(1) Child [sic] shall not be subjected to corporal punishment or any other cruel, inhuman or degrading treatment.

(2) The prohibition referred to in para 1 above shall pertain to parents, guardians and all other persons taking care of or coming into contact with the child.

(3) The persons referred to in para 2 above are obliged to protect the child from any treatment referred to in para 1 above.”

Prior to the legislative reform, corporal punishment was still lawful in the home, alternative care settings and some day care settings.

Montenegro’s prohibition of corporal punishment – together with bans subsequently achieved in Paraguay, Slovenia and Lithuania – brings to 53 the number of states worldwide, and 32 Council of Europe member states, which have prohibited all corporal punishment of children. As a Pathfinder country under the Global Partnership to End Violence Against Children, we hope more states will be inspired to follow Montenegro’s achievement for the fundamental rights of children!

Further information

• Further information on the reform in Montenegro
• Individual country report on law, treaty body recommendations and relevant research in Lithuania
• The latest facts and figures on global progress towards prohibition

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However in 2011, the Charging Standard was amended to state that a charge of assault occasioning actual bodily harm could only be brought if the injuries were serious; to determine the seriousness of the injury “relevant factors may include, for example, the fact that there has been significant medical intervention and/or permanent effects have resulted”.[1] This means that for “less serious” injuries such as bruises, welts and cuts that do not require stitches, the “reasonable punishment” defence can be invoked, where previously the threshold was a “reddening of the skin”.

The CPS is now opening a consultation on the revised Offences against the person Charging Standard, which only applies in England and Wales. This provides an opportunity to highlight the inconsistency between the Government’s declarations and the current state of the law (see Note below) as well as the Government’s consistent refusal to abide by its international obligation to prohibit all corporal punishment in law. Under the Convention on the Rights of the Child, the UK must prohibit all corporal punishment of children, however light, in all settings of their lives. This means the defence of “reasonable punishment” must be removed.

The CPS has produced a draft revised Offences against the person Charging Standard. Comments are welcome and should be sent to Kwame.biney@cps.gsi.gov.uk by Thursday 27 July 2017. The finalised standards will then be published later this year.

Note:

The UK Government has repeatedly rejected recommendations to explicitly prohibit corporal punishment and to repeal the defence of “reasonable punishment”. In its national report to the Universal Periodic Review which took place in May 2017, and where the UK received a record seven recommendations on the prohibition of corporal punishment of children, it asserted that:

“The [UK Government] does not condone any violence towards children and has clear laws to deal with it. But parents should not be criminalised for giving a child a mild smack in order to control their behaviour. The “reasonable chastisement” defence is only available when the charge is one of common assault; it cannot be used when someone is charged with assault causing actual or grievous bodily harm, or with child cruelty.”[2]

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The new law defines corporal punishment as “any punishment in which physical force is used to cause physical pain, even on a small scale, or otherwise to physically torture a child” and explicitly includes it in the definitions of violence against a child and physical violence. Article 4 of the amending Law modified article 10.2 of the Law on the Fundamentals of Protection of the Rights of the Child 1996 to state (unofficial translation):

2. Children have the right to be protected from of all forms of violence, including corporal punishment, by their parents, other legal representatives, persons living with them or other persons.”

The amendments also set out the State’s obligation to take appropriate measures ensuring that children are protected of children from all forms of violence – including corporal punishment – they may suffer at the hands of their parents, guardians, and any other person caring for the child (article 3).

The amending Law must now be signed by the President of the Republic or the Speaker of the Seimas; it will come into force the day after its official inclusion into the Register of Legal Acts.

Prior to legislative reform, corporal punishment of children was lawful in the home, alternative care and some day care settings.

This reform makes Lithuania the 52nd state worldwide to fully prohibit all corporal punishment of children; it is the 31st Council of Europe member state and the 22nd European Union state to do so. This new Law also leaves Russia as the only member of the Council of the Baltic Sea States that has not fully prohibited the violent punishment of children.

Further information

• Further information on the reform in Lithuania
• Individual country report on law, treaty body recommendations and relevant research in Lithuania
• The latest facts and figures on global progress towards prohibition

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Soon after the law was voted, opposition MPs referred it to the Constitutional Council and challenged the constitutionality of several of its provisions. The challenge brought forward by the senateurs (members of the upper house of Parliament) specifically called out article 222 as a cavalier legislatif – they claimed that the amendment which added article 222 to the Equality and Citizenship Bill had no link, even indirect, with the original text of the Bill and was therefore unconstitutional.

The government defended the Law by arguing that the original text contained several provisions related to young people and that by prohibiting all forms of violence against children, article 222 did tie in with the initial Bill. However, the Constitutional Council ultimately agreed with the senateurs’ challenge and found article 222 unconstitutional as having no direct or indirect link with the initial text. The Council’s decision cannot be appealed.

The French Minister for Family had applauded the vote of the article and expressed deep disappointment upon hearing of the Council’s decision, criticising the opposition’s decision to challenge the article as a misguided attempt to preserve the “right” of parents to hit their children.

