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In a recent high profile decision, a high court in South Africa ruled that the corporal punishment of children on the grounds of ‘reasonable chastisement’ is unconstitutional. Around the world, lawmakers are proposing the removal of exceptions in law that protect parents from being prosecuted for assault when administering corporal punishment. For example, the Welsh Assembly has promised a new consultation on removing the defence of ‘reasonable chastisement’, the Bahrain government has also committed to removing the ‘reasonable chastisement’ defence; making its way through the Scottish Parliament is a bill that will remove the defence of ‘justifiable assault’; and in Jamaica the prime minister has asked parliament to debate the issue and bring an end to all corporal punishment in both the home and public settings.
According to latest figures compiled by the Global Initiative to End all Corporal Punishment of Children, 145 states have imposed a full ban on corporal punishment in all educational settings which in practice means that 732 million school children worldwide are not legally protected from corporal punishment when they enter the school gates. Legal protections are even worse in the home, with only 60 states banning corporal punishment in both public and private settings. This is because states have traditionally eschewed interfering with parents’ freedom to bring up and discipline their children as they see fit.
That being said, human rights law is unequivocal in banning corporal punishment in all public settings, including schools and other educational settings. Corporal or physical punishment is defined by the UN Committee on the Rights of the Child, which oversees the Convention on the Rights of the Child (CRC) as ‘any punishment in which physical force is used and intended to cause some degree of pain or discomfort, however light’ (General Comment No. 8, 2006, para. 11).
Article 28 (2) of the CRC requires states to ‘take all appropriate measures to ensure that school discipline is administered in a manner consistent with the child's human dignity and in conformity with the present Convention.’ The Committee clarifies this by saying that corporal punishment is a form of violence against children which is prohibited under Article 16 of the CRC (General Comment No. 8, para. 1) and is ‘invariably degrading’ (para. 11). The Committee against Torture agrees and considers that corporal punishment could in some instances amount to cruel, inhuman or degrading punishment (1998, para. 4) and regularly calls on states to ban its use in all settings, as does the Human Rights Committee. And in General Comment 13 (1999) on the right to education, the Committee on Economic, Social and Cultural Rights reiterates that the use of corporal punishment in schools is inconsistent with human dignity and ‘welcomes initiatives taken by some States parties which actively encourage schools to introduce “positive”, non-violent approaches to school discipline’ (para. 41).
Viewed from the position that corporal punishment can only ever be antithetical to the dignity of the child and to the promotion of non-violence in schools, and that corporal punishment would amount to state violence against children that would be very difficult to justify under international law, it is entirely appropriate that states should ban corporal punishment in public institutions. However, corporal punishment against children remains worryingly prevalent in the private realm, that is, in the family home. This is largely because, under human rights law, parents are rightly considered best placed to make decisions about their children’s upbringing and are therefore given the primary responsibility and freedom to do so, and states have traditionally stayed out of family matters, where possible.
However, states may legitimately intervene under very narrow circumstances, in fact they have a legal obligation to protect rights-holders from rights abuses made by third parties. For instance, states must protect children from physical and emotional abuse and other forms of violence. Corporal punishment has traditionally not been considered a form of violence, thus its wide social acceptance with the law in many countries reflecting this belief.
But as the cases mentioned above indicate, corporal punishment is becoming less and less socially acceptable and governments have increasingly crossed the public-private divide to legally protect children from violence. This is due to two major factors: 1. the recognition of children as rights-holders and 2. a growing body of empirical evidence that shows that corporal punishment has deleterious effects on children’s wellbeing and development and that questions the efficacy of corporal punishment as a form of discipline that encourages long-term good behaviour.
1. Since the adoption of the Convention on the Rights of the Child in 1989 and the recognition that children are rights-holders, many have questioned whether corporal punishment is compatible with the best interests of the child, the dignity of the child, and the human rights of the child. These arguments are laid out by the Committee on the Rights of Child in General Comments 8 on corporal punishment and 13 on the right of the child to freedom from all forms of violence.
