The movement to end all legal approval of corporal punishment by parents began in Sweden in 1949 and culminated in its 1979 “anti-spanking” law. This law was enacted to make it clear that corporal punishment by parents was not allowed under Swedish law. It was followed by an extensive educational campaign to bring this to the attention of the public.
1949 Civil Parenthood and Guardianship Code (comparable to our provincial child protection legislation) allowing parents to ”punish” children amended to change “punish” to “reprimand”
1957 Defence to assault similar to s.43 deleted from Penal Code
1966 Right to “reprimand” deleted from Civil Code
1979 Parenthood and Guardianship Code amended to state: A child may not be subjected to corporal punishment or other injurious or humiliating treatment
Swedish law on assault similar to our law
Our government argues that ending s. 43 would go far beyond reforms in Sweden. It points out that a minor open-handed spanking that does not cause any pain is not an assault under the Swedish Penal Code and would therefore not be prosecuted. This is correct, but it ignores the fact that neither would such a minor spanking be prosecuted under our Criminal Code. The de minimus rule against prosecution for trivial breaches of the law operates to prevent such prosecutions. In practice, removing s. 43 would give Canadian children the same protection that Swedish children have had since 1957 – and the same protection enjoyed by adults in both countries.
Research on effects of Swedish reform
Dr. Joan Durrant, University of Winnipeg, has done extensive research on corporal punishment in Sweden. She found the following effects of the Swedish law reforms:
- deaths from abuse diminished and are now extremely rare
- social service intervention became more preventive
- identification of children at risk increased
- belief in corporal punishment as an appropriate method of discipline decreased from 53% in 1965 to 11% in 1996
April/12 More NZ parents rule out smacking children
A New Zealand survey reported in April/12 indicates there has been an increase in the number of parents who choose not to smack their children, in line with the controversial “anti-smacking law” implemented in 2007. The Conservative lobby group, Family First, commissioned the survey from Curia Market Research and is based on responses from 500 parents of children aged less than 12.
It found that 44 % reported never smacking their children since the 2007 legislative change to remove the defence of “reasonable … force” for parents who hit their children for correction; 29% said they had smacked rarely since the change; 21% said occasionally; 1 % said they frequently smacked their children and 5% were unsure or refused to answer.
“It suggests to me, said Children’s Commissioner Dr. Russell Wills, a paediatrician, that large numbers of New Zealand parents are avoiding hitting their children and that’s consistent with my experience clinically. “Since the law was changed there has been a sharp increase in parents self-reporting to social services for help with their parenting. There has been a substantial increase in parents attending parenting courses that provide alternatives to hitting and are much more effective. I think this shows that New Zealand parents understand that hitting is an ineffective way of disciplining children and they are looking for alternatives.”
Family First national director, Bob McCoskrie, highlighted a police report mostly covering the first half of last year which said officers had attended 456 child assault events, including 18 involving “smacking” and 58 of “minor acts of physical discipline”. The events in the latter two categories resulted in 10 prosecutions, one for smacking a child at least five times with an open hand on the buttocks, with no physical injury. The remaining nine prosecutions involved slaps to the head. The outcomes were: suspended sentence, 3; nine months’ supervision, 1; discharged without conviction, 2; withdrawn, 2; not guilty, 1; not sentenced by the time of the report, 1.
June 2010 NZ police continue to review enforcement of corporal punishment ban
NZ police submit 7th review of their response to incidents of alleged assaults on children following the 2007 repeal of the law allowing corporal punishment. The review covers Dec/09 to June 2010 and finds an increase in the number of events attended by police during this period and that this is consistent with reduced tolerance and increased reporting of child assault events. 416 child assault events were considered for the review: 25 were identified as ‘smacking’ and 38 as ‘minor acts of physical discipline. The other 353 were other child assaults, not specified, or no offence disclosed. Of the 25 ‘smacking’ events, 1 resulted in prosecution, 13 in warnings and 11 in other or no further action taken. Of the 38 ‘minor acts of physical discipline’, 2 resulted in prosecution, 12 in warnings and 24 in other or no further action taken. Click for police review.
Mar 5/10 Latest NZ police report on ‘smacking’ ban finds no problems
Barnardos New Zealand – In Dec/09, the New Zealand PM invited police to continue monitoring the results of the 2007 ban on corporal punishment for a further 3 yrs. The police report for the latest period (June to Dec/09) shows an increase in the number of child assault events attended and finds this consistent with reduced tolerance and increased reporting of assaults on children. There were 367 events attended and 2 prosecuted but both were resolved by diversion. One was a ‘smacking’ in which a red welt was still visible after 3 days and the other was for a ‘minor acts of physical discipline’ in which parent admitted stress and frustration. Click for police review.
Dec 8/09 Leading opponent of NZ smacking ban now says ban is working well
stuff.co.nz – A leading opponent of New Zealand’s smacking ban says parents “can relax” about the new law. Television psychologist Dr. Nigel Latta said none of the cases highlighted by the pro-smacking lobby to bolster their argument that good parents were being made into criminals for smacking stood up to scrutiny. His finding, after a three-month review by him, Police Commissioner and head of the Social Development Ministry, found the truth often differed markedly from what parents told the lobby group, and in every case the police and protection response was appropriate. “In all of the case studies that I reviewed, it was clear that there were other aggravating features involved,” he said. This has firmed the Government’s position that there is no need to change the law despite a referendum in favour of change earlier this year and the continuing campaign against the law by groups like Family First.
Dec 1/09 New Zealand report finds no evidence of unnecessary state intervention
The Report to the Minister of Social Development by Peter Hughes, Chief Executive of the Ministry, is mandated by the act that banned corporal punishment and is based on a review of statistical data from NZ Police and Child, Youth and Family. The Report finds no evidence that parents are being subjected to unnecessary state intervention for occasionally lightly smacking their children but notes that the possibility of unnecessary intervention for a light smack cannot be conclusively discounted. Click for Report
Nov/09 Pro-spankers parade in New Zealand but govt stands firm on ban
Prime Minister John Key and the Labour opposition appear to be staying firm in their support of the anti-smacking legislation they jointly supported in 2007, despite continuing protests against the bill. Child, Youth and Family Services reports about 13,000 investigations of child abuse each year. The former Children’s Commissioner Cindy Kiro says the true rate is likely to be much higher.