Le Conseil constitutionnel français censure l’article interdisant les “violences corporelles” contre les enfants

Le 26 janvier 2017, le Conseil constitutionnel français a censuré plusieurs dispositions de la loi Égalité et Citoyenneté adoptée en décembre dernier, dont l’article 222 qui interdisait le recours aux “violences corporelles” contre les enfants.

Peu après le vote de la loi, des parlementaires de l’opposition avaient déféré le texte adopté au Conseil constitutionnel pour contester la constitutionnalité de plusieurs de ses dispositions. La saisine introduite par les sénateurs qualifiait l’article 222 de “cavalier législatif”, c’est-à-dire qu’elle accusait l’amendement ajoutant cet article au projet de loi Égalité et Citoyenneté de n’avoir aucun rapport, même indirect, avec l’objet du projet de loi initial, et d’être par conséquent inconstitutionnel.

Le gouvernement a défendu la loi en avançant que le texte original contenait plusieurs dispositions relatives à la jeunesse, et que l’interdiction de toutes les formes de violence contre les enfants était donc bien en lien avec le projet de loi. Le Conseil constitutionnel a néanmoins donné raison aux sénateurs, déclarant l’article inconstitutionnel en raison de l’absence de lien direct ou indirect avec le texte initial du projet. La décision du Conseil est définitive.

La ministre des Familles, qui avait salué l’adoption de l’amendement, a exprimé sa grande déception à l’annonce de la décision de Conseil. Elle a notamment critiqué le recours de l’opposition contre cet article, le décrivant comme une tentative malavisée de protéger le “droit” des parents à frapper leurs enfants.

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“Parental authority is a cluster of rights and duties whose finality is the interest of the child.

It is vested in the father and mother until the majority or emancipation of the child in order to protect him in his security, health and morality, to ensure his education and allow his development, with all due respect owed to his person and excluding all cruel, degrading or humiliating treatment, including any use of corporal violence.

The parents shall make a child a party to decisions that concern him, according to his age and degree of maturity.”

The Global Initiative welcomes this vote, but notes that the use of the term “corporal violence” is not on its own strong enough to effectively prohibit all corporal punishment of children, however light, in all settings including the home. In fact, violence against children is already an offence under the Penal Code, so without a definition of “corporal violence” it is unclear what impact this new law will have on the legality of corporal punishment.

French judges have previously recognised a “right of correction” to parents and individuals with parental responsibilities and have not before construed corporal punishment as cruel or violent treatment. The expose des motifs – the explanation given by the MP bringing forward the amendment – clearly states that this amendment aims to repeal the “right of correction” defence and to prohibit all forms of violence against children, physical, verbal and psychological. However, the expose des motifs does not have a strong standing in legal terms and is not binding when a judge is interpreting the law.

It is our understanding that once the law is promulgated and published in the Official Journal, a decret d’application – a governmental document which gives interpretative guidance of the law – should include the definition of corporal punishment set out by the Committee on the Rights of the Child, and clarify that this amendment fully prohibits all corporal punishment of children. The decret will not be publicly available until after the promulgation of the law.

The French President has 15 days after a law is voted to promulgate it. However, constitutional challenges have been raised against different provisions of the law including article 68, which will delay promulgation until early February 2017.

Provided that the constitutional challenges do not succeed and that the term “corporal violence” is defined as encompassing all corporal punishment in the decret, France will then become the 52^nd state worldwide and the 22^nd European Union state to achieve complete prohibition of corporal punishment of children.

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On 25 October 2016, the Slovenian National Assembly passed Law No. 542-08/16-9/2.6 Amending and Supplementing the Law on Prevention of Family Violence (ZPND-A). The new law prohibits violence in the family and includes corporal punishment of children in the definition of violence (article 3). Article 4 explicitly prohibits corporal punishment of children, inserting a new article 3a into the existing law, which states (unofficial translation):

(1) Corporal punishment of children is prohibited.

(2) Corporal punishment of children is any physical, cruel or degrading punishment of children or any other act with the intention to punish children, containing elements of physical, psychological or sexual violence or neglect as an educational method.

The new law, which enters into force on the fifteenth day following its publication in the Official Gazette of the Republic of Slovenia, also requires funds to be allocated from the national budget for training in the field of violence, particularly violence against children, and to finance positive parenting programmes (article 14).

Prior to this reform, corporal punishment was lawful in the home, alternative care and some day care settings. The Ministry of Labour, Family and Social Affairs has confirmed that while the law relates specifically to family violence, article 3a which prohibits corporal punishment of children is general in its application to all settings, and so prohibition is absolute, including in all alternative care and day care settings.

This reform makes Slovenia the 51st state worldwide to fully prohibit all corporal punishment of children; it is the 30th Council of Europe member state and the 21st European Union state to do so.

Further information

• Further information on the reform in Slovenia
• Individual country report on law, treaty body recommendations and relevant research in Slovenia
• The latest facts and figures on global progress towards prohibition

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Designed to support action, the report describes how states can work collaboratively towards universal prohibition of violent punishment; it sets out existing regional commitments and action and how to use opportunities at national level to achieve prohibition. Where a total ban has been achieved, the report outlines what is required for states to move from prohibition in law to elimination of all violent punishment of children.

