ISPCAN 14th International Congress on Child Abuse and Neglect, July 7 - 10, 2002, Denver, Colorado, USA
ENDING LEGAL VIOLENCE TO CHILDREN: ACCELERATING THE END OF CORPORAL PUNISHMENT
Tuesday July 9, Directors Row H, Adams Mark Hotel
Peter Newell, Joint Co-ordinator, Global Initiative to End All Corporal Punishment of Children (www.endcorporalpunishment.org)
The purpose of this Congress is to chart progress towards protecting children worldwide. The real goal, the only respectable goal and one which is long overdue, must be full acceptance of children as people who have the same right to physical integrity and human dignity as the rest of us. Child protection has become a vast, multi-disciplinary industry in many countries. Yet in almost all of them it co-exists with laws and cultures that actually encourage violence towards children.
Most countries now claim to have some sort of child protection system. Yet about 90 still allow whipping or caning of children as part of their penal system for young offenders, and rather more still allow teachers to beat children with sticks or belts. In all but 11 countries, parents and others are given special legal protection for hitting their children . Books are still being published that advocate hitting children, including with implements. Extremist minorities within Christianity and other major religions are still getting away with preaching that hitting children is not just a right but a duty. There are other defenders of deliberately hurting children, particularly in this part of the world, who claim to be passionate defenders of "family" values, but put little or no value on the dignity and safety of children, the smallest family members.
It is unbelievable, but unfortunately true, that many people working in child protection are still trying to defend, or turn a very blind eye to, corporal punishment as if it was a separate phenomenon from abuse; they allow themselves to defy logic and humanity and define child abuse in a way which condones an arbitrary and often very high level of violence to children. Physical abuse of children is corporal punishment. Maybe a tiny minority of perpetrators are psychotic and don't have any punitive motive for assaulting children. But the abuse that globally kills thousands of children - mostly very young - and maims and injures countless thousands more is corporal punishment.
To pretend that we are making a serious attempt to stop this daily, global assault on children if we do not advocate giving children full legal protection from assault is simply absurd. Ten years ago, I used to be puzzled by the hesitation of the child protection community to sign up to campaigns for law reform. Now I am disgusted by it.
Try telling a woman these days that slapping her is not domestic violence but domestic discipline.
The adult invention of disreputable legal concepts such as "reasonable chastisement" and "lawful correction" arose from the perception of children as property. Traditional attitudes to slaves, servants and women were also reflected, only a century or two ago, in the "rights" of their masters and husbands to beat them . Of course, there is still far too much violence to women, but in few countries does the law still defend it, in the home or anywhere else.
It is extraordinary and shaming to all of us that children, whose developmental state and small size is acknowledged to make them particularly vulnerable to physical and psychological injury, should be the ones singled out in our laws for less protection from assaults on their fragile bodies, minds and dignity. This is an issue which sees adults at their most hypocritical. We have invented a whole vocabulary of words and phrases to make us feel more comfortable about hitting children - smacking, spanking, tapping, a good hiding, six of the best...
While it is intolerable and inexcusable that children should have had to wait until last, it is "understandable", because of the deeply personal nature of the issue - most people were hit as children; most parents have hit their children. We like to think well of our parents, and of our parenting. But this can and does get in the way of compassionate and logical consideration of the arguments.
Progress - visibility and human rights
Over the last decade there has been undeniable progress towards at last achieving children's equal human rights to protection. First, the increasing visibility of corporal punishment makes it difficult for all but a very hardened minority of adults to ignore or deny it; once acknowledged, for most of us it is not defensible. Second, and more fundamentally, it is the human rights perspective that is now at last moving us on, in many countries throughout the world, towards a new respect for children as people.
Human rights are universal. Hitting people, including small people, breaches their fundamental rights to physical integrity and human dignity. We know it for ourselves; how can we possibly deny it to children? The existence throughout the UK, the US and all but 11 other countries of a special legal defence for hitting children breaches children's human right to equal protection under the law.
The particular task of the United Nations Convention on the Rights of the Child has been to confirm that when the other basic human rights instruments refer to "everyone", they do include children: that children, too, are holders of human rights. Only this country - the US, and Somalia have not as yet accepted the Convention - and in this country among the reasons are the desire to go on executing children and to be able to beat them at home and school.
The Convention is the first international human rights instrument expressly to address the protection of children from violence: Article 19 requires states to take "all appropriate legislative, administrative, social and educational measures to protect the child from all forms of physical or mental violence..." while in the care of parents and other carers.
The state's obligation to protect children and other vulnerable individuals, in their homes and everywhere else, is clearly established in the Convention. Human rights do not stop at the door of the family home or the school house gates. While the state is not directly responsible for the violence of individual parents and teachers, the state is required to provide a framework of law and educational and other measures to protect children like everyone else and to deter violence.
