The United Nations
The following UN human rights Treaty Bodies have recommended that the UK legally prohibit all corporal punishment of children, including removing any existing defences such as “reasonable punishment” or “justifiable assault”:
The Committee on the Rights of the Child: three times, in 1995, 2002 and 2008. In 2002, the Committee stated:
“The Committee is of the opinion that the Government’s proposals to limit rather than to remove the ‘reasonable chastisement’ defence do not comply with the principles and provisions of the Convention and the aforementioned recommendations, particularly since they constitute a serious violation of the dignity of the child (see similar observations of the of the Committee on Economic, Social and Cultural Rights, E/C.12/1/Add.79, para. 36). Moreover, they suggest that some forms of corporal punishment are acceptable, thereby undermining educational measures to promote positive and non-violent discipline.”[1]
In 2008, the Committee stated:
“The Committee, while noting amendments to legislation in England, Wales, Scotland and Northern Ireland which restrict the application of the defence of ‘reasonable chastisement’, is concerned that this defence has not been removed. The Committee welcomes the commitment of the National Assembly in Wales to prohibiting all corporal punishment in the home, but notes that under the terms of devolution it is not possible for the Assembly to enact the necessary legislation. The Committee is concerned at the failure of State party to explicitly prohibit all corporal punishment in the home and emphasises its view that the existence of any defence in cases of corporal punishment of children does not comply with the principles and provisions of the Convention, since it would suggest that some forms of corporal punishment are acceptable.”[2]
The Committee’s General Comment on the right of the child to protection from corporal punishment and other cruel or degrading forms of punishment states that corporal punishment is invariably degrading and notes:
“Before the adoption of the Convention on the Rights of the Child, the International Bill of Human Rights - the Universal Declaration and the two International Covenants, on Civil and Political Rights and on Economic, Social and Cultural Rights - upheld ‘everyone’s’ right to respect for his/her human dignity and physical integrity and to equal protection under the law. In asserting States’ obligation to prohibit and eliminate all corporal punishment and all other cruel or degrading forms of punishment, the Committee notes that the Convention on the Rights of the Child builds on this foundation. The dignity of each and every individual is the fundamental guiding principle of international human rights law…
The Committee emphasizes that eliminating violent and humiliating punishment of children, through law reform and other necessary measures, is an immediate and unqualified obligation of States parties..”[3]
The Committee on Economic, Social and Cultural Rights: twice, in 2002 and 2009. In 2002 the Committee recommended prohibition, “Given the principle of the dignity of the individual, which provides the foundation for international human rights law…”; it repeated its recommendation in 2009.[4]
The Committee on the Elimination of Discrimination against Women: In 2008 the Committee recommended prohibition, stating: “... The Committee also notes with concern that corporal punishment is lawful in the home and constitutes a form of violence against children, including the girl child”.[5] This recommendtion was repeated by the Committee in 2013.
The Committee against Torture The UN Committee Against Torture called for complete legal abolition of physical punishment in its fifth concluding observations on the UK, "The Committee recommends that the State party prohibits corporal punishment of children in all settings in Metropolitan territory, Crown Dependencies and OverseasTerritories, repealing all legal defences currently in place, and further promote positive non-violent forms of discipline via public campaigns as an alternative to corporal punishment”
UN High Commissioners for Human Rights
Louise Arbour, former United Nations High Commissioner for Human Rights, states:
“Violence against children is a violation of their human rights, a disturbing reality of our societies… No such thing as a ‘reasonable’ level of violence is acceptable. Legalised violence against children in one context risks tolerance of violence against children generally.”[6]
Her predecessor as High Commissioner, Mary Robinson, said:
“I am particularly sensitive to the protection of the human rights of children, and the issue of corporal punishment is one of great importance to child rights… 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.”
The 2006 report of the UN Secretary-General’s Study on Violence against Children calls on all countries to prohibit all violence against children, including all corporal punishment, including in the home, as a matter of priority.[7] Professor Paulo Sérgio Pinheiro, the Independent Expert appointed by the UN Secretary-General to lead the Study, wrote:
“The Study should mark a turning point – an end to adult justification of violence against children, whether accepted as ‘tradition’ or disguised as ‘discipline’. There can be no compromise in challenging violence against children. Children’s uniqueness – their potential and vulnerability, their dependence on adults – makes it imperative that they have more, not less, protection.”
Europe
In 2005 and again in 2012, the European Committee of Social Rights reviewing compliance with Article 17 of the European Social Charter, found that the UK was in breach because it had not prohibited all corporal punishment in the family.[8] The Committee’s General Observation in 2004 makes the Committee’s position clear:
“… the Committee considers that Article 17 requires a prohibition in legislation against any form of violence against children, whether at school, in other institutions, in their home or elsewhere. It furthermore considers that any other form of degrading punishment or treatment of children must be prohibited in legislation and combined with adequate sanctions in penal or civil law.”[9]
In 2008, the Commissioner for Human Rights of the Council of Europe, following his visits to the UK in February and March/April 2008, stated in a formal Memorandum to the UK Government:
“The Commissioner is very concerned about section 58 of the Children Act 2004 in England and Wales, which reflects the availability of the ‘reasonable punishment’ defence for parents charged with common assault, removing use of the defence from those charged with more serious assaults (actual and grievous bodily harm, wounding, etc).... The Commissioner emphasises that laws allowing ... ‘reasonable punishments’ on children are not compliant with international human rights standards. That children, uniquely, should have less protection under the criminal law from assault is additionally discriminatory and unimaginable, given children’s obvious special vulnerability.”[10]
In the same year the Commissioner produced an issues paper on Children and corporal punishment:
“Corporal punishment of children often becomes inhuman or degrading, and it always violates their physical integrity, demonstrates disrespect for human dignity and undermines self-esteem. Furthermore, the existence of special exceptions for violence against children in otherwise universally applicable laws against assault breaches the principle of equal protection under the law.