As mentioned above, the Committee considers corporal punishment to be a form of violence, this includes ‘smacking’, ‘slapping’, and ‘spanking’.The Committee is definitive in its General Comment No. 13, that there are no exceptions to the prohibition of violence, which ‘does not leave room for any level of legalised violence against children’ (para. 18) including corporal punishment.
That is not to say that the Committee rejects the notion that discipline can have a positive effect on a child’s development (CRC General Comment No. 8, para. 13). The Committee recognises that some physical intervention may be necessary when caring for children. However, a clear distinction is drawn by the Committee between a ‘protective physical action and a punitive assault’ (para. 14) with corporal punishment falling squarely into the category of ‘punitive assault’. For this reason, the Committee calls on all states to ‘enact or repeal, as a matter of urgency, their legislation in order to prohibit all forms of violence, however light, within the family’ (para. 8).
The Committee has also stated that corporal punishment may violate the right of children to equal protection under the law (General Comment No 8, para. 5). So, just as corporal punishment against an adult might amount to ill treatment if perpetrated by a state official or assault if perpetrated by anyone else, so it should be the case for children. The Committee goes on to state that the foremost purpose of any legislative reforms in this area must be ‘to prevent violence against children by changing attitudes and practice, underlining children’s right to equal protection’ (para. 38).
Lastly, the Committee argues that corporal punishment can violate other substantive rights under the the CRC, notably the rights to health and education. The impact of these rights violations can be significant and devastating, for example, the ‘disruption or discontinuation of education’ (CRC General Comment No 13, para. 16) and lasting physical or psychological injuries and 'other impacts on a victim’s quality of life’ (para. 16).
2. As to the efficacy of corporal punishment as a method of improving discipline and long term behaviour in children, a recent article featured in the New Scientist points out (Time to put smacking on the naughty step, Jessica Hamzelou, No 3149, 28 October, 2017) there have been numerous studies on the effects of corporal punishment over the past five decades and the vast majority of these have found that physically punishing children—whether in school or in the home—has a detrimental effect on their long-term development.
Further, in an extensive evidence review published in 2015, the UK’s National Society for the Prevention of Cruelty to Children (NSPCC) found that ‘there is strong and consistent evidence from good-quality research that physical punishment is associated with increased childhood aggression and antisocial behaviour.’
The NSPCC’s findings further show that not only is corporal punishment ineffective in instilling boundaries and good behaviour in children and achieving the desired parenting goals (Equally protected: A review of the evidence on physical punishment of children, NSPCC, 2015, p. 27) there is also significant evidence to show that children who are subjected to corporal punishment by parents or guardians will:
- begin ‘externalising behaviour’, in which ‘the child is acting in a negative or destructive way towards the external environment, broadly manifesting as aggression, delinquency, or hyperactivity’ (p. 28) . Here, corporal punishment has the effect of perpetuating violence, as pointed out recently by a Samoan judge
- experience ‘internalising behaviour’ including ‘depressive symptoms, anxiety, withdrawal, and somatic complaints (i.e. physical symptoms such as headache or stomach-ache that are medically unexplained)’ (p. 30)
As the empirical evidence demonstrates, there is no question that corporal punishment does not achieve the aim of instilling good behaviour into children. In fact, in an educational setting it has a negative impact on students’ desire and ability to learn, and in the home it also impedes a child’s ability to learn over the long-term, as well as encouraging the very negative behaviours parents seek to prevent through smacking and other such forms of corporal punishment. While the importance of parental autonomy in choosing how to bring up their children free from unwarranted and illegitimate state interference cannot be overstated, under the Convention on the Rights of the Child children are recognised rights-holders, too. It is clear that corporal punishment is incompatible with the rights of children to live with dignity, free from violence, and in a way which encourages them to thrive and reach their full potential and it is time for both governments and parents to respect the rights of the child.