Aug 25/09 Final result of citizen initiated referendum on smacking ban
New Zealand Ministry of Justice – The final result of the referendum is that 56% of eligible voters voted, 87% of whom responded No and 12% Yes.
Aug 21/09 NZ referendum results not likely to change anti-smacking law
BBC News – The referendum question was “Should a smack as part of good parental correction be a criminal offence in New Zealand”. Critics of the referendum, including the Prime Minister, said the question was loaded and ambiguous. The referendum is non-binding and Prime Minister John Key has said he will not change the existing law but would put forth some proposals “to give parents added comfort that the law is working.” The ban on smacking was brought in two years ago to try to lower the country’s high rate of child abuse: the third-worst of OECD countries. The referendum provoked heated debate and the postal vote – at a cost of $6.1m – is considered by many to have been a waste of time and money.
Aug 12/09 Mainstream New Zealand churches back smacking ban
New Zealand Herald – The heads of the Anglican and Methodist churches say the current law, which bans the use of force against children for “correction”, is working well and should not be changed. The Catholic church aid agency, Caritas recommended a “Yes” vote on the basis that the current law was close to the compromise which the bishops sought in 2007. “The Catholic bishops have clearly recognized in several statements now the importance of facing up to our responsibility to better protect children,” said a Caritas spokeswoman.
June 16/09 Voting on New Zealand referendum on corporal punishment ban
Dompost.co.nz – The citizen initiated non-binding referendum asks: ”Should a smack as part of good parental correction be a criminal offence in New Zealand?” and will be voted on between July 31 and Aug 31. New Zealand’s PM says the question “could have been written by Dr Seuss – this isn’t Green Eggs and Ham, this is yes means no and no means yes, but we’re all meant to understand what the referendum means. I think it’s ridiculous myself.” He said he is satisfied the law is working and that stricter rules may be necessary for future referenda questions. Labour leader, Phil Goff, said the question was badly worded and “absolutely” the wrong question. The leader of the Maori Party said the referendum was a waste of money and its $9 million cost could have instead been spent on helping families.
Dec 19/08 Third NZ police report on effect of corporal punishment ban
Scoop News – This third police review covers 6 months from April to Oct/08 and confirms that the impact on police activity remains minimal. Police attended a total of 258 child assault events, of which nine were classified as “smacking” and 49 as “minor acts of physical discipline”. Of the nine “smacking” and 49 “minor acts of physical discipline”, 40 were referred to either Child Youth and Family or an inter-agency case management meeting. One smacking event was prosecuted, but subsequently withdrawn when the primary witness declined to give evidence. There were 4 prosecutions of “minor acts of physical discipline”; 3 resulting in convictions. Police monitoring of the amendment will continue until June 2009.
Nov 19/08 ‘A referendum of no consequence’ in August 2009
In an opinion piece by Simon Cunliffe, Assistant Editor, Otago Daily Times, on the amendment to New Zealand’s Crimes Act that ended the defence to assaulting children for correction, he writes that in Aug/09 there will be a referendum on smacking, but wonders if the whole issue won’t simply fade away. It will be a non-binding referendum on this law change passed in Parliament by a whopping 113 to 7 votes. He writes that even though a government has changed there is little to indicate an appetite for turning back this particular clock. The National Party is looking to be in government for the long haul and if there is one lesson they will take from Labour’s demise, it is the danger of fighting unnecessary battles. They have enough on their plates, and in the face of international trends, and New Zealand’s unenviable record on domestic violence and child abuse, he guesses that the National-led Government will politely ignore whatever result the referendum throws up. The present PM, John Key, he adds, will not want to be stigmatized as the PM who made it legal to beat defenceless children.
Nov 13/08 NZ Children’s Commissioner reports attitudes to ‘smacking’ ban
New Zealand’s Children’s Commissioner issues a report on a survey of public attitudes to New Zealand’s ‘smacking’ ban a year after it came into force. In it, a representative sample of adults was asked whether children should have the same protection from assault as adults. 89 % agreed that they should. The majority was aware of the change in the law and that it is illegal to hit children, but only a minority understood the actual provisions of the law. 43% clearly supported the new law, 28% were opposed, and the others were neutral. More effort is needed to improve understanding of the law and of positive parenting practices. Click for Report
Nov 10/08 Labour defeat in New Zealand could affect ‘smacking’ ban
John Key, leader of NZ National Party, defeats Helen Clark’s Labour government after 9 years in office and is now the new PM. Under Labour, a private member’s bill repealed a NZ law similar to our s. 43. In a Nov 2/08 article in NZ’s Star-Times, the new PM is reported as having told a ‘Family First’ forum that he will consider changing the ban if a referendum shows strong opposition to it. But on other occasions has said he would only reverse the ban if there were compelling evidence that it was ‘not working’. The referendum is expected to be held in 2009.
Nov 1/08 Public ed campaign needed on New Zealand ‘smacking’ ban
The Press – Research on public understanding of NZ’s ban on ‘smacking’ children, carried out by the Otago University Children’s Issues Centre, found that 70% of parents who are against the ban do not understand the new law. There seems to have been timidity and avoidance of objective information about the ban, the article states, perhaps because the government is nervous about the reaction from ‘extremely well-funded and powerful religious Right groups to any public information’. It concludes that the message that physical punishment in not a good idea is getting out to parents but there is a ‘massive need for more information and education’ about the change in the law.
July 29/08 Canadian professor lauds NZ ban on corporal punishment
Otago Daily Times, New Zealand – University of Manitoba Associate Prof, Joan Durrant, says New Zealand is a world leader in eliminating violence against children and more countries should follow its “courageous move”. Speaking at the Children’s Issues Centre national seminar in Dunedin, NZ, Prof Durrant said other British countries had focused on the protection of adults rather than the protection of children. New Zealand does not attempt to define “reasonable” corporal punishment. Instead, it prohibits it. In Canada, we have not yet made the message clear. Professor Durrant is a children’s clinical psychologist.
