INTRODUCTION

The Prime Minister of the UK, Tony Blair, was asked point blank in an interview with BBC Two’s Newsnight on 10 January 2006(1) about whether he had ever “smacked” his children. He admitted that he did.

His admission drew differing responses from the public – ranging from support to disgust.

This incident itself shows the difficulty faced when dealing with the issue on corporal punishment on children – and the possibility of International Human Rights Law in attempting to prohibit it in any context.

This essay will attempt to deal with the issue in the following manner:-

1. What is corporal punishment (“CP”)?

2. The law and legal provisions on CP on children

3. The views for and against the call to prohibit CP on children in any context

4. Conclusion
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(1) See report online at this link:- http://news.bbc.co.uk/1/hi/uk_politics/4600454.stm

WHAT IS CP?

The Concise Oxford Dictionary defines CP as “punishment inflicted on the body, especially by beating”.

According to Wikipedia, CP is the “deliberate infliction of pain intended as correction or punishment ”.

It is submitted that these definitions are sufficient for the purposes of this essay.

It is also submitted that as this essay deals with CP on children, it is usually sub-divided into 3 areas which will be loosely referred to hereinbelow as Judicial CP, Educational CP and CP at home.

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(2) 8th Edition 1991 BCA
(3) http://en.wikipedia.org/wiki/Corporal_Punishment

THE INTERNATIONAL PROVISIONS

The relevant international provisions are as follows:-

Article 7 of the International Covenant on Civil and Political Rights (1966) (“ICCPR”) provides that “No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.”

Article 3 of the European Convention on Human Rights (1950) (“ECHR”) provides that “No one shall be subjected to torture or degrading treatment or punishment”.

Article 7 of the Universal Declaration on Human Rights which provides that “All are equal before the law and are entitled without any discrimination to equal protection of the law”. As such, the aforementioned provisions should be applied equally to children.

Article 37(a) of the United Nations Convention on the Rights of the Child (1989) (“CRC”) provides that “…no child shall be subjected to torture or other cruel, inhuman or degrading treatment or punishment”.

The CRC also provides in Article 19(1) that “State Parties shall take all appropriate… measures to protect the child from all forms of physical … violence, injury or abuse… while in the care of parent(s), legal guardian(s) or any other person who has the care of the child”.

The prohibition not to be subjected to “cruel, inhuman or degrading treatment or punishment” has been accepted to be a Customary International Law and taken to be a peremptory norm (4) where no derogation from it shall be allowed.

It would appear from the aforementioned provisions that international human rights law do in fact prohibit CP on children.

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(4) See para 8 of General Comment No. 24: Issues relating to reservations made upon ratification or accession to the Covenant or the Optional Protocols thereto, or in relation to declarations under article 41 of the Covenant : . 04/11/94.

THE DOMESTIC LAWS

Although many states have ratified the ICCPR, the ECHR and the CRC, yet, there are differing domestic laws regarding CP (5). While many states have abolished CP when it comes to adults, there are also states which have not and some still legalise CP on children and youthful offenders.

For example (6), in Bahamas, the Penal Code provides for whipping of boys under the age of 18 with a “light cane”. Both the Singaporean and the Malaysian Criminal Procedure Code allows boys under the age of 16 to caned with a “light rattan”. Those who are 16 years or older can be whipped like an adult.

Amnesty International observes that the Pakistan Penal Code allows children who have reached puberty to be sentenced with public flogging (7). In Sri Lanka, the courts are empowered to impose whipping as an additional punishment for certain offences for boys (8).

In the recent decision of the Supreme Court of Canada (9), a challenge to the validity of section 43 of the Criminal Code was dismissed. Section 43 justifies use of reasonable force by parents and teachers by way of correction of a child/pupil.

These domestic laws are among the many which illustrate that in spite of international human rights provisions which seek to prohibit CP on children, the same is not happening in individual states. There are some states which have completely abolished CP on children in whatever situations , these countries remain in the minority.

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(5) This website http://www.corpun.com/ has a list of countries showing the laws regarding CP.
(6) ibid
(7) http://web.amnesty.org/library/Index/engASA040011998
(8) ibid
(9) Canadian Foundation For Children, Youth & The Law v Attorney General & Ors (30.1.2004)
(10) Sweden, Norway, Denmark, Finland, Austria, Cyprus, Croatia, Latvia and Germany. The Supreme Courts in Rome, Namibia and Israel had recently ruled that CP is unlawful (source: Peter Newell’s article Ending Corporal Punishment of Children – see note 16 below)

THE CASE LAW

Unfortunately, while the international human rights provisions may seem to prohibit CP in any situation, the case law seems to suggest otherwise.

In the case of Tyrer v. UK (11) and Costello-Roberts v. UK (12), the European Court of Human Rights (“the Court”) dealt with CP in school. It is clear that in these decisions, the Court is indirectly stating that there will be some situations where the CP inflicted on a child is not a violation of Article 3 – it all depends on the facts of each case.

