Child corporal punishment laws

[[File:Map of domestic corporal punishment abolition.svg|thumb|400px|{{legend|#c83737|alt=world political map with countries highlighted where corporal punishment is outlawed |Countries as of 2018 which have outlawed all forms of corporal punishment of children.[1]]]

The legality of corporal punishment of children varies by country. Corporal punishment of minor children by parents or adult guardians, which is any punishment intended to cause physical pain, has been traditionally legal in nearly all countries unless explicitly outlawed. According to a 2014 estimate by Human Rights Watch, "Ninety percent of the world’s children live in countries where corporal punishment and other physical violence against children is still legal".[2] Many countries' laws provide for a defence of "reasonable chastisement" against charges of assault and other crimes for parents using corporal punishment. This defence is ultimately derived from English law.[3]

Prohibition

Countries (or territories) that have completely prohibited corporal punishment of children are listed below (in chronological order):

Laws by country

Argentina

Banned in 1813, school corporal punishment was re-legalised in 1817 and punishments by physical pain lasted until the 1980s. The instruments were rebenques, slappings in the face and others.[6][7] All corporal punishment became prohibited through a law in 2014 which came into force in January 2016.[8]

Australia

In Australia, corporal punishment of minors in the home is legal provided it is "reasonable".[9][10] Parents who act unreasonably may be committing an assault.[11][12] The Australian state of Tasmania is continuing to review the state's laws on the matter, and may seek to ban the use of corporal punishment by parents. The matter is also under review in other Australian states. A 2002 public opinion survey suggested the majority view was in support of retaining parents' right to smack with the open hand but not with an implement,[13] although as of 2010, there are no laws against using an implement in any state or territory. In New South Wales, S61AA of the Crimes Act (1900) allows a parent a defence of lawful correction.[14]

Austria

School corporal punishment was explicitly prohibited in Austria in 1974. In 1977, corporal punishment in the home was outlawed by removing the section in the constitution of assault in the Penal Code that stated that parents who have used "reasonable punishment" of their children shall not be punished for assault. On 15 March 1989, corporal punishment of children became explicitly banned through a new law stating that "using violence and inflicting physical or mental suffering is unlawful".[15]

Canada

In Canada, parents may use physical force to discipline their children, including spanking, but there are several restrictions.

Section 43 of the Criminal Code provides that parents may use "reasonable" force as a form of discipline.[16] The constitutionality of this provision was challenged in the courts, on the basis that it infringed the rights of children, contrary to three sections of the Canadian Charter of Rights and Freedoms: the right to security of the person, protected by s 7 of the Charter; the right to be free from cruel and unusual treatment and punishment, protected by s 12 of the Charter; and the right to equality (specifically, age), protected by s 15 of Charter. In 2004, the Supreme Court of Canada dismissed the constitutional challenge on all grounds, on a 6-3 split, in Canadian Foundation for Children, Youth and the Law v. Canada.[17]

In upholding s 43, the majority of the Court provided considerable guidance to the interpretation of the provision. The majority held that the person administering the discipline must be a parent or legal guardian, or in some cases, a school teacher (i.e. non-parental relatives such as grandparents, aunts, or uncles, as well as babysitters and other caretakers, are banned from spanking); that the force must be used "by way of correction" (sober, reasoned uses of force that address the actual behaviour of the child and are designed to restrain, control or express some symbolic disapproval of his or her behaviour), that the child must be capable of benefiting from the correction (i.e. not under the age of 2 or over 12), and that the use of force must be "reasonable under the circumstances", meaning that it results neither in harm nor in the prospect of bodily harm. Punishment involving slaps or blows to the head is harmful, the Court held.[18] Use of any implement other than a bare hand is illegal and hitting a child in anger or in retaliation for something a child did is not considered reasonable and is against the law. The Court defined "reasonable" as force that would have a "transitory and trifling" impact on the child. For example, spanking or slapping a child so hard that it leaves a mark that lasts for several hours would not be considered "transitory and trifling".[19]

Among the recommendations of the Truth and Reconciliation Commission, formed to redress the legacy of the Canadian Indian residential school system, is a call to repeal Section 43 of the Criminal Code.[20]

Denmark

Corporal punishment in schools in Denmark became explicitly prohibited in 1967 and in 1985, parents' right to use corporal punishment of their children became outlawed through a new law which required parents "to protect their child from physical and psychological violence and other humiliating treatment".[21][22] However, the law was believed to still support corporal punishment as there was a controversy wheater the law permitted parents to punish their children physically or not.[23] Therefore, after several years of debate, a new more clear law came into force on 28 May 1997, providing that "The child has right to care and security. It must be treated with respect for its person and must not be subjected to corporal punishment or other humiliating treatment".