June 27/08 Referendum should proceed to show diehards wrong
The Press: Editorial states: Having lost the reasoned argument and now shown to be overheated about how the law might be applied, the smacking campaigners remain undeterred. Now that it is in force and the predictions of dire consequences have been shown to be false, the case for it has become even stronger. The referendum should be taken as an opportunity to show the diehards for the reactionaries they are.
June 24/08 Referendum on NZ ‘smacking’ ban not likely this year
EPOCH NZ – Campaigners to reverse the ban on corporal punishment hand in their second attempt at a petition to force a referendum on the issue. It shows more than 390,000 signatures. But Prime Minister Helen Clark indicated a referendum was unlikely to be held at this year’s election, even if campaigners had enough signatures on their petition, because of the organization it would take to stage the referendum. “Just in terms of sheer organization, she said, I do not think it is possible.”
June 23/08 New Zealand police report on effect of corporal punishment ban
EPOCH, NZ – During the first 3- month period of the current police review of the effect of NZ’s recent ban on cp, police reported an increase in the number of smacking events attended. During the second 3-month period, the number decreased to levels similar to pre-enactment levels. Police will continue to carry out six monthly comparisons from the next review period.
2008 New book on New Zealand’s ban on physical punishment of children
This excellent new paperback traces New Zealand’s successful struggle to end legal approval of physical punishment of children. Written by 3 principle activists who spearheaded this movement for legal reform and published by Save the Children New Zealand, it is a clear, readable and useful account of the efforts and compromises made by all parties involved in passing the bill banning corporal punishment. We highly recommend it to everyone concerned about s. 43. See Research chapter for more information and click Crimes Amendment Act for bill as amended and passed May 16/07.
March 7/08 NZ father to stand trial under new ban on corporal punishment
Nelson Mail – In hearings before the trial of the father, Rowan Flynn, a woman who shared a flat with him gives further evidence of his assaults on his 11-year-old son. These assaults included repeated hitting with a stick. The father had previously told the Nelson Mail that he believed it was his right as a parent to ‘smack’ his son. See Dec 7/07 item below for other information.
Feb 23/08 New Zealand petition goes to parliament for certification
Radio New Zealand – There are over 320,000 signatures on a NZ petition to reinstate the law that allows hitting children for the purpose of discipline; a law that was repealed last June. The petition is with the clerk of parliament and will take about 2 months to certify. The government and its coalition partner, the National Party, say the new law is working well and see no evidence showing a need to reverse the June decision. The proper time to review it, they believe, is after 2 years as provided for in the legislation.
There is also a petition for a referendum on a second question (see Jan 27/08 item below). Neither question is objective because the first assumes that smacking is part of ‘good’ parental correction and the second assumes that ‘family breakdown’ (undefined) is a cause of child abuse. The timing of the referenda is uncertain but they may be held during the general election later this year.
Jan 27/08 Referendum likely on New Zealand ‘smacking’ ban
Glisborne Herald, NZ – Since 1993 New Zealand has allowed citizen-initiated but non-binding referenda if petitioned by 10% of registered electors. A petition calling for a referendum on the ‘smacking’ ban proposes two questions: ‘Should a smack as part of good parental correction be a criminal offence in New Zealand?’ and ‘Should the government give urgent priority to understanding and addressing the wider causes of family breakdown, family violence and child abuse in New Zealand?’ The first question is put forward by a Focus on the Family official and the second by a former opposition MP. A Jan 27/08 editorial in stuff.co.nz characterizes the questions as ‘loaded and tendentious’ and comments that this ‘shows the trouble with referenda. Asking simple-minded and loaded questions about emotional issues is not the best way to find sensible policies.’
Dec 20/07 NZ police review their approach to ‘smacking’ ban
Deputy Police Commissioner, New Zealand – The review finds that during the 3 months since NZ banned corporal punishment, there was no increase in the number of smacking events police attended. Claims that the repeal of the reasonable force defence under s. 59 of the Crimes Act would lead to prosecution of parents and removal of children from home for minor acts of physical discipline have proved unfounded, said the Deputy Commissioner. ‘While this is only a 3 month snapshot, I am confident that police are taking the same common sense approach to these events as we always have, with officers using their discretion to ensure the appropriate action is taken’.
Of the 15 child assault events involving ‘smacking’ and ‘minor acts of physical discipline’, 2 were referred to Police Family Violence Coordinators, 3 to Child, Youth and Family, 3 to inter-agency Case Management meetings for advice, 1 to family support, and 7 did not specify any referral. Click here for full review.
Dec/07 Two assault prosecutions since repeal of NZ ‘reasonable force’ defence
Since repeal of s. 59 of the New Zealand Crimes Act – a defence to assault on a child similar to our s. 43 – 2 assaults on children by parents have been prosecuted. In the Nov. case, the father pled guilty and was given a 9-month supervision order requiring attendance at parenting and anger management classes. In the 2nd, the father has pled not guilty and says he is prepared to go to jail rather than give up what he sees as his Christian duty to ‘smack’ his son for discipline. Both prosecutions have been strongly supported by editorial comment: See The Press and Herald items below.
Dec 7/07 New Zealand father pleads not guilty in 2nd test of NZ law reform
Nelson Mail – A father, Rowan Flynn, is charged with 2 counts of assault on 11-year-old son by hitting him 5 times on the bottom with a wooden spoon and for ‘clipping’ him on the face about a week later. The son called police. The 52-year-old father says the boy was disobedient and that he believes very strongly in ‘smacking’ as a form of discipline. ‘I’m a Christian and believe it’s what I’ve been commanded to do.’ The son had been living with him after the parents separated.
Nov 27/07 New Zealand Press editorial supports smacking conviction
NZ TV3 News –Hitting back: The pro-smacking lobby continues to use hysteria and selective facts to drag the country back to a place which belongs in the past, says The Press, in this editorial criticism of the NZ pro-smacking lobby. Click here for editorial.
Nov 26/07 New Zealand Herald editorial supports smacking conviction
NZ Herald – Smacking law is working and critics need to accept the fact: Good parents do not bruise kids: The first conviction under the Crimes (Substituted Section 59) Amendment Act 2007, says the editorial, has probably realized the worst fear of those who opposed it: that, far from bringing an end to orderly family life as we know it, the law would be applied with wisdom and common sense and people would be stopped doing something they ought not do.