The starting point and the only starting point for putting things right - really right - is to ensure that all children have equal protection from being hit under the criminal law on assault.
Committee on the Rights of the Child The Committee on the Rights of the Child, the internationally elected Treaty Body for the Convention, has consistently stated that legal and social acceptance of corporal punishment of children, whether in their homes or in institutions, is not compatible with the Convention. The Committee has recommended prohibition of all corporal punishment, including in the family, and campaigns to raise awareness of the negative effects of corporal punishment and to encourage the development of positive, non-violent child-rearing and educational practices to well over 120 states in all continents.
In its first General Comment, on the aims of education, it states:
"Children do not lose their human rights by virtue of passing through the school gates. Thus, for example, education must be provided in a way that respects the inherent dignity of the child...Education must also be provided in a way that respects the strict limits on discipline reflected in article 28(2) and promotes non-violence in school. The Committee has repeatedly made clear in its concluding observations that the use of corporal punishment does not respect the inherent dignity of the child nor the strict limits on school discipline. Compliance with the values recognised in article 29(1) clearly requires that schools be child-friendly in the fullest sense of that term and that they be consistent in all respects with the dignity of the child."
Following a day of General Discussion last September on "Violence against children in families and schools", the Committee adopted formal recommendations, including: "The Committee urges States parties to enact or repeal, as a matter of urgency, their legislation in order to prohibit all forms of violence, however light, within the family and in schools, including as a form of discipline, as required by the provisions of the Convention ..."
The Committee also recommended a major UN Study on violence against children; this was accepted by the UN General Assembly last November and will go ahead later this year. The Committee was emphatic that such a study must include all violence including corporal punishment, however light, and it emphasised that "In conceptualising violence, ... the critical starting point and frame of reference [must] be the experience of children themselves."
Children's views
In promoting the concept of children as rights holders, a key provision in the Convention is article 12, the obligation on governments to ensure that children have the right to express their views freely on all matters that affect them and to have those views given due consideration. So we need to listen to what children have to say about this issue which affects them uniquely. Can you imagine consultations about domestic violence that only invited views from men? In the UK in 1999, when the Department of Health in England showed no sign of consulting with children about law reform on corporal punishment, the National Children's Bureau and Save the Children commissioned a study of the views of five to seven year-old children. These children defined smacking as hitting; most of them described a smack as a hard or very hard hit. Children said smacking hurts. The vast majority thought smacking was wrong. They said children respond negatively to being smacked, and adults regret smacking. The title of the report, using the children's words, is "It hurts you inside".
Key judgments Quoting human rights standards, there has been a succession of key judgments from various high level courts in many countries, in Africa, Asia, Europe, the Middle East. During the 1970s and 1980s, the use of corporal punishment in the penal system for young offenders and in schools was challenged through a succession of applications to the regional European human rights mechanisms in Strasbourg by UK children, parents and representatives. First, flogging in the Isle of Man (a UK dependent territory) was condemned; then school corporal punishment, although the European Court of Human Rights stopped short of condemning corporal punishment per se.
Then in 1998, the European Court found the beating of a young English boy by his stepfather breached the boy's right to protection from inhuman and degrading punishment and that the UK Government was responsible because the law allowing reasonable chastisement failed to provide adequate protection including "effective deterrence". The Government promised the Court and the public in the UK that it would change the law to give children better protection. That's the only reason for the current debate on legal reform in the UK. The Government consulted on various ways of re-defining "reasonable" punishment (for example, banning implements, or blows round the head), but then announced last November that for England and Wales it would not change the law, although it would keep use of the "reasonable chastisement" defence under review.
The Committee of Ministers of the Council of Europe, responsible for supervising the execution by states of judgments of the European Court, is not satisfied by the UK's response and has asked how it intends to prevent similar breaches of children's rights. So our Government may not get away with doing nothing. It did commit itself before the Court, and told the public that it would change the law to give children "better protection". It is arguing unconvincingly that the incorporation of the European Human Rights Convention into UK law through the Human Rights Act 1998 does all that is necessary to protect children.
Our government in the UK emphatically defends the legal status quo, senior ministers - our current Home Secretary - is quoted proudly boasting "I smacked my children and it worked". Devolution allows Scotland and Northern Ireland to go their own way on law reform. No proposals have as yet been announced in Northern Ireland, which held a much more open consultation at the beginning of the year.
So far, only Scotland has produced proposals to change the law. Earlier this year, it introduced to the Scottish Parliament a Criminal Justice Bill which would ban all physical punishment of children up to their third birthday and use of implements, shaking and blows to the head for all children. It changes the language of the law, introducing the concept of "justifiable assault" of children, which at least is a more accurate and down-to-earth - but still disreputable - description of what the law-makers are up to than "reasonable chastisement" or "lawful correction".
