of the common law defence of reasonable chastisement. It does not create a new offence but rather removes something that has its roots in a completely different era and societal context. The measure asserts: that there is no circumstance in which it may be seen to be in order to hit a vulnerable person, in this case a child; that from a child's perspective there is nothing reasonable about being on the receiving end of corporal punishment; that Irish parents are no less protective of their children, nor less progressive in their parenting practices, than those in the other 19 European countries where a statutory ban on corporal punishment is in place; that the Government, by its laws, will protect and vindicate the rights of children; and that Ireland is diligent as regards meeting its international obligations in the area of human rights. The measure represents a significant advancement as regards the protection and rights of children. It reinforces the developing impetus in parenting practices in Ireland to use positive discipline strategies in upbringing of children which reject the use of corporal punishment.”

In the early 2000s, the Irish Government had indicated a long term commitment to prohibiting all corporal punishment of children but had given no indication of timing. In the years following, the official position was that the matter was being “kept under review”. Recommendations on the issue were made repeatedly to Ireland by UN and European treaty bodies – the Committee on the Rights of the Child (1998, 2006), the Committee Against Torture (2011), the Committee on Economic, Social and Cultural Rights (2002), the Human Rights Committee (2000, 2014) and the European Committee of Social Rights (2001, 2011) – and during the Universal Periodic Review of Ireland in 2011.

In 2003, a complaint was brought against Ireland by the World Organisation Against Torture under the collective complaints procedure of the European Social Charter (Collective complaint No. 18/2003, World Organisation against Torture (OMCT) v Ireland). 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 was permitted by the common law defence of reasonable chastisement, which was also applicable in foster care, residential care and certain childminding settings.

In February 2013, a second collective complaint on the issue – submitted by the Association for the Protection of All Children (APPROACH) Ltd – was registered by the European Committee of Social Rights. The complaint alleged that the existence of the Irish common law of “reasonable chastisement” allowed parents and some other adults to assault children with impunity, and that Ireland had taken no effective action to remedy the violation of article 17 in this respect that was found by the Committee in the previous complaint in 2003 (Collective complaint No. 93/2013, Association for the Protection of All Children (APPROACH) Ltd v Ireland). The complaint was declared admissible on 2 July 2013; the Committee published its decision in May 2015. The Committee concluded that the law in Ireland did not prohibit all corporal punishment of children in the family and in all forms of care and that the common law defence of “reasonable chastisement” continued to exist; this situation was in violation of article 17 of the Charter. Following publication of the decision in May 2015, Minister for Children James Reilly reported that the “reasonable chastisement” defence would be reviewed. Abolition of the defence was achieved shortly afterwards.

Prior to this law reform, corporal punishment of children in Ireland was prohibited by law in schools and in the penal system, but it was lawful in the home and in some forms of alternative care and day care. With the repeal of the “reasonable chastisement” defence, Ireland became the 20th European Union state to achieve prohibition of corporal punishment, the 29th Council of Europe member state, and the 47th state worldwide.

 

Further information

This is an automatic translation service. Extracts from laws, treaty body recommendations and Universal Periodic Review outcomes are unofficial translations.