Nov 22/07 New Zealand father pleads guilty in first test of NZ law reform
NZ TV3 News – The first parent prosecuted after New Zealand removed its ‘reasonable force’ defence pleads guilty to assaulting his 8-year-old son and is given a 9-month supervision order requiring parenting and anger management classes. The father became angry after being told his son had caused problems at school, grabbed him by the shoulder, flipped him over his knee and ‘smacked’ him on the bottom 3 times with his open hand. The assault left bruises and were reported by the man’s wife.
May 16/07 Bill to repeal corporal punishment defence passes with amendments
Section 59of the New Zealand Crimes Actis a defence to assault on a child similar to our s. 43. The relevant part of the Act is as follows:
Every parent of a child and every person in the place of the parent of a child is justified in using force by way of correction towards the child, if the force used is reasonable in the circumstances.
A Private Members’ Bill to repeal section 59 was introduced in June//05 by Sue Bradford, a member of New Zealand’s Green Party. With Labour government support, and despite objections from the opposition conservative National Party, the bill was promptly referred to a Select Committee for study. Written submissions from 1718 interested groups and individuals were filed, 207 oral presentations heard in four cities, newspaper ads published and public demonstrations held for and against the bill.
The bill passed May16/07 with amendments that overcame objections by opposition parties. The vote was 113-7 and the new Act will come into force when it receives Royal assent in June. Unlike Canada where law enforcement is a provincial matter, New Zealand is a unitary state and its national police make decisions on enforcement and prosecution. The government and opposition were therefore able to agree on an amendment affirming that police have discretion not to prosecute complaints of minor force. This was a proposal put forward by the leader of one of the smaller opposition parties two weeks before the final vote and subsequently agreed to by leaders of the government and National Party. It was this agreement that saved the bill from defeat.
The title of the new Act is the ‘Crimes (Substituted Section 59) Amendment Act.
The amendments under the new section 59 now headed Parental Control are as follows:
The purpose of the Act is to amend s. 59 to make ‘better provision for children to live in a safe and secure environment free from violence by abolishing the use of parental force for the purpose of correction’.
Every parent and person in place of a parent is justified in using force if the force is reasonable and for the purpose of:
- preventing or minimizing harm to the child or another person,
- preventing the child from engaging in conduct that is a criminal offence,
- preventing the child from engaging in offensive or disruptive behaviour, or
- performing normal daily tasks incidental to good care and parenting.
- to avoid doubt, it is affirmed that police have discretion not to prosecute complaints where the force used is so inconsequential that there is no public interest in prosecuting.
- the act must be monitored and the Minister advised on its effects and whether its purpose is being achieved.
A National Party amendment that aimed to define the kind of ‘smack’ that would be legal was defeated.
Opponents of Bradford’s bill targeted it as ‘social engineering’ and a ‘gross intrusion by the nanny state’ that would ‘turn good parents into criminals’. Supporters countered that the bill was being seriously misrepresented. Some Christian groups claimed that parents had a religious duty to use a ‘stiff, flexible rod’ for discipline. The Anglican Bishops of New Zealand issued a public statement supporting the bill.
Much of the New Zealand press congratulated government and opposition leaders for cooperating and hailed them for a statesman-like compromise.
New Zealand now has the distinction of being the first Commonwealth and English common law country to rid its law of this 19th century justification for hitting children in the name of correction.
This law reform is particularly relevant to Canada at this time because Senator Hervieux-Payette’s Private Members’ Bill S-207 passed second reading in December 2006, was referred to the Senate Human Rights Committee for study, and in June/07 was reported to the Senate for 3rd reading. Third reading could take place as early as Sept/07. Unfortunately, Canada’s media – with one minor exception – did not cover this significant New Zealand development.
Like Britain, countries such as Sweden, Finland, Norway, and Austria had a defence to assaults on children similar to our s. 43. These defences were removed between 1957 and 1977. The criminal law of these countries therefore gives children the same protection from assault as it gives adults. Beginning with Sweden in 1979, these countries also amended their civil child welfare laws to expressly prohibit corporal punishment so that the public fully understood it was illegal.
Other countries, such as Germany and Iceland, had no such defence in their criminal law. But recognizing the harm of corporal punishment and a need for clear understanding on the part of the public, they amended their civil child welfare laws to ensure that everyone understood that it was prohibited. The result is that the following countries have no defence similar to s. 43 in their criminal law and have specifically prohibited corporal punishment in their civil law in the years indicated.
2007 New Zealand
2008 Costa Rica
2011 South Sudan
1996, the Supreme Court of Italy declared all corporal punishment of children unlawful in its decision Republic of Italy c. Cambria.
A total of 33 countries have now prohibited all corporal punishment of children.
In June 2005, the Council of Europe’s Committee of Social Rights confirmed that although court judgments may prohibit all corporal punishment, not enough education takes place to make the public aware of these changes in the law.
In 1994, the Supreme Court of Portugal declared corporal punishment of children unlawful. However, the Global Initiative to End All Corporal Punishment of Children reports that in 2006, the same Court ruled that corporal punishment in childrearing is lawful and necessary.
In Sept/07, the Global Initiative reports that Portuguese legislation has now clarified this contradiction by enacting a new offence in its Penal Code. This new Article 125 states that whoever repeatedly, or not, inflicts physical or psychological ill-treatment, including corporal punishment, deprivation of liberty and sexual offences, is punishable with 1 to 5 years of imprisonment.
According to UNICEF’s Sept/03 Innocenti Report Card, Portugal has the highest number of child deaths from maltreatment in 27 of the world’s richest nations. This statistic includes deaths from ‘undetermined intent’ on the assumption that when no other cause or motive can be established, the death is most likely due to abuse or neglect that can’t be proven in court. Innocenti finds that nations with exceptionally high rates of child maltreatment deaths ie, the US, Mexico and Portugal, also have exceptionally high rates of adult deaths.