But it is really another cowardly attempt by adults to compromise... Of course the cartoonists like it - the spectacle of babies and toddlers crawling towards the Scottish border. But what do they do on their third birthdays? One of the arguments advanced for the pragmatism of the age-based prohibition is that below three, children are unlikely to understand the punishment. So from three do we really want them to understand that adults believe it is OK to hit them and hurt them - as long as they don't use a stick and avoid the head?
Some campaigners have welcomed these proposals, and of course in one sense we have to welcome progress towards protecting any children as a first step. But to me there is something sick about grown people understanding that the law needs to be changed and then drafting such debasing proposals. How can politicians comfortably debate at what age they and others should be allowed to assault children, on what parts of the body, with what implements, how hard. Again, can you imagine a debate these days about how to slap women - at what age, on what parts of the body, with what and how hard?
So in the UK we have the European Court to thank for forcing the issue onto the political agenda, just as it has forced our unwilling Government to end school corporal punishment, the last in Europe to do so. It is plain that our focus-group-obsessed Government would not lift a finger to protect children unless forced to do so. We plainly need more cases to take to the Court to push them into giving children equal protection.
In other countries, there have been clearer judgments: Italy's Supreme Court declared all corporal punishment of children unlawful in 1996. The judgment states " ...the use of violence for educational purposes can no longer be considered lawful".
In 2000, Israel's Supreme Court produced a particularly strong human rights judgment against all corporal punishment, and the Knesset removed the common law defence. "... in the legal, social and educational reality in which we live, we cannot leave open the definition of 'reasonable' and thus compromise at the risk of danger to the health and welfare of children. We must also take into account that we live in a society in which violence is as pervasive as a plague; an exception for 'light' violence is likely to degenerate into more serious violence. We cannot endanger the bodily and mental integrity of the minor with any type of corporal punishment; the type of permissible measures must be clear and unequivocal, the message being that corporal punishment is not permitted..."
Even more recent, earlier this year, an appeal court in Fiji declared corporal punishment in schools and the penal system unconstitutional. In an appeal against a sentence of, among other things, six strokes of corporal punishment in the Fiji Court of Appeal, the Fiji Human Rights Commission intervened with written submissions. These stated that all corporal punishment, per se, is against section 25(1) of the Fiji Constitution and against international human rights law.
The judgment declared: "Children have rights no wit inferior to the rights of adults. Fiji has ratified the Convention on the Rights of the Child. Our Constitution also guarantees fundamental rights to every person. Government is required to adhere to principles respecting the rights of all individuals, communities and groups. By their status as children, children need special protection. Our educational institutions should be sanctuaries of peace and creative enrichment, not places for fear, ill-treatment and tampering with the human dignity of students..."
The Court quashed the sentence of corporal punishment and in addition declared that corporal punishment in the penal system and in schools is unconstitutional and unlawful.
Complete abolition
Israel and Germany became the latest states to abolish all corporal punishment of children, including in the family, in 2000. Nine others have done so, if one includes Italy's Supreme Court decision, all in Europe. They are Austria, Croatia, Cyprus, Denmark, Finland, Latvia, Norway and Sweden - the first to add an explicit prohibition to its civil law in 1979, more than 20 years ago.
The legal provision forms part of Sweden's family (civil) law: "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". But its purpose is to emphasise beyond doubt that the criminal code on assault covers physical punishment, although trivial offences remain unpunished just as trivial assaults between adults are not prosecutable. It is important to note that more than 20 years earlier in Sweden, in 1957, the equivalent of the "reasonable chastisement" defence - a criminal law provision excusing parents who caused minor injuries through physical punishment - was removed. Similar provisions were removed from the criminal law on assault in the other countries which have gone on to ban all corporal punishment. But they found that these repeals did not send a clear enough message to parents and others: an explicit ban was needed.
When the Swedish ban was coming into force in 1979, the International Year of the Child, a Ministry of Justice official explained: "By the prohibition of physical punishment, the legislator wanted to show that a child is an independent individual who can demand full respect for his or her person, and who should thus have the same protection against physical punishment or violence as we adults see as being totally natural for ourselves".
A rigorous and detailed research review of the effects of the Swedish ban, published in 1999 by Save the Children UK, has identified very positive trends.
Religious extremists
There have been other important judgments rejecting attempts by parents and teachers to challenge abolition of corporal punishment on grounds of religious belief or family rights. In Sweden, following implementation of the explicit ban on all corporal punishment in 1979, a group of parents representing a minority religious sect sought to challenge the ban by application to the European Commission on Human Rights, quoting rights to family life and privacy as well as freedom of religion. The application was rejected as unfounded in 1982. The Commission found that extension of the Swedish law on assault to apply to the ordinary physical chastisement of children by their parents "is intended to protect potentially weak and vulnerable members of society".