However, its autonomous countries Faroe Islands and Greenland banned corporal punishment of children in 2007 and 2016 respectively.

Finland

School corporal punishment was banned in 1914.[24] Parents' right to use corporal punishment of their children was outlawed in 1969 when the section in the constitution of assault in the Penal Code, stating that a "petty assault" was not punishable if committed by parents or others who exercise their right to chastise a child, was removed. In 1983, corporal punishment of children was explicitly banned.

Germany

School corporal punishment was prohibited in East Germany (which became a part of the Federal Republic of Germany at the German reunification on 3 October 1990) and in the Federal Republic of Germany (West Germany before the German reunification on 3 October 1990), it became prohibited at different times in its states between 1975 and 1983.[25]

In the Federal Republic of Germany, in 1980 it became prohibited for parents to educate their children with "degrading measures" (however, it was not clear exactly what "degrading" meant), of which the common interpretation was that corporal punishment of children was still permitted as long as it was not "degrading". On 1 July 1998, corporal punishment was outlawed through a new law stating that "Degrading educational measures, especially physical and psychological maltreatment, are inadmissible"; however, the common interpretation of that law was that parents still had some right to use corporal punishment of their children. Therefore, on 8 November 2000, that law was replaced with a new more clear and strict law stating that "Children have right to a non-violent upbringing. Corporal punishment, psychological violence and other degrading educational measures are inadmissible.".[26][27]

Ireland

In Ireland, child corporal punishment has been definitively criminalised since the Children First Act 2015.[28] Law in the Republic of Ireland inherited the pre-independence common law and statutes modelled on English law. These included allowance under common law of "physical chastisement" by teachers, and under the Children Act 1908 of "reasonable chastisement" by parents and those in loco parentis. School corporal punishment was prohibited in 1982 by an administrative decision of John Boland, the Minister for Education.[29][30] Teachers were not liable to criminal prosecution until 1997, when the rule of law allowing physical chastisement was explicitly abolished.[31] The Children Act 2001 repealed the 1908 act but, except in children detention schools, did not explicitly prohibit corporal punishment;[32][33] the common-law defence of "reasonable chastisement" remained available to parents facing a charge of assault.[33][28] In response to a complaint filed with the European Committee of Social Rights,[34] the defence was abolished under the Children First Act 2015.[35][29]

Italy

School corporal punishment became prohibited in 1928. In 1996, the Supreme Court of Italy ruled that physical punishment is no longer an acceptable way to discipline children.[36] However, that is still not confirmed in legislation.[37]

Norway

School corporal punishment was explicitly prohibited in 1936. In 1972, an 1891 law that gave parents some right to use corporal punishment of their children was removed from the constitution of assault in the Penal Code, which made corporal punishment of children unlawful and punishable as assault. In order to clarify that violence towards children is not allowed, an explicit ban on corporal punishment of children came into force in 1987.[38]

However, the Supreme Court of Norway ruled in 2005 that a light "careful slap" applied immediately after the "offence" was still allowed.[39][40] The legislature abolished this in 2010, and the current law is that any violence against children, including careful slaps, is prohibited.[41]

Poland

In 1783, Poland became the world's first country to outlaw school corporal punishment. According to article 40 in the 1997 Constitution of Poland, "No one may be subjected to torture or cruel, inhuman, or degrading treatment or punishment. The application of corporal punishment shall be prohibited.".[42] However, there was a controversy whether parents' right to use corporal punishment of their children was supported by law or not, until 2010, when it became explicitly prohibited.

South Africa

Common-law precedent in South Africa held that a parent may "inflict moderate and reasonable chastisement" on a child.[43] However, the Department of Social Development prepared legislation to prohibit corporal punishment in the home by 2013;[44] it had already been illegal in schools and the penal system since 1996; and in 2017, all corporal punishment of children by adults became prohibited.[45]

South Korea

In South Korea, Article 915 of the Civil Act 1958 provides adults the "right to take disciplinary action". Laws against violence and abuse are not generally interpreted as prohibiting corporal punishment of children.[46]

Sweden

See also Corporal punishment in the home#Swedish ban.