Norway will clarify law – The Global Initiative Newsletter reports in March/09 that the Norwegian govt proposes to amend its law prohibiting corporal punishment to clarify that all ‘smacking’ is prohibited. It was widely understood that all corporal punishment had been prohibited by a 1987 amendment to the Children Act (1981) stating: “The child shall not be exposed to physical violence or to treatment which can threaten his physical or mental health”. Use of moderate physical punishment had been removed from the Criminal Code years earlier. But despite a clear understanding that this meant parents could no longer lawfully hit their children, a Supreme Court judgment in 2005 suggested that light smacks might be permissible under the law. The govt now seeks an amendment to end this misunderstanding.
See School Corporal Punishment for international developments in prohibiting corporal punishment in schools.
Germany is an example of a country that did not have a special defence in its criminal law allowing parents to assault children for correction. However, some parents assumed that physical punishment was legal because the 1998 act prohibiting “maltreatment” was not widely understood to include corporal punishment. To clarify this, the government enacted the following Section 1631 in its family law code in November 2000:
This new legislation came into effect in January 2001 and was accompanied by a yearlong national campaign “More respect for Children”. It used press, radio, TV, local events, discussions and performances to bring this message to the public.
If punishment is administered contrary to the new law, it must reach a certain level of intensity before it is prosecuted as a criminal offence. This level is reached if a child is slapped. Prosecutors, however, only press criminal charges in serious cases and can waive charges where the family accepts parenting education, therapy or other supportive measures.
In 2003, the German Federal Ministry of Family Affairs and Federal Ministry of Justice published an assessment of the new law entitled Violence in Upbringing: An assessment after the introduction of the right to a non-violent upbringing. The Assessment recognizes that only a short time has passed since enactment, but finds an increase in the awareness of the harm of corporal punishment and concludes that the new law is serving as a model and guidepost for families and institutions.
2012 Survey on corporal punishment in Finland
Finnish Central Union for Child Welfare – New generations of parents in Finland are less likely to physically punish their children. Only 10% of Finish parents now say corporal punishment is acceptable, down from 50 percent in the 1980s. Finish law has prohibited corporal punishment of children since 1984. The union said it appears as if the no-hitting philosophy has seeped into the national psyche. Today 97 % of those surveyed were aware of the law, up from 94 percent in 2004. The union polled around 1,000 Finns from ages 15–79 for the survey.
In 2000, the UK Dept. of Health issued a Consultation Document on the physical punishment of children. This was in response to a 1998 European Court of Human Rights judgement that the UK’s “reasonable chastisement” defence allowing corporal punishment of children failed to protect them from inhuman or degrading treatment – contrary to the European Convention on Human Rights. (The case A. v. The United Kingdom involved a 12-year-old boy severely caned by his stepfather. The man was charged with assault causing bodily harm but acquitted in England on the basis that the canning was “reasonable”).
This decision of the European Court required the UK to grant better protection to children and the Consultation Paper was issued for advice on how this should be done. The paper accepted the need for change but stated that it would not consider making all physical punishment illegal. The intention was simply to clarify “reasonable chastisement”.
The government received 900 responses to its Consultation Document from individual members of the public and NGOs. In spite of many calls to eliminate the chastisement defence, it announced it would not change it, but would keep the defence under review, and provide extra funding for a parent support project. It defended its position on the basis that the UK Human Rights Act, which came into force in Oct/01, required courts to take into account the nature, duration, effect of the punishment and the sex, age and health of the child and that this was sufficient protection for children. Child welfare organizations and the UN Committee on the Rights of the Child have strongly criticized this decision.
Aside from enacting the Human Rights Act, the UK has not taken any steps to eliminate or amend its “reasonable chastisement” defence to parental assaults on children. In October, the UN Committee supervising the implementation of the United Nations Convention on the Rights of the Child advised that it “deeply regretted” the UK government’s persistence in retaining this defence and its inaction in prohibiting corporal punishment of children in the family.
In February/02, a survey by the MORI polling company found the government out of step with public opinion on the need to reform the law on corporal punishment. Commissioned by the National Society for the Prevention of Cruelty to Children, the poll found a majority of adults (58%) in England and Wales would support ending the reasonable chastisement defence if sure that parents would not be prosecuted for ’trivial smacks’.
In May, the government reversed its decision of two year’s ago and announced that registered childminders (the equivalent of our licensed day care providers) will be banned from “smacking” children in their care, even if they have permission to do so from the child’s parents. The Times newspaper ran two articles (May 5) entitled “End is in sight for punishment law of 1860″ and “Childminders to be banned from hitting infants” in which it is predicted that the ban on childminder smacking moved a ban on smacking by parents “a step closer”. An editorial by The Observer newspaper (May 4) recommended a ban on all striking of children writing “It is time for an outright ban. Hitting children is never right.”
In June, the British Parliament’s Health Committee and Joint Committee on Human Rights both recommended repeal of the “reasonable chastisement” defence for parents who physically punish their children.
The Human Rights Committee said the defence does not recognize the right of children to be free from physical assault. It called upon the government to act upon “…the incompatibility of the defence of ‘reasonable chastisement’ with its obligations under the U.N. Convention on the Rights of the Child.” The Committee is made up of lawmakers in both the House of Lords and House of Commons.
The House of Commons Health Committee was charged with examining the factors that led to the death in 2000 of Victoria Climbie. This 8-year-old child died of hypothermia and malnourishment after suffering 128 separate injuries inflicted over a period of several months at the hands of her guardians. The committee found that punishment of the child started with “little smacks” that escalated into abuse and eventually ended in her death. It observed that “…not all other countries seem to have the same problems with child abuse as Britain does. The experience in Sweden, for example, which has long outlawed the physical punishment of children, is one in which child deaths from deliberate harm by adults are now unknown.”
The British government is preparing a green paper on children at risk. The Health Committee has urged it to use this opportunity to recommend removal of the reasonable chastisement defence. A private member’s bill to remove the defence is expected to be introduced and the chair of the committee is urging the government to allow a free vote on the bill. The Guardian newspaper reported that 80% of MPs agreed that physical punishment can lead to child abuse. The Mayor of London has also lent his support to ending the reasonable chastisement defence.