Applications from very similar groups of fundamentalist Christian schools and parents who tried to challenge abolition of school corporal punishment in the UK and in South Africa. have been rejected by the European Court of Human Rights and by the Constitutional Court of South Africa.
Everyone should enjoy freedom of religious belief, but belief cannot lead on to practices which breach other fundamental rights. Nor can claims of family rights be used to justify breaching the rights of any family members - small or large. Religious extremists who advocate ritualistic hitting of children with implements need to be condemned by mainstream religious opinion. The established churches have every reason to feel defensive about violence to children at the moment and they should be in the forefront of supporting our campaigns.
Hitting and discipline
And finally, there are two other misconceptions we have to keep challenging. Hitting children has nothing whatsoever to do with "discipline". Discipline, literally, is about leading our children to good behaviour, modelling good behaviour, moving children on to self-discipline. Hitting and humiliating children is a lesson in bad behaviour. Of course in the short term it may stop the child doing something - wouldn't you stop at least for the moment if someone several times larger than you slapped you? Whatever the motivation for hitting, the real lesson is that someone who the child hopefully regards with love and respect believes that violence is a useful response to conflict or problems. It is a lesson we emphatically do not want to teach our children.
I am sickened by those few psychologists, Larzelere, Baumrind and so on - who persist in defending hitting children - provided it is only done in a carefully controlled way on certain parts of children of certain ages and never in anger - as a way of obtaining short-term compliance. Either some strange academic zeal - or other motivations - have blinded them to the sordid reality of what they are advocating, or they simply lack humanity.
The research debate into the effects of corporal punishment seems never-ending and it now acts as a distraction from the human rights imperative. Again, can you conceive of anyone regarding research into the long and short-term effects of slapping women in various ways on various parts of their bodies being in anyway relevant to the domestic violence agenda?
Hitting and safety
The other strange misconception is that hitting children is a way of keeping them safe. I have heard many parents suggest that they smack their children only as a way of keeping them out of danger - the toddlers that I have never come across who poke their fingers into electric sockets. It's a crazy line of argument: of course we have to constantly use physical means to protect children - especially young children - from dangers, grabbing them, holding them, lifting them. But if we hit them, we both waste valuable protective seconds doing so and - more important - we confuse the message the child gets. We want them to get a very clear message about the external danger, one that will protect them when we are not there. (And of course there are distinct legal defences for physical actions taken to protect children or anyone else).
Global Initiative
There are a lot of anniversaries to celebrate at this Congress. One is that it is 10 years since the Hamburg ISPCAN congress at which we held a side-event to launch EPOCH-WORLDWIDE, an international network of organisations around the world committed to ending all corporal punishment of children, through education and legal reform. Now the Global Initiative to End All Corporal Punishment of Children has grown on the foundations of EPOCH-WORLDWIDE:
Thomas Hammarberg from Sweden, a former Vice-Chair of the Committee on the Rights of the Child, and I last year launched the Global Initiative, during the Human Rights Commission in Geneva. Its aim is to speed progress in the context of the UN Convention on the Rights of the Child, by building on the recommendations of the Committee on the Rights of the Child. It has the support of UNICEF, UNESCO, the UN High Commissioner for Human Rights, members of the Committee on the Rights of the Child, and many key international and national non-governmental organisations. The High Commissioner for Human Rights, Mary Robinson, sent a very supportive statement:
"The recourse to physical punishment by adults reflects a denial of the recognition, by the Convention on the Rights of the Child, of the child as a subject of human rights. If we want to remain faithful to the spirit of the Convention, strongly based on the dignity of the child as a full-fledged bearer of rights, then any act of violence against him or her must be banned, in accordance with articles 19 and 28.2 of the Convention.
"I believe that in addition to legal prohibition, sensitization of all actors of society - in particular parents and teachers - to the negative impact of physical violence is a key aspect of the process leading to a non-violent society. Violence should never be legitimized.
"... Children and adolescents deserve better than to be beaten for their so-called errors or disobedience. They deserve constant and quality guidance and attention; creative and enriching dialogue; and stimulating and challenging education. No form of violence, including physical, sexual or psychological, can ever be justified as being in the best interests of the child."
We must all be impatient now on behalf of children. How can we expect children to take human rights seriously while we adults not only persist in smacking and beating them, but actually defend doing so as being 'for their own good'? Smacking children is not just a lesson in bad behaviour; it is dangerous in the short and long term and above all it is a potent demonstration of contempt for the human rights of smaller, weaker people.