While there is some commendable progress as this report confirms, corporal punishment of children remains legal within the family in almost three quarters of states and also in schools, care institutions and penal systems in many states.

Both the Committee on the Rights of the Child and the African Committee of Experts on the Rights and Welfare of the Child consistently address this issue as a human rights violation in their examination of states’ reports. We must hope, even expect, that the added monitoring of the SDGs process will speed universal prohibition ahead of 2030, together with substantial progress towards the elimination of all violent punishment.”

Benyam Dawit Mezmur, Chair, Committee on the Rights of the Child; Chair, African Committee of Experts on the Rights and Welfare of the Child, in Childhoods free from corporal punishment – prohibiting and eliminating all violent punishment of children. A special progress report prepared for the high-level intergovernmental conference hosted by the Austrian Government in Vienna, June 2016, and marking the 10th anniversary of the UN Study on Violence against Children

The full report is available here.

A limited number of hard copies is available for advocacy purposes; email info@endcorporalpunishment.org.

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In its concluding observations on the review of Slovenia, the Committee expressed concern that corporal punishment is not explicitly prohibited and recommended practical steps, including legislative measures, to end corporal punishment in all settings. It further recommended that the state encourage non-violent forms of discipline as alternatives to corporal punishment, and conduct public information campaigns to raise awareness of its harmful effects.

To South Africa, the Committee stated its concern that corporal punishment in the home is not prohibited, that it is traditionally accepted and widely practiced, and again recommended practical steps, including legislative measures, to end corporal punishment in all settings.

Legislation to prohibit corporal punishment in all settings is currently being drafted in both states, as part of Slovenia’s new family law and under amendments to the Children’s Act in South Africa. Here’s hoping the Human Rights Committee’s recommendations to take legislative measures to end corporal punishment in all settings will serve to boost that process.

Further information:

• For details of the current legality of corporal punishment and the reforms necessary to achieve prohibition, see the Global Initiative’s country reports for Slovenia and South Africa.
• For further information on the obligation to prohibit corporal punishment under the International Covenant on Civil and Political Rights, see the Global Initiative’s page on the Human Rights Committee.

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Children have the right to care and security. Children must be treated with respect for their person and must not be exposed to corporal punishment or other humiliating treatment.”

A Bill to achieve this law reform was originally tabled in January 2015, but lapsed when elections were announced in June 2015. It was re-submitted as Bill No. L 35 on 29 October 2015 and was passed unanimously by Parliament (the Folketinget) on 19 January 2016.

This law reform makes Greenland the sixth territory worldwide to ban all corporal punishment of children and means that violent punishment of children is now unlawful throughout the Kingdom of Denmark.

Further information

• Further information on the reform in Greenland
• The latest facts and figures on global progress towards prohibition
• Table showing progress towards prohibition of corporal punishment in all settings in all states and territories worldwide

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Speaking during the report and final stages debate in the Seanad, Senator Jillian van Turnhout, who tabled the original amendment, stated:

This ancient defence of reasonable chastisement is not an Irish invention. It came to us from English common law. Through its colonial past, England has been responsible for rooting this legal defence in over 70 countries and territories throughout the world. In England, Wales and Northern Ireland, the reasonable punishment defence still allows parents and some other carers to justify common assault on children. In Scotland, there is another variation, namely the defence of justifiable assault. In this action being taken today, the Government is putting children first and providing leadership, which will hopefully give confidence to the Government at Westminster, the devolved UK Administrations and other countries across the globe to discard these archaic and disreputable defences and give full respect to the dignity of children…. With this amendment we have a way to unite and agree that all citizens are equal. There must never be a defence for violence against children.”

Minister for Children and Youth Affairs James Reilly, confirming the Government’s support for removal of the defence, stated:

The amendment before the House provides for the total abolition of the common law defence of reasonable chastisement. It does not create a new offence but rather removes something that has its roots in a completely different era and societal context. The measure asserts: that there is no circumstance in which it may be seen to be in order to hit a vulnerable person, in this case a child; that from a child’s perspective there is nothing reasonable about being on the receiving end of corporal punishment; that Irish parents are no less protective of their children, nor less progressive in their parenting practices, than those in the other 19 European countries where a statutory ban on corporal punishment is in place; that the Government, by its laws, will protect and vindicate the rights of children; and that Ireland is diligent as regards meeting its international obligations in the area of human rights. The measure represents a significant advancement as regards the protection and rights of children. It reinforces the developing impetus in parenting practices in Ireland to use positive discipline strategies in upbringing of children which reject the use of corporal punishment.”

The new law will now go to the President for signature and is likely to come into force shortly. For further information, see the page on states which have achieved prohibition and the detailed country report for Ireland. For the latest facts and figures on global progress towards prohibition, see our countdown to universal prohibition.

Analysis by the Global Initiative has identified almost 80 states and territories worldwide where the law provides a legal defence for the use of corporal punishment in childrearing derived from English law on “reasonable chastisement”: a preliminary list is available here. Explicitly repealing these defences is critical to the realisation of children’s rights to respect for their human dignity and physical integrity, protection from all forms of violence and equal protection under the law.

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