Children and corporal punishment: "the right to physical integrity, also a right of the child".
TABLE OF CONTENTS
Introduction
Definition of corporal punishment
Protection against corporal punishment is a matter of human rights
Towards the end of corporal punishment inflicted on children worldwide
Towards the end of corporal punishment of children in Europe
Prohibition of corporal punishment at the national level
Conclusions
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Thematic documents of the Commissioner
Thematic papers are sponsored and published by the Commissioner for human rights to contribute to the debate or to advance thinking on an important issue and the human rights news. All the opinions expressed in these documents of experts not reflect necessarily the position of the Commissioner. Thematic papers are available on the website of the Commissioner: www.commissioner.coe.int
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Introduction
The majority of the Member States of the Council of Europe is committed to put an end to all corporal punishment of children. To date, the total ban in law has been adopted by 18 Member States, and at least 7 others have publicly promised to soon do the same.
Human Rights Commissioner has welcomed these developments and invited other countries to prohibit and eradicate all forms of corporal punishment of children. This thematic file contains general information and explanations on the measures already taken by the European Court and other international and European human rights mechanisms.
* * *
The problem is rooted and serious. In Europe, children are daily bondage, corrected, slapped, shaken, pinched, beaten, kicked, punched, stick, whip, belt, beaten and martyred by adults, primarily by those who have the most confidence.
Such violence may be an act of punishment or impulsive response of a parent or a teacher angry. In all cases, they constitute a violation of human rights. Respect for human dignity and the right to physical integrity are universal principles. Yet, the fact of hitting a child or impose any other humiliating treatment is accepted socially and in most countries legally world.
Corporal punishment of children is often inhumane or degrading; and systematically violates the physical integrity of the persons concerned, reflects a lack of respect for their human dignity and undermines self-esteem. Moreover, the exceptions regarding children in some laws against violence, which would be otherwise applicable to all, are contrary to the principle of equal protection before the law.
The legal concepts such as "reasonable chastisement" and "lawful correction" come from the fact that the child is seen as the property of his parents. It is the modern equivalent of the laws in force one or two centuries ago which allowed masters to beat their slaves or servants, as well as the husbands to beat their wives. These "rights" are based on power imposed by the highest to lowest, and are exercised by the violence and humiliation.
It is recently that the children were legally protected in the same way that adults against deliberate violence, protection that we, adults, are generally for granted. How is it possible that the children, that are recognized particularly vulnerable to infringements of physical and mental because of their stage of development and their small size, less protection against violence in their body, their mind and their dignity fragile?
The fight against the legal acceptance and social violence, including that suffered daily in the home, was a fundamental element of the struggle for the equality of status between women and men. It goes same for children: what brand of their depreciation more striking than the idea of adults that they have the "right", and even the duty, to hit children?
Definition of corporal punishment
The Committee on the rights of the child of the Nations System1 defines corporal punishment in these terms:
"any punishment in which physical force is used with the intent to cause a degree of pain or discomfort, even slight." Most often, this involves hitting ("correct", "smack", "fesser") a child of the hand or with an object: whip, stick, belt, shoe, wooden spoon, etc. But it can also be, for example, to give him kicking, shaking or the drop, the scratching, pinching the, the bite, to him draw hair or to hit him on the ears, to force him to stay in an uncomfortable position, to burning, scalding him, to ingest force such or such thing (for example by him washing the mouth with SOAP or by forcing) (to swallow red peppers). In the opinion of the Committee, the punishment is invariably degrading. In addition, there are other non-physical forms of punishment but also cruel, degrading and therefore incompatible with the Convention. This involves, for example, lowering the child, to humiliate, to denigrate the, to make a scapegoat, to threaten it, the terrorizing or the ridicule. ».”
Protection against corporal punishment is a matter of human rights
Today, it is called also human rights for children, which are therefore more considered "half" - people with a limited number of rights. This evolution reflects a major change in attitude which made possible the international treaties such as the United Nations Convention on the rights of children.
This convention is the most ratified human rights, since it has been by all the States members of the Council of Europe. It is the first international instrument of the human rights binding on specifically the protection of children against violence.
Article 19 of the Convention on the rights of the child provides that States shall take:
"all legislative, administrative, social and educational measures to protect the child against all forms of violence, interference or brutality physical or mental, of abandonment or negligence, ill-treatment or exploitation, including sexual violence, while it is under the custody of his parents or of one of them, of his or her legal representatives or any other person to whom it is entrusted.".
Other articles strengthen the right of the child to physical integrity and the protection of its dignity. The preamble asserts that in reason precisely his "lack of physical and intellectual maturity", the child needs "protection and special care," including of appropriate legal protection. Article 37 requires the States parties to ensure that "no child not be subjected to torture or punishment or cruel, inhuman or degrading treatment or punishment."