Sweden was the world's first nation to outlaw corporal punishment of children in 1966, when the law that permitted parents to use corporal punishment of their children became removed and fully replaced with the constitution of assault under the Penal Code; however, even though the law no longer supported parents' right to use physical punishment of their children, it was believed to still be permitted (as there was no explicit ban). School corporal punishment was already banned since 1958. On 1 July 1979, Sweden became the world's first nation to explicitly ban corporal punishment of children, through an amendment to the Parenthood and Guardianship Code which stated, "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."[47][48][49] Corporal punishment in Sweden does not usually carry a criminal penalty, unless it meets the criteria for assault.[47]

United Kingdom

In the United Kingdom, domestic corporal punishment is generally legal, but with some restrictions.

England and Wales

Criminal law has a general prohibition against common assault and battery, but corporal punishment is legal through tradition and an implicit common law justification/defence (R v Hopley 2F&F 202, 1860[50]) to such charges for parents striking their children in the context of "lawful correction" where the act is "moderate and reasonable". The Children Act 2004[51] effectively provides a statutory definition of immoderate by disallowing this justification for any act of punishment inflicting injuries or effects that amount to wounding, actual bodily harm (ABH), or any act considered "cruelty to persons under sixteen" in violation of the Children and Young Persons Act 1933 and was described at implementation as criminalising "visible bruising"[52] and rendering lesser injuries (comparable to "not serious" common assault) implicitly lawful/defensible. At the time, the Crown Prosecution Service (CPS) produced a charging standard unlawfully asserting the age of the victim may be considered an aggravating factor in deciding if the offence charged would be indefensible serious assault occasioning ABH rather than (implicitly defensible) common assault and erroneousely asserted that any injuries more than "temporary reddening of the skin" or "marks" could be charged as ABH: this had no legal basis and was withdrawn in 2011. Standards now correctly require evidence of injuries that are "serious" and where a "sentence clearly in excess of six months' imprisonment ought to be available"[53] (as legal precedent requires/demands injuries "must, no doubt, be more than merely transient and trifling" now being interpreted as "more than common assault") to warrant an indefensible criminal charge of ABH.[54]

Utilising the unlawful threshold, the courts of England and Wales have convicted parents on the basis their acts amounted to ABH and was therefore unlawful yet have passed sentences less than six months, contrary to the requirement it be more than six months; police and social services also continue to use the long withdrawn assertions of the CPS, leading to many parents or others acting in loco parentis being criminalised (often be police cautions for lesser common assault on a position of guilt to ABH) or investigated for causing minor injuries that did not amount to ABH in law.[55][56]

The total abolition of corporal punishment has been discussed.[57] In a 2004 poll by the advocacy group Children are Unbeatable!, 71% of respondents supported giving children the same protection against battery as adults if it "would not lead to parents being prosecuted for trivial or minor acts of physical punishment".[58] In a 2006 survey, 80% of the population said they believed in smacking, and 73% said that they believed that any ban would cause a sharp deterioration in children's behaviour. Seven out of ten parents said they themselves use corporal punishment.[59] In a 2012 poll conducted by Angus Reid Public Opinion, 63 per cent of Britons voiced opposition to banning parents in the UK from smacking their children.[60]

Scotland

In Scotland, since 2003 it has been unlawful to punish a child using any implement or upon the head (but giving leave to courts to accept such acts if deemed reasonable), and corporal punishment of children under the age of 3 is unlawful. In 2017, the Scottish Government confirmed it will support a member's bill to ban all corporal punishment completely.[61]

Northern Ireland

In Northern Ireland it is unlawful to hit a child upon the head.

United States

Corporal punishment of children by parents is legal to some extent in all 50 states the United States, and is explicitly legal according to the state laws of 49 states (all except Minnesota). Social acceptance is generally high, through allowances made for "moderate physical discipline" (using this or similar language) in most states' laws regarding assault, criminal battery, domestic violence and/or child abuse. Whether an instance of corporal punishment exceeds these bounds is usually decided on a case-by-case basis in family court proceedings.