In the case of A v. UK (13), the Court had the opportunity to consider the application of Article 3 of the European Convention with regards to CP at home. In para 20 of the judgment, it was held that the “…ill-treatment must attain a minimum level of severity if it is to fall within the scope of Article 3”. In para 21, the Court held that the CP in that case “…reaches the level of severity prohibited by Article 3”.

Unfortunately, the Court, in finding a violation of Article 3 did not proceed further to consider Article 8 i.e. “Everyone has the right to respect for his private …life”.

Although the Court found a violation of Article 3, it is submitted that the main text of the judgment seem to imply that Article 3 does not prohibit CP in any context. In other words, the Court is saying in the cases referred above that there are some levels of severity in CP that does not fall within the scope of Article 3.

In view of the domestic and international provisions referred to above, it is not surprising that those who are opposed to CP on children are demanding that international human rights law be specific when prohibiting CP on children in whatever situations. The question one may ask then is whether this demand is justified.

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(11) (1978) 2 EHRR 1
(12) (1995) 19 EHRR
(13) (1999) 27 EHRR 611

ABSOLUTE PROHIBITION - THE CASE FOR

Peter Newell in his article Ending Corporal Punishment of Children (14) is of the view that every case of CP is deliberate violence to children and is a breach of their fundamental human rights. This is because CP always violates the child’s physical integrity, demonstrates disrespect for his/her human dignity and undermines self-esteem. To Mr. Newell, CP on children is an act of deliberate assault on a child.

Mr. Newell also pointed the dangers it causes on children, both short term and long term. He states “There is no question whatsoever that the overwhelming direction of the evidence points towards bad, unwanted effects, and certainly no positive long-term effects whatsoever.”

Steve Pete in his article To smack or not to smack? Should the law prohibit South African parents from imposing CP on their children? (15) observed that most of the research conducted “seems to indicate that moderate CP of the kind permitted by our common law is not beneficial, and may well cause harm to children”.

Jane Fortin in her article Children’s rights and the use of physical force (16) points out that advocates of prohibiting CP refer to “the growing body of research indicating that there are long-term negative effects associated with such punishment and that these far outweigh any seemingly short-term consequences”.

Another ground put forward is the comparison are made between acts towards adults and acts towards children. The question frequently asked is if it is not permissible to beat an adult, then why should it be permissible to beat a child? M. Freeman states “If CP punishment is bad for adults, then it is bad for children, because children are people too” (17).

Reference is always made to the situation in Sweden where CP on children has been abolished completely. This “success story” shows that it is possible to do so.

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(14) in Revisiting Children’s Rights, Fottrell 2000
(15) South African Journal on Human Rights Vol 14 1998 at pages 430-460
(16) Child and Family Law Quarterly (2001) at 243
(17) Time to stop hitting our children 1988 51 Childright 5-8

ABSOLUTE PROHIBITION - THE CASE AGAINST

Fortin observed that it “…has been argued cogently that the most pervasive influence inhibiting reform has been the cultural conditioning affecting our treatment of children (18)”.

The argument is that they themselves have received CP when they were a child and they do not see it having any negative effects on them today. It is very difficult to convince them of the negative effects of CP in such a case. Because of the wide practice in some states of CP which has been carried for generations, those who are in favour of it will no doubt point to the fact that many a good and respectable citizen today were once punished corporally.

Further, there are those who hold firm to the stand that CP on children is not only allowed but encouraged by their religion. They will no doubt point to the holy scriptures where none other than King Solomon himself said that “He who spares the rod hates his son, but he who loves him is careful to discipline him (19)”. Who would dare argue with the wisest man who lived on the earth?

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(18) See note 16 above
(19) Proverbs 13:24 New International Version

IS THERE A DIFFERENCE?

CP on children must be differentiated with child abuse. As the Prime Minister said, in the interview referred to at the beginning of this essay, ““I think everybody actually knows the difference between smacking a kid and abusing a child (20)”.

It is submitted that the issue here is not so much of child abuse but of disciplining a child. CP after all is about “punishment”. Surely a tap on the hands of a small child as a reprimand for touching matches even after being told not to is different from taking a baseball bat and battering the child. The infliction of physical pain without physical injury surely is not the same as violence against a child.

While it is conceded that a child is a human in the context of human rights, it cannot be said that a child is to be treated like an adult. In fact, the law treats a child differently and it is submitted that it is rightly so (21). The argument that if an adult has a certain right, a child must have that to in the exact similar way cannot hold weight if taken to the extremes. E.g. an adult has a legal right to obtain a license to drive a car but a child below a certain age does not enjoy the same right.

Further, the question that begs to be asked is where does it all end? If we abolish CP on children because we do not carry out CP on adults, then how can one punish a child? Can a parent then punish the child for being rude or ill-mannered by sending the child to his room or by “grounding” them? There is no way one can send an adult to his/her room or to ground them if they were being rude or ill-mannered!