The Council of Europe human rights mechanisms have denounced for the first time the corporal punishment of children 30 years ago. In 1978, the European Court of (ECtHR) human rights held that the conviction of lashes of a young man of 15
years violated his right to protection from corporal dégradants2. Subsequently, decisions taken in the 1980s and early 1990s have condemned corporal punishment in schools, first in public schools, then in the private schools in the Kingdom.3 Kingdom.
Other important decisions of the European Commission of the rights of man and of the European Court recalled that the rights to private or family life, freedom or religious belief were not valid arguments to deny the prohibition of corporal corporels4.
The European Court has rendered the decisive judgment A v. United Kingdom in 1998, its first decision on parental corporal punishment and one of the few cases brought before the Court by a mineur5 complainant. "A", a young English, had been beaten by his stepfather kicked cane, originally of bruises. The father-in-law was prosecuted but acquitted, citing defence the common law and the concept of "reasonable chastisement".
The European Court decided that the boy did not suffer degrading punishment law had been violated. Moreover, the United Kingdom was responsible for because his law, which allows "reasonable punishment", provided protection adapted or effective prevention. The Court ordered the United Kingdom to pay 10,000 pounds sterling to the boy.
The execution of this decision by the authorities of the United Kingdom is always followed by the Committee of Ministers, 10 years more tard6. To date, the country has reviewed the concept of "reasonable chastisement", without to remove it completely. As stated in the Commissioners of the children of the United Kingdom so that a broad alliance of ONG7, with this way of approach, children are even less protection than adults by criminal law against violence.
For its part, the European Committee of social rights (ECSR) said that corporal punishment is inconsistent with human rights standards defined by the Social Charter. He considered that "article 17 [of the Social Charter] requires a prohibition in law of any form of violence against children either in school or in other institutions, in their home or elsewhere.". It also considers that any form of punishment or degrading treatment of children must be prohibited in law, and that this prohibition should be subject to criminal sanctions or civil adéquates8. This prohibition covers all forms of punishment not involving the use of physical force, such as for example to isolate or humiliate a child.
In the consideration of the reports of the Member States in respect of article 17, the Committee raised the issue of the legality of corporal punishment at home, school and other institutions such as day care. In its conclusions on many countries, the European Committee of social rights observed since 2003 a violation of the Social Charter since, corporal punishment is not interdit9.
In 2005, the Committee issued its decisions on a series of collective claims, in the framework of the additional protocol to the Social Charter, filed by the world Organization against torture. In three cases, States did not conform the lack of effective legislation prohibiting corporal punishment. In two other decisions concerning claims against the Italy and the Portugal, the Committee decided that the decisions of the Supreme Court in the countries which had declared illegal corporal punishment were sufficiently consistent with section 1710.
Nevertheless, in 2006, the Supreme Court of the Portugal delivered a judgment tolerant corporal punishment, therefore, setting aside its previous decisions. Another collective claim has been filed and, in a unanimous decision and detailed published in December 2006, the European Committee of social rights concluded: "to comply with article 17, the national law must prohibit and penalize all forms of violence against children, i.e. acts or behaviour likely to affect their physical integrity, their dignity, their development or their psychological well-being."
"The relevant provisions must be sufficiently clear, binding and precise so that the courts can refuse to apply them to violence against children." "In addition, States must act with due diligence to ensure that such violence is eliminated in practice" 11.
Therefore, the European Committee of social rights has shown that it is not enough to simply ban by high-level court judgments: the explicit legislation is necessary, at the same time other educational measures. In 2007, the Portugal has adopted legislation confirming the express prohibition of violence.
Towards the end of corporal punishment inflicted on children worldwide
The global context is conducive to a rapid evolution: the study of the Secretary General of the United Nations on violence inflicted on children, submitted to the General Assembly in October 2006, vehicle the essential message that no violence against children is justifiable and that violence can be avoided. The study calls on all Member States to act quickly to ban all forms of ill-treatment on children - including corporal punishment - by 2009.
"The study should mark a turning point: the end of any justification by adult violence against children, whether sanctioned by"tradition"or disguised as the"discipline".". No compromise is possible when it comes to tackle violence against children. The uniqueness of children - their potential and their vulnerability, their dependence on adults - makes it imperative to protect more - and not least - of the violence.»8.
At present, approximately 23 States have prohibited all corporal punishment, including in the family.
The Committee on the rights of the children of the United Nations consistently recommends the prohibition of all corporal punishment, including in the family, and proposes to carry out campaigns to raise awareness of its negative effects and to encourage
the adoption of positive practices, non-violent to raise and educate the enfants12. Remember that human rights are universal. The United Nations committees following the implementation of other international instruments, including the two International Covenants on Civil and political rights and economic, social and cultural rights, also condemned corporal punishment of children.
The opposition to the ban on corporal punishment came in some countries of minority religious groups, citing texts which, according to them, gives them their right or even the duty of disciplining children by violence. If the freedom of religious belief must be respected, however, these beliefs cannot justify practices against the rights of others, including the respect for the physical integrity and dignity of children.