The Children Bill
In March/04, the government introduced the Children Bill to reform the law and procedures for the protection of children. The bill was the result of a devastating report on the horrific abuse and death of 8-year-old Victoria Climbie—abuse that began with “little slaps”. Over 300 organizations, including the Assn. of Chief Police Officers, the Roman Catholic, United Reformed, and Methodist churches, and backbench Labour MPs urged the government to strengthen the law and include a prohibition on corporal punishment. The bill establishes a Children’s Commissioner, new local child protection boards, and generally reorganizes children’s protection services but says nothing about reforming corporal punishment law.
Majority of Labour MPs would support ending defence if free vote held
A survey of Labour MPs found a majority would support ending the reasonable chastisement defence if given a free vote. A free vote would allow reform without the need for official backing from the government. In June/04, however, the government indicated that it would only allow a free vote if a way could be found to distinguish between “abuse” and a “light smack”.
Proposed amendment in House of Lords to end corporal punishment
When the Children Bill was reported in the Lords, an amendment was introduced by a cross party group of peers and the Lord Bishop of Portsmouth. Peers from all three parties, including the Chairman of the Conservative Party, supported the amendment. It added a clause to the bill and amended s. 1 (7) of the Children and Young Persons Act, 1933 to prohibit corporal punishment as “unlawful battery”.
The amendment defined a “child” as a person under 18 and stated that battery of a child cannot be justified in any proceedings on the ground that it constitutes lawful punishment, except to:
- avert immediate danger to the child or any other person,
- avert an immediate danger to property,
- prevent the commission of a crime or an act that would be a crime if the child had reached the age of criminal responsibility.
Note that “battery” in UK law is equivalent to common assault in our Criminal Code, as distinct from more severe assaults, such as assault causing bodily harm.
Amendment defeated and compromise amendment passed
The government disallowed a free vote, instructed Labour peers to vote against it, and the amendment was defeated by a vote of 250 to 75.
A compromise amendment was then introduced by a Liberal Democrat peer that added a clause to the Children Bill stating that battery of a child cannot be justified if it amounts to wounding and causing grievous bodily or actual bodily harm or cruelty to persons under age16. In addition, it eliminated s. 1 (7) of the Children and Young Persons Act, 1933.
Note that the effect of this compromise is that common assault for correction would remain legal.
The Lords passed the compromise amendment by 226 votes to 91. The Children Bill as amended will go back to the House of Commons for a full debate this fall and then return to the Lords for final approval. Backbench Labour MPs, led by David Hinchliffe, chair of the Commons committee on health, will apparently attempt to defeat the compromise and amend the bill so that the reasonable chastisement defence is ended completely.
Press comments on proposed amendments
The Observer – June 20/04
Put children first
Editorial – This week, peers will vote on an amendment, which by removing the Dickensian defence of smacking as “reasonable chastisement”, would give children the same legal protection from physical assault currently enjoyed by adults. A government truly committed to the needs of children would accept such an amendment without quibble. When the safety of the vulnerable is at stake, the government should lead.
The Guardian – July
5/04 Children are unbeatable
Editorial – This crucial vote is the first and shamefully belated opportunity that parliament has been given to amend current legislation. The amendment that would not totally eliminate the “chastisement” defence is fudged and built on specious arguments. The fear of a rash of prosecutions has been dismissed by the director of public prosecutions because prosecuting minor assaults would not pass the public interest test just as it doesn’t for minor assaults on adults. Reform of the 140-year-old chastisement rule is long overdue.
The Guardian Weekly – July 9-15 Critics say amendment unworkable
Report by Sarah Hall quotes Labour MP and David Hinchliffe, chair of Commons committee on health, as saying of the compromise: “It’s a recipe for lawyers to print money because they will still be arguing over whether an assault has been committed or not.”
The Lancet – July 17/04 It is time to stop putting children second in the UK
Editorial by UK’s leading medical journal. The compromise allows parents to continue hitting children so long as there is no lasting red mark, bruise or breaking of skin. Children’s skins vary in their susceptibility to injury and head injury or internal organ damage can be especially difficult to detect. In continuing to put the rights of the child in second place, policy makers are ignoring more than a decade’s valid criticism of UK law.
Amendment to the Children and Young Person’s Act, 1933 comes into force
Subsection 1 (7) of the UK Children and Young Person Act, 1933, allowing a parent to administer punishment was amended by the House of Lords in July/04 and passed by the House of Commons in Nov/04. The amendment deletes subsection 1 (7) and states that battery of a child cannot be justified as reasonable punishment if it amounts to wounding, causing grievous bodily harm, or actual bodily harm. The effect of this is that common assaults on children remain legal. The question of what constitutes “actual bodily harm” may be difficult to determine.
As noted earlier, this was a compromise amendment and has been denounced by children’s advocates for failing to give children the full protection of the law. They believe the majority of Labour MPs would have voted for total repeal of subsection 1 (7) if the government had allowed a free vote on the issue. The amendment came into effect in Jan/05.
(Scotland has its own legal system and does not come under UK criminal law.) The Scottish government announced plans to amend its “reasonable chastisement” defence by the end of this year. The proposed legislation would:
- prohibit spanking children under age three
- prohibit hitting a child on the head
- prohibit hitting a child with an implement
- clarify the meaning of “reasonable force”
This compromise has been criticized by Scottish children’s groups because it fails to give full protection to children. It has been criticized by opposition politicians who claim that it violates parent’s rights. In September, the government abandoned its proposal to prohibit corporal punishment of children under age three on the grounds that this would increase prosecutions for “moderate” corporal punishment.
In March, the Scottish Parliament enacted the Criminal Justice (Scotland) Act 2003, section 51 of which changes and limits the “reasonable chastisement” defence to one of “justifiable assault”.
Under this new defence for corporal punishment by parents, shaking, hitting the head or hitting children with implements is expressly prohibited. The section then lists factors that courts must take into account in determining whether other assaults are “justifiable”. These include the nature, reasons, duration, frequency and effect of the assault, and the age and sex of the child. The court may also take into account “other factors (it) considers appropriate”. The section applies to children under age 16.
The government intends to launch a public education campaign before proclaiming the section in force. It is expected that advocates for the rights and protection of children will continue their campaign against this legal approval of “justifiable” assaults on children.