See also

References

  1. ↑
  2. ↑ "25th Anniversary of the Convention on the Rights of the Child". Human Rights Watch. 17 November 2014.
  3. ↑ "Legal defences for corporal punishment of children derived from English law" (PDF). Global Initiative to End All Corporal Punishment of Children. 10 November 2015.
  4. ↑ https://www.crin.org/en/library/news-archive/chile-proposed-child-abuse-law-falls-short-banning-corporal-punishment
  5. ↑ http://www.endcorporalpunishment.org/news/10/2017/aruba-has-prohibited-all-corporal-punishment-of-children.html
  6. ↑ "Diálogo, premios y penitencias: cómo poner límites sin violencia". El Clarín (Buenos Aires). 17 December 2005. (in Spanish)
  7. ↑ "En Argentina, del golpe a la convivencia". El Clarín (Buenos Aires). 10 February 1999. (in Spanish)
  8. ↑ "Country report for Argentina". Global Initiative to End All Corporal Punishment of Children.
  9. ↑ "Country report for Australia". Global Initiative to End All Corporal Punishment of Children. April 2015.
  10. ↑ See New South Wales Crimes Act (s61AA), Northern Territory Criminal Code Act (s27), Queensland Criminal Code Act 1899 (s280), South Australia Criminal Law Consolidation Act 1935 (s20), Tasmania Criminal Code Act 1924 (s50), Western Australia Criminal Code 1913 (s257) and under common law in Australian Capital Territory and Victoria.
  11. ↑ Weatherup, Malcolm, "Teen beaten over letters", Townsville Bulletin, Queensland, 5 May 2004.
  12. ↑ Tkaczuk Sikora, Natalie, "Courts warn parents", The Herald Sun, Melbourne, 17 November 2005.
  13. ↑ Malpeli, Gareth, "Change smack law: group", The West Australian, Perth, 12 July 2002.
  14. ↑ "Crimes Act 1900—Sect. 61AA". New South Wales Consolidated Acts.
  15. ↑ Eliminating Corporal Punishment: A Human Rights Imperative for Europe's Children. Council of Europe. 1 January 2005 – via Google Books.
  16. ↑ Branch, Legislative Services. "Consolidated federal laws of canada, Criminal Code". Retrieved 16 December 2016.
  17. ↑ "Canadian Foundation for Children, Youth and the Law v. Canada (Attorney General) - SCC Cases (Lexum)". Retrieved 16 December 2016.
  18. ↑ Canadian Press, "Top court upholds spanking law", Toronto Star, 31 January 2004.
  19. ↑ Canadian Law, "The Criminal Law and Managing Children's Behaviour", Department of Justice, 1 December 2011.
  20. ↑ "Truth and Reconciliation offers 94 'calls to action'". CBC News. 15 December 2015.
  21. ↑ "revselsesret - Gyldendal - Den Store Danske". denstoredanske.dk.
  22. ↑ "Revselsesretten - historisk baggrund".
  23. ↑ http://viden.jp.dk/binaries/syddjurs%208%20kl_15801.pdf
  24. ↑ "Kansakoulun perustamisesta 150 vuotta – lukemisen pelättiin laiskistavan". 11 June 2016.
  25. ↑ "CORPORAL PUNISHMENT ARCHIVE". www.corpun.com.
  26. ↑ Heidelberg, Rechtsanwalt Dr. Thomas Fuchs,. "§ 1631 BGB. Inhalt und Grenzen der Personensorge". lexetius.com.
  27. ↑ http://www.altea-europa.org/documentosdaphne2011/legislative-analysis-WS1-report1-germany.pdf
  28. 1 2 "Prohibition of all corporal punishment in Ireland (2015)". Global Initiative to End All Corporal Punishment of Children. Retrieved 21 November 2017.
  29. 1 2 "Children First Bill 2014: Report". Seanad debates. KildareStreet.com. 21 Oct 2015. Retrieved 21 November 2017.
  30. ↑
    • Primary Branch (January 1982). "R.R. 144329 / Circular 9/82 / Re: The Abolition of Corporal Punishment in National Schools" (PDF). Circulars. Department of Education. Retrieved 21 November 2017.
    • Post-Primary Branch (January 1982). "Circular M5/82 / Abolition of Corporal Punishment in Schools in respect of Financial Aid from the Department of Education" (PDF). Circulars. Department of Education. Retrieved 21 November 2017.
  31. ↑
    • "Non-Fatal Offences Against the Person Act, 1997, Section 24". Irish Statute Book. Retrieved 21 November 2017.
    • "Non-Fatal Offences Against the Person Bill, 1997: Second Stage". Seanad Éireann Debates. 7 May 1997. Retrieved 21 November 2017. The use of force by teachers, following the enactment of the Bill, will be governed, as in the case of other people, by the rules set out in sections 18 and 19.