Further the obvious difference between CP and child abuse is the attitude and the objective. The objective of CP on a child is to discipline the child out of love.

While it is conceded that it may be difficult to draw the line in some cases, it does not justify doing away all the good along with the bad.
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(20) See note 1 above
(21) E.g. in Court proceedings

CONCLUSION

While convincing arguments can be put forward by the advocates of abolishment of CP and those who are not, it is submitted that at the end of the day, it may not be practical for international human rights law to prohibit the use of CP on children in any context.

The major obstacle would be one of culture and religion. It must be accepted that in certain parts of the world today, CP on children is not only accepted but commended.

To a lot of people, abolishing CP on children would go against their religious beliefs. To others, it will culturally unacceptable.

Even in the United Kingdom, a cursory look at the BBC’s website referred to above(22) would show that even in this country, there is no unanimous consensus. In the recent government’s respect agenda, both sides were quick to blame the other side for the anti-social problems which have arisen recently – those who are for CP alleged that the rise of anti-social behaviour is a result of the abolishment of CP in schools while those who are against the CP alleged that such behaviour is a respond of those who had been beaten when they were a child.

Therefore it will be not only controversial but difficult for any international law to take such a hard stand. Cultural practices may change but religious beliefs will generally remain the same.

Even with such laws in place, there is no guarantee that abuse of children would end. It is interesting to note that the Children’s Committee’s comments on Finland when it state that although Finland “…was the second state in the world to prohibit all corporal punishment of children…, the committee is concerned at the number of cases of violence against children…(23)”.

Therefore, it is submitted that one must accept that CP on children will be carried out and international human rights law as well as domestic laws must work to prevent it from amounting to abuse and/or inhuman and degrading treatment.

Just like in the controversy over the beginning of childhood – whether it is at the point of birth or at the point of conception or any other point in between that – the international laws should leave it to individual states to rule on that matter.

In the meantime, a close eye should be kept on the states which have abolished CP on children completely as these states could be used in the future as an example and make a persuasive argument for the advocates of abolishment. Just like the efforts made in Sweden before the laws to abolish CP was passed, efforts should be made now to educate people from all over the world on alternative methods of disciplining and to promote such methods. Perhaps with the implementation of such methods, parents will find there not to be any need to resort to CP when disciplining their child.

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(22) See note 1
(23) Finland 2RCO, Add.132, paras 39

BIBLIOGRAPHY & ACKNOWLEDGEMENTS

Statutes

Convention for the Protection of Human Rights and Fundamental Freedoms (1950). For text, see P. R. Ghandhi, Blackstone’s International Human Rights Documents (Oxford University Press, 3rd Edition 2002) pg 215

International Covenant on Civil and Political Rights (1966). For text, see I. Brownlie and G.S. Goodwin-Gill, Basic Documents on Human Rights, (Oxford University Press, 4th edition, 2002), pg 182.

United Nations Convention on the Rights of the Child (1989). For text, see P. R. Ghandhi, Blackstone’s International Human Rights Documents (Oxford University Press, 3rd Edition 2002) pg 119

Universal Declaration of Human Rights (1948). For text, see I. Brownlie and G.S. Goodwin-Gill, Basic Documents on Human Rights (Oxford University Press, 4th edition, 2002), pg 18.

Cases

Canadian Foundation For Children, Youth & The Law v Attorney General & Ors (30.1.2004)

Tyrer v UK (1978) 2 EHRR 1

Costello-Roberts v UK (1995) 19 EHRR

Av UK (1999) 27 EHRR 611

Documents

General Comment No. 24: Issues relating to reservations made upon ratification or accession to the Covenant or the Optional Protocols thereto, or in relation to declarations under article 41 of the Covenant : . 04/11/94.

Research

Rachel Hodgkin and Peter Newell, Implementation Handbook for the Convention on the Rights of the Child, (United nations Children’s Fund 2002)

The Concise Oxford Dictionary 8th Edition 1991 BCA

Peter Newell, Ending Corporal Punishment of Children (in Revisiting Children’s Rights, Fottrell 2000)

Steve Pete, To smack or not to smack? Should the law prohibit South African parents from imposing CP on their children? South African Journal on Human Rights Vol 14 1998 at pages 430-460

Jane Fortin, Children’s rights and the use of physical force Child and Family Law Quarterly (2001) at 243

M. Freeman, Time to stop hitting our children 1988 51 Childright 5-8

The Holy Bible (New International Version)

http://news.bbc.co.uk/1/hi/uk_politics/4600454.stm

http://en.wikipedia.org/wiki/Corporal_Punishment

http://www.corpun.com/

http://web.amnesty.org/library/Index/engASA040011998

Thanks to Diedre Fottrell, my lecturer for all the guidance; and to Low Yin Chan for her assistance in research.