The National Assembly of Wales urges the government to bring forward legislation to remove the “reasonable punishment” defence to hitting children so that Welsh children have the same protection as adults under the law on assault. This is an important breakthrough for the campaign across the UK. Labour Members tabled the motion with support by the leader of the Wales Liberal Democrats. The government has supported law reform to outlaw smacking in Wales since 2004, but there has been some uncertainty as to whether it had the authority to remove the defence; since Wales (unlike Scotland) shares its criminal law with England. However, the govt now believes this change can be made but cautioned that it will take time to finalize this criminal law reform.
1924 League of Nations “Declaration of Geneva” emphasizes the child’s right to protection “against every form of exploitation”. It was the first international document referring to the rights of children.
1959 United Nations Declaration of the Rights of the Child includes the statement that children be protected against all forms of neglect, cruelty and exploitation. It did not specifically mention violence, injury or abuse and was a simple declaration of general principles not legally binding in international law.
1985 Council of Europe recommends that members review legislation on corporal punishment of children.
The Council is an inter-governmental organization of 26 European countries founded in 1949 with headquarters in Strasbourg, France. It now has 46 countries, including several from central and eastern Europe. It grants observer status to 5 other countries, of which Canada is one. It is distinct from the European Union, which has a smaller number of members, but all EU members also belong to the Council. Its aims include defending human rights and standardizing social and legal practices.
1989 United Nations General Assembly adopts the Convention on the Rights of the Child.
1990 Council of Europe condemns corporal punishment of children.
2001 UN General Assembly declares 2001-2010 the International Decade for a Culture of Peace and Non-Violence for the Children of the World.
2002 UN Committee on Economic, Social and Cultural Rights recommends prohibiting physical punishment of children in families.
2004 The Parliamentary Assembly of the Council of Europe adopts a detailed recommendation calling for a coordinated and concerted campaign for the total abolition of corporal punishment of children (Rec. 1666/2004 June 24). It states that any corporal punishment is a breach of a child’s fundamental rights to human dignity and physical integrity, a violation of their fundamental right to the same legal protection as adults, and that its social and legal acceptance must be ended. It also notes that corporal punishment violates the European Social Charter and the Revised Social Charter and does not breach the right to private or family life or religious freedom.
The Assembly invites the Council’s Committee of Ministers to establish strategies to end corporal punishment by (among other things):
- encouraging positive, non-violent forms of child rearing,
- involving children and young persons in planning and implementing activities,
- ensuring that parents, particularly those experiencing child-rearing difficulties, receive advise and support,
- offering children confidential advice, counseling and legal representation to respond to violence against them,
- offering effective protection to children who are particularly vulnerable, ensuring that corporal punishment and other humiliating forms of discipline are included
- in the definition of domestic violence and form an integral part of strategies to combat such violence,
- enacting legislation to prohibit corporal punishment,
- monitoring the effectiveness of abolishing corporal punishment, child protection services, and parental experience of and attitudes to violence against children.
The 1989 United Nations Convention on the Rights of the Child is binding in international law and can be used to interpret domestic laws such as our Charter of Rights and Freedoms and to guide the development of our common law. The Convention has been a major influence in persuading countries to end legal approval of corporal punishment of children. The USA and Somalia are the only two countries that have not ratified the Convention.
Articles of Convention
Art. 2 States shall respect the rights set out in the Convention irrespective of (among other things) the parent’s religious or political opinions.
Art. 3 In all institutional, judicial, administrative and legislative actions, the best interests of the child shall be a primary consideration.
Art. 19 States shall protect the child from all forms of physical or mental violence, injury or abuse.
Art. 24 (3) States shall abolish traditional practices prejudicial to the health of children.
Art. 28 (3) School discipline must be consistent with the child’s human dignity and in conformity with the Convention.
Art.37 (a) No child shall be subjected to torture or other cruel, inhuman or degrading treatment or punishment.
Art. 42 States undertake to make the principles and provisions of the Convention widely known by appropriate and active means to adults and children alike.
UN Committee recommends ban on corporal punishment
The UN Committee on the Rights of the Child was set up to monitor implementation of the Convention. It is a 10 member body elected by the parties to the Convention. Parties must report every 5 years on progress made in implementing the Convention.
The Committee has stressed that corporal punishment is incompatible with the Convention. It has proposed that legislation allowing it be reviewed and that corporal punishment be prohibited.
Canada’s role and response to Convention
1990 Canada signed the Convention after playing a leading role in both drafting and promoting it.
1991 The federal Progressive Conservative government ratified the Convention with the support of all provinces except Alberta. Alberta affirmed its support in 1999.
1993 November 20 of each year designated by the federal government as National Child Day to commemorate the1989 adoption of the Convention by the UN General Assembly.
1995 Canada reported to the UN Committee on its implementation of the Convention. On the issue of corporal punishment, the Committee responded to Canada’s report by recommending:
- physical punishment of children in the home and school be prohibited
- a nation-wide educational campaign be launched to sensitize both public and children to the principles of the Convention.
2001 Canada filed its 2000 Report with the Committee and advised that because s.43 was being challenged in court, it could not comment on the issue. The Committee will not be responding to this Report until late 2003.
2003 Canada’s second report on implementing the UNCRC was due in 1999 but submitted to the Committee in April 2001, apparently because of delays in receiving data from the provinces. The report principally covers activities from 1993 – 1997 but includes some information on activities since then.
In its response to Canada’s first report, the Committee had stated that Canadian legislation does not adequately protect children from abuse and neglect. Canada’s second report responds to this by citing other sections of the Criminal Code that protect children, and by citing provincial child welfare legislation. On section 43 specifically, the report advises the Committee that the federal Court Challenges Program is funding a constitutional challenge to section 43.
The second report adds that Health Canada is promoting research on alternatives to corporal punishment and has supported the 2001 Canadian Incidence Study of Reported Child Abuse and Neglect and research on how child abuse is classified and reported by pediatric hospitals. Financial support from the Canadian Heritage Department to the Child Welfare League of Canada to provide information on child abuse to ethnocultural communities is referred to, along with financing from Canada Mortgage and Housing Corporation for shelters for women and children fleeing domestic violence.