  32. ↑ "Children Act, 2001". Irish Statute Book. §§ 5(1), 201(2)(a). Retrieved 21 November 2017.
  33. 1 2 O'Brien, Carl (2 September 2013). "Renewed pressure for ban on smacking of children Children's groups complained to Council of Europe over 'reasonable chastisement'". The Irish Times. Retrieved 24 September 2013.
  34. ↑ "Written Answers No.9 Corporal Punishment [38705/13]". Dáil debates. 24 September 2013. pp. Vol.813 No.2 p.47. Retrieved 24 September 2013.
  35. ↑
    • O'Brien, Carl (10 Dec 2015). "Ban on smacking children came into force at midnight". The Irish Times. Retrieved 21 November 2017. ;
    • "S.I. No. 555/2015 - Children First Act 2015 (Commencement) Order 2015". Irish Statute Book. Retrieved 21 November 2017. ;
    • "Children First Act 2015, Section 28". Irish Statute Book. Retrieved 21 November 2017.
  36. ↑ "Italy rules out corporal punishment". The Independent.
  37. ↑ "Country report for Italy". Global Initiative to End All Corporal Punishment of Children. May 2015.
  38. ↑ "Ot.prp. nr. 104 (2008-2009)". Regjeringen.no. 19 June 2009.
  39. ↑ Tisdall, Jonathan, "Supreme Court upholds spanking ban" Archived 4 June 2011 at the Wayback Machine., Aftenposten English web desk, Oslo, 30 November 2005.
  40. ↑ "About corporal punishment", The Ombudsman for Children in Norway, 30 September 2008. Retrieved 8 August 2009.
  41. ↑ Brandeggen, Torbjørn (9 April 2010). "Forbudt å klapse barn - Barneloven endret i dag". TV2 Nyhetene (in Norwegian). Retrieved 17 August 2010.
  42. ↑ "The Constitution of the Republic of Poland". www.sejm.gov.pl.
  43. ↑ "Global Progress: South Africa". Global Initiative to End All Corporal Punishment of Children. Retrieved 1 September 2013.
  44. ↑ "New spanking law in the works". IOL News. SAPA. 28 July 2013. Retrieved 1 September 2013.
  45. ↑ "Smacking your child is officially illegal in SA now".
  46. ↑ "Country report for Republic of Korea". Global Initiative to End All Corporal Punishment of Children. Retrieved January 2016.
  47. 1 2 Durrant, Joan E. (1996). "The Swedish Ban on Corporal Punishment: Its History and Effects". Family Violence Against Children: A Challenge for Society. Prevention and Intervention in Childhood and Adolescence. Berlin, New York: Walter De Gruyter Inc. pp. 19–25. ISBN 3-11-014996-6.
  48. ↑ https://resourcecentre.savethechildren.net/sites/default/files/documents/2763_0.pdf
  49. ↑ "Corporal Punishment" (2008). International Encyclopedia of the Social Sciences.
  50. ↑ "By the law of England, a parent [repealled - referred to school teachers] may for the purpose of correcting what is evil in the child inflict moderate and reasonable corporal punishment, always, however, with this condition, that it is moderate and reasonable." Chief Justice Lord Cockburn, CJ in case R v Hopley 2F&F 202 (1860)
  51. ↑ "Children Act 2004". Retrieved 5 April 2014.
  52. ↑ "Smacking ban introduced", The Daily Telegraph, London, 15 January 2005.
  53. ↑ "CPS - Common Assault or ABH?". Retrieved 14 June 2016.
  54. ↑ "Offences against the Person, incorporating the Charging Standard". Retrieved 15 March 2016.
  55. ↑ Example FOI response from Dyfed Powys Police (PDF), "FOI Response", April 2016.
  56. ↑ Children are unbeatable newsletter (PDF), "CAU-Issue 18", April 2016.
  57. ↑ Curtis, Polly, "Smacking law to be reviewed", The Guardian, London, 16 June 2007.
  58. ↑ "Children Are Unbeatable FAQs". Retrieved 12 March 2016.
  59. ↑ Bennett, Rosemary, "Majority of parents admit to smacking children", The Times, London, 20 September 2006. (subscription required)
  60. ↑ Canseco, Mario, "Britons Opposed to Banning Parents from Smacking Their Children", Angus Reid Public Opinion, London, 13 February 2012.
  61. ↑ Cramb, Auslan (19 October 2017). "Smacking to be banned in Scotland after SNP backs legislation" – via www.telegraph.co.uk.
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