The invention of concepts such as ‘reasonable chastisement’ and ‘lawful correction’ in the law arises from the perception of children as the property of their parents. This is the modern equivalent of laws in force a century or two ago allowing masters to beat their slaves or servants, and husbands to beat their wives. Such ‘rights’ are based on the power of the stronger over the weaker and are upheld by means of violence and humiliation.
Children have had to wait until last to be given equal legal protection from deliberate assaults – a protection the rest of us take for granted. It is extraordinary that children, whose developmental state and small size is acknowledged to make them particularly vulnerable to physical and psychological injury, should be singled out for less protection from assaults on their fragile bodies, minds and dignity.”
Also in 2008, the Council of Europe launched a Europe-wide campaign for prohibition of all physical punishment and the promotion of positive non-violent parenting in its 47 member states, which it wants to be “a continent free of corporal punishment”.[11]This had been the recommendation of the Parliamentary Assembly of the Council of Europe in 2004:
“The Assembly considers that any corporal punishment of children is in breach of their fundamental rights to human dignity and physical integrity. The fact that such corporal punishment is still lawful in certain member states violates their equally fundamental right to the same legal protection as adults. Striking a human being is prohibited in European society and children are human beings. The social and legal acceptance of corporal punishment of children must be ended.”[12]
The European Court of Human Rights has progressively condemned corporal punishment of children, in a series of judgments against the UK since the 1970s.[13] In 1998 the Courtruled in the first case concerning parental corporal punishment, A v UK, that a nine year-old boy had suffered a violation of his rights under Article 3 of the European Convention on Human Rights (protection from inhuman and degrading punishment). A British jury had acquitted his step-father, who had beaten him severely with a cane; the stepfather had used the defence of “reasonable chastisement”.[14] As a result of this case, the Government introduced the new defence of “reasonable punishment” to common assaults of children in Section 58 of the Children Act 2004. This ended use of the defence by those charged with actual bodily harm or more serious assaults on children. While this ensured that the step-father in the A v UK case would have been convicted (since he was charged with actual bodily harm), it took over ten years before the Council of Europe’s Committee of Ministers, responsible for supervising the execution of judgments of the European Court, accepted that given the particular circumstances of this case, the UK’s action was adequate. Many of the questions raised by representatives of other European countries during the supervision – for example, how effectively the new law prosecuted all cases of severe punishment or how effectively it deterred such punishments from occurring in the first place – were inadequately answered by the UK government. The Secretariat to the Committee of Ministers noted:
“Even in the A v. UK case, the European Court has not explicitly stated that every incident of physical punishment of a child violates Article 3… However, states have an obligation to take general measures to prevent further similar violations. In this context it should be underlined that the European Court has repeatedly stressed that the Convention is a living instrument and that in interpreting its provisions, the European Court must have regard to the changing conditions within the respondent state and within Contracting States generally and respond to any evolving convergence as to the standards to be achieved. In this respect, the ratification of the UN Convention on the Rights of the Child by all member states of the Council of Europe (including the United Kingdom), which requires states to protect children from all forms of physical or mental violence (Art. 19) as well as the ratification by the majority of these same states of the European Social Charter, Article 17 of which requires states to prohibit the corporal punishment of children and the evolution reflected by other instruments, documents and initiatives within the Organisation and at UN level might suggest an evolving convergence.” [15]
[1] Committee on the Rights of the Child, concluding observations on the UK’s second report, 9 October 2002, CRC/C/15.Add.188
[2] Committee on the Rights of the Child, concluding observations on the UK’s third and fourth report, 3 October 2008, CRC/C/GBR/CO/4
[3] Committee on the Rights of the Child, General Comment No. 8 2006, CRC/C/GC/8, paras. 16 and 22; see also definition in para. 11
[4] Committee on Economic, Social and Cultural Rights, concluding observations on the UK’s fourth report under the International Covenant, 5 June 2002, E/C.12/1/Add.79; also see, E/C.12/GBR/CO/5, 22 May 2009
[5] Committee on the Elimination of Discrimination against Women, concluding observations on the UK’s fifth/sixth report under CEDAW, 18 July 2008, CEDAW/C/GBR/CO/6
[6] ref
[7] Report of the Independent Expert for the United Nations Study on Violence against Children, Paulo Sérgio Pinheiro, A/61/299, paras. 97 and 116; see www.unsvac.org
[8] European Committee of Social Rights, July 2005, Conclusions XVII-2
[9] Ref needed
[10] Memorandum by Thomas Hammarberg, Commissioner for Human Rights of the Council of Europe, following his visits to the United Kingdom, 5-8 February and 31 March-2 April 2008, CommDH(2008)28, Strasbourg, 9 October 2008
[12] Recommendation 1666/2004 Parliamentary Assembly of the Council of Europe.
[13] Council of Europe Eliminating corporal punishment: a human rights imperative for Europe’s children 2008
[14] A v United Kingdom, No. 25599/94, judgement 23.09.98
[15] A. against the United Kingdom Judgment of 23 September 1998, Revised Memorandum of August 28 2008 (“Memorandum”) prepared by the Department for the Execution of Judgments of the European Court of Human Rights in the light of the developments since the adoption by the Committee of Ministers of Interim Resolution ResDH(2004)39 on 2 June 2004; CM/Inf/DH(2008)34; paragraphs 75-76