Many might be of the opinion that corporal punishment by parents for the purpose of discipline and correction is acceptable. However, it is significant that there is an international move towards abolishing all forms of corporal punishment of children including that which is imposed in the home or by parents. This area of law reform dates as far back as 1979 when Sweden took the lead on this issue and was the first country to abolish all forms of corporal punishment. To date 17 countries have abolished all forms of corporal punishment of children including the imposition of corporal punishment in the home or by parents. These countries are Austria, Croatia, Cyprus, Denmark, Finland, Latvia, Norway, Germany, Italy, Israel, Sweden, Iceland, Ukraine, Bulgaria, Hungary, Belgium and Romania.
It should be noted that various strategies and steps were used to bring about this change in these countries. Some initiated change by firstly abolishing corporal punishment in the public sphere. With regard to corporal punishment in the home, a first step included removing the defence of reasonable chastisement which was available to the parents. This was then followed by a more explicit prohibition being included in civil legislation.
However, it is reported that merely removing the defence of reasonable chastisement (which indirectly has the effect of abolishing corporal punishment in the home) without also simultaneously explicitly prohibiting corporal punishment leads to much confusion amongst professionals, and the public and parents still believing that physical punishment was legal. Therefore, in order bring about real and constructive change, it would be necessary to have an explicit provision stating that corporal punishment in the home is not allowed.
In other countries such as Italy and Israel, corporal punishment in the home was abolished by court decisions when cases involving parental violence against children were brought before the courts.
What follows is a brief summary of how some of these countries have gone about effecting the ban on all forms of corporal punishment.
An explicit prohibition of corporal punishment is found in the Family Act of 1998 that came into effect on 1 January 1999. The specific provision provides that “parents and other family members must not subject the child to degrading treatment, mental or physical punishment and abuse". Further provisions include that a parent is obliged to protect the child from degrading treatment and physical punishment administered by others, that every citizen is obliged to inform a social welfare centre about any infringement of children's rights, especially forms of violence, and prohibits the use of violence by an adult against a spouse or another family member. Provision is also made for children to approach competent bodies if they believe their rights have been infringed in order to have their case examined and appropriate measures taken.
In 1994, the Republic of Cyprus banned the physical punishment of children with legislation that addresses the whole spectrum of family violence. The Violence in the Family (Prevention and Protection of Victims) Law of 1994 provides that “any unlawful act or controlling behaviour which results in direct actual physical, sexual or psychological injury to any member of the family [is prohibited]". This Act also recommends the establishment of an Advisory Committee on family violence; provides for the appointment of family counsellors to offer support and guidance; empowers the court to issue contact orders and removal of a child at risk of harm in a household, and provides for the establishment of shelters for victims of abuse. This piece of legislation made any violence in the context of the family illegal and included sanctions relating to the psychological damage caused by witnessing violence in the family as it also provides that it is an offence for violence to occur in the presence of a child.
In Denmark, the Parental Custody and Care Act of 1997 explicitly prohibits the corporal punishment of children. It provides that “the child has the right to care and security. It shall be treated with respect for its personality and may not be subjected to corporal punishment or any other offensive treatment." This provision is regarded by all as a complete prohibition of physical punishment. However, there were various stages of law reform that preceded this abolishment. These included the abolishment of men's rights to beat their wives and servants in 1920; ending corporal punishment of prisoners in 1922; ending corporal punishment in schools in 1967 and a provision written into the Custody and Care Act in 1985 stating that parents had a duty to protect children against physical and psychological violence.
An explicit prohibition of the physical punishment of children is found in the Child Custody and Rights of Access Act of 1983. This piece of legislation forms part of family law and provides that “a child shall be brought up in a spirit of understanding, security and love. He shall not be subdued, corporally punished or otherwise humiliated. The growth of a child towards independence, responsibility and adulthood shall be supported and encouraged". If parents violate the ban in any way that would constitute a criminal offence if committed against an adult, they are liable for prosecution for assault under the Criminal Code. There were various stages of law reform that preceded this ban. These included the abolishment of corporal punishment in schools in 1914; the removal of the defence of 'lawful chastisement' from the Criminal Code in 1969 and the Child Welfare Act of 1983 which radically overhauled the law dating from 1937 and emphasised primary prevention and non-institutional social care.
An explicit prohibition of physical punishment in the context of children's rights was introduced through an amendment to the civil law in 2000. The relevant provision provides that “children have a right to be brought up without the use of force. Physical punishment, the causing of psychological harm and other degrading measures are forbidden". Stages of law reform which preceded this amendment in 2000 included legislation against the right of men to beat their wives and servants; legislation prohibiting the use of corporal punishment in schools and residential care in the 1970s; a ban on degrading methods of child-rearing in 1980 and a ban on degrading methods of discipline including physical and psychological abuse in 1998.
In May 1996, the Supreme Court (The Court of Cassation) declared that parental use of physical punishment to educate or 'correct' their children was illegal. In this instance, a father was prosecuted for often using violence against his 10 year old daughter. The father claimed, in his defence, that he was not guilty of maltreatment since he had only intended to correct his child's behaviour. The Judge rejected this defence and stated that, on the basis of the Italian Constitution, statutes on maltreatment and international law, parents are forbidden to use any violence in the upbringing of their children. He stated that the “use of violence for educational purposes can no longer be considered lawful".
In January 2000, the Israeli Supreme Court effectively banned all parental corporal punishment in the landmark judgment of Natalie Bako vs The State. In this matter, the appellant (a mother) was convicted and sentenced for the abuse and assault of a minor. She appealed to the Supreme Court against both convictions arguing that she had used acceptable disciplinary measures ('reasonable chastisement') against her children. The Court held that the appellant's defence that the acts were done for the good of her children contradicted the fundamental values of society regarding human dignity and the integrity of the body and mind of the minor. The Court also stated that “[physical punishment] injures [the child's] body, feelings, dignity and proper development. Such punishment distances us from our goal of a society free of violence. Accordingly, let it be known that in our society, parents are now forbidden to make use of corporal punishment or methods that demean and humiliate the child as an educational system". Following this judgment, the defence of 'reasonable chastisement' was removed from Israeli legislation.
Sweden was the first country to enact an explicit ban on the physical punishment of children as early as 1979. In 1979 a provision was added to the new Children and Parents' Code which read: “the parent or guardian shall exercise necessary supervision in accordance with the child's age and other circumstances. The child may not be subjected to physical punishment or any other injurious or humiliating treatment". In 1983 the Children and Parents' Code was extended to include a more positive statement of children's rights and the relevant provision now reads: “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". Prior to this, there were various stages of law reform which included the establishment of the Children and Parents' Code in 1949; the removal of the legal defence for physical punishment of children from the Penal Code in 1957 (however, this defence was retained in the civil code); the banning of corporal punishment in all schools and childcare settings in 1962, and the removal of a provision in the civil code allowing 'petty reprimands' in 1966 (the result being that smacking now effectively constituted assault).
If one considers how widely the Convention on the Rights of the Child has been ratified, it is surprising and a matter of concern that only a handful of countries has actually prohibited corporal punishment by parents. Noteworthy, none of the countries listed above are African and it is perhaps high time that a country from our continent joined this distinguished list.
This feature: Prohibition of corporal punishment: an international overview. Article 19, Volume 1 Number 3, December 2005, pp.10-11