In September/03, the Canadian Department of Foreign Affairs delegation, led by Senator Landon Pearson, appeared before the Committee to answer questions on its second report. The delegation answered the Committee’s question on section 43 by stating it is following a “two-pronged” approach to the issue of corporal punishment by:
- supporting programs that advocate against physical discipline and the use of alternatives to such discipline, and
- supporting the use of criminal sanctions in all situations that raise the potential for harm to a child, but qualifying this by stating that “it is not in the best interests or children or society to bring the full force of criminal law to bear on parents who give a mild, non-injurious spank to a child.”
On Oct 3/03, the Committee issued its written observations on Canada’s report, stating:
- The Committee is deeply concerned that Canada has not enacted legislation explicitly prohibiting all forms of corporal punishment and has taken no action to remove section 43 of the Criminal Code which allows corporal punishment of children.
- The Committee recommends that Canada remove existing authorization for the use of “reasonable force” in disciplining children and explicitly prohibit all forms of violence against children, however light, in the family, schools and other institutions.
The Committee’s recommendation appears to go further than simply repealing s. 43 because it calls on Canada to explicitly ban corporal punishment. This has been done by 10 countries in Europe and recently in Israel and Iceland. The Committee seems to be recommending that Canadian provincial/territorial child protection law include a clear statement that corporal punishment shall not be used against children.
The Committee also noted a lack of coordination in implementing the Convention and the lack of a federal ombudsman for children’s rights, stating:
- The Committee encourages Canada to strengthen effective coordination and monitoring of the Convention particularly between Federal and provincial/territorial authorities.
- The Committee recommends that Canada establish a federal Ombudsman’s Office responsible for children’s rights and similar offices in provinces/territories that do not yet have such an office.
To help countries to catch up with their reporting obligations, the Committee asks them to submit their third and fourth reports by January, 2009.
Canada’s second report doesn’t specify what research the federal government is conducting on alternatives to corporal punishment, and as for its few programs that advocate against corporal punishment, these are very limited in scope.
Stating that it supports criminal sanctions in situations that “raise the potential for harm” avoids the evidence that section 43 in fact allows harm. The expert evidence in the constitutional challenge to the section indicated that many acquittals under it clearly involve punishments that are either harmful in themselves or that have a definite potential for harm.
The argument that ending s. 43 would bring the “full force of the law on parents who give a mild, non-injurious spank” is not valid. Such a spank would be treated – with or without s. 43 – as a minor breach of the law and would not be prosecuted because of the de minimus rule against prosecutions for trivial offences. Using the specter of prosecutions for a mild, non-injurious spank as a justification for retaining the section ignores this rule. It also ignores the fact that provincial/territorial attorneys general can issue guidelines directing that prosecutions only take place where the offence is serious and parents refuse alternative measures such as counselling or parenting education.
Furthermore, making the question of ending section 43 turn on whether or not it causes harm, also ignores the more fundamental issue of whether s. 43 violates a child’s basic rights and should be ended for this reason alone.
2009 Canada files its third and fourth reports on compliance with the UNCRC on Nov 20. Re s. 43, it says that in 2004 the Supreme Court of Canada found the section constitutional and consistent with our obligations under the Convention and that the federal govt supports parent education programs that promote non-physical discipline and alternatives to physical discipline. It refers the Committee to a fact sheet on the Dept of Justice website entitled “The Criminal Law and Managing Children’s Behaviour”, which it describes as a plain language explanation of the current law.
The Interim Report Who’s In Charge Here? of the Senate Standing Committee on Human Rights was published in Nov/05 and explains how the federal government deals with international treaties. The report notes that international treaties do not become part of Canadian law unless legislation is passed expressly incorporating them into our law. Without this, treaties are left to be implemented through existing legislation. Whether existing legislation complies with a treaty is based on the government’s own opinion. Although the government must make its best efforts to comply with international treaties, its own opinion on compliance prevails.
The committee finds the government does not have an effective mechanism for coordinating federal laws and policies and provincial laws and policies to bring these into conformity with the UN Convention on the Rights of the Child. The Continuing Committee of Officials on Human Rights in the Dept. of Canadian Heritage is currently charged with this responsibility. The report finds the process ineffective, too complex, lacking in transparency and public and parliamentary input.
The UN mechanism for monitoring implementation of the UNCRC is the UN Committee on the Rights of the Child. States report every 5 years on their compliance. The UN Committee responds by filing “observations” on a country’s report. These observations are not legally binding but have considerable moral weight. The government’s process for reporting to the UN Committee and the follow-up on its observations is “wholly inadequate”. Compliance reports, the UN’s observations on them, and the government’s response to UN observations should all be referred to a Parliamentary Committee for examination. Canada’s next report to the UN Committee is due in Jan/09 and the government should begin consultations on preparing it now, given that the last report took 3 years to complete.
The Senate report emphasizes that the UNCRC sees children as having rights of their own; not simply as passive objects to be protected by others. Since rights also involve responsibilities, it believes this approach can lead to more responsible adults.
It notes that article 42 of the UNCRC obliges states to make the Convention known to all and that this requires widespread dissemination of Canada’s reports to the UN Committee, the UN’s observations on them, and Canada’s response to these observations. It finds that government officials, the general public and, indeed, children lack an awareness of the UNCRC.
The report notes a dearth of NGOs in the children’s rights sector and that NGOs such as the Coalition on the Rights of the Child lack adequate funding to publicize the UNCRC and monitor government compliance.
The committee recommends:
- the federal government establish a more effective means of negotiating and implementing international human rights obligations,
- the federal government consider itself legally bound by human rights commitments,
- the federal government comply fully with the UN Convention on the Rights of the Child,
- Parliament establish a Children’s Commissioner to monitor implementation of the UNCRC, with the Commissioner reporting annually to Parliament,
- the federal government establish an interdepartmental working group to coordinate laws and policies on children’s rights issues.
A final report dealing with specific children’s rights, including the question of corporal punishment and s. 43 of the Criminal Code is expected in early 2007. Written submissions advocating repeal can still be made by individuals and organizations. Contact the Clerk of the Committee at 1-800-267-7362 for information.