The main religious communities and respected leaders now argue the prohibition and suppression of violence against children. For example, the World Conference of religions for peace, which brought together over 800 religious leaders adopted a commitment multi-religious to deal with violence against children"in 2006. It appealed to Governments that they "adopt legislation prohibiting all forms of violence against children, including corporal punishment, and guarantee the full rights of children in accordance with the Convention on the rights of the child and other international and regional agreements. "[She invites] to establish appropriate mechanisms to ensure the effective implementation of these rights and to ensure that religious communities is formally associated with these mechanisms" 13.
Towards the end of corporal punishment of children in Europe
Despite the progress made in the fight against corporal punishment, it is indisputable that this form of abuse is a frequency and alarming importance around the world. Statistics show that this evolution is global and affects all children, regardless of their country or their social origin. The prevalence of corporal punishment has been highlighted by investigations in several countries with parents or other responsible and - more - children themselves, to learn more about the motivation of corporal punishment and how they are applied.
In its recommendation 1666 (2004) "Prohibit corporal punishment of children in Europe", the Parliamentary Assembly of the Council of Europe considered that:
"all corporal punishment of children violates their fundamental right to respect for their human dignity and their physical integrity." The maintenance of the legality of corporal punishment in some Member States is a violation of the equally fundamental right of children to protection before the law equal to adults. Need to break the legal of corporal punishment of children and social acceptance. »
This is why, in the above recommendation, the Assembly called for a campaign coordinated and concerted for the total abolition of corporal punishment of children. Recalling the success obtained by the Council of Europe in the abolition of the death penalty, it advocated that be "of Europe, without delay, an area free of corporal punishment for children".
The Committee of Ministers of the Council of Europe encourages the Member States to prohibit corporal punishment more than 20 years. This battle began in 1985 with a recommendation which the preamble states that "defense of the family has the protection of all its members against any form of violence which often arises in his breast". The explanatory report equates the punishment "an evil that must be at least discourage in a first phase by banning it for." "Indeed it is the design even makes lawful corporal punishment of a child, which, on the one hand, opens the way to all the excesses and, on the other hand, makes acceptable third-party marks or the symptoms of corporal punishment." This conviction was repeated in other recommendations in 1990 and 199314.
The Committee of Ministers also stressed the need to undertake a campaign coordinated and concerted for the abolition of violence against children in each Member State. This is why he announced, to achieve this objective, the implementation of a three-year action programme on the theme "children and violence", for goals:
§ to assist Member States to apply international standards to national and local levels, in particular those contained in the Convention on the rights of the child of the United Nations, the Social Charter European and the Convention European on the exercise of the rights of children;
§ by 2008, to propose a comprehensive and consistent series of instruments and methodological guidelines covering all aspects of the question;
§ improve the visibility and impact of the work of the Council of Europe in the matière15.
Prohibition of corporal punishment at the national level
There is rapid and encouraging progress in the 47 States members of the Council of Europe towards the goal of eradicating all corporal punishment of children. Until January 2008, 18 Member States have adopted the ban and at least seven other publicly committed themselves to quickly do the same. In addition, the Italian Supreme Court declared corporal punishment outside the law, however, the corresponding decision is not yet translated by a specific Act. If these States fulfil their commitments, Europe will have traveled more than half of the road to universal prohibition.
European countries which have banned corporal punishment in the legislation:
Germany (2000), Austria (1989), Bulgaria (2000), Cyprus (1994),.
Croatia (1999), Denmark (1997), Spain (2007), Finland (1983).
Greece (2006), Hungary (2004), Iceland (2003), Latvia (1998),
Norway (1987), Netherlands (2007), Portugal (2007),.
Romania (2004), Sweden (1979) and Ukraine (2001).
European countries who are committed to banning it soon:
Estonia, Ireland, Lithuania, Luxembourg.
Czech Republic, Slovakia and Slovenia.
In 2007, the Commissioner wrote to the heads of Government of the Member States whose legislation is not always consistent. In the responses, no State has defended the use of corporal punishment. Seven indicated that of the reforms to ban all of
corporal punishment were underway. Others responded that their current legislation was sufficient, but have shown openness concerning further progress and have considered explicit reform.
If we drop all corporal punishment under the law, is of course not to prosecute and punish more parents, but rather to meet the requirements of human rights by giving children the same protection of their physical integrity and human dignity as adults. It is essential to understand that hitting children is wrong, as well as hitting an adult. Thus confers on a coherent basis for the protection of the child and to promote public education of positive forms of discipline. As attitudes change, it will be less need to launch prosecutions and conduct formal interventions in families to protect children.
In Sweden, the prohibition of corporal punishment had aims to change attitudes towards them, to establish a clear framework for education and the support of parents, and to facilitate early and less intrusive intervention in child protection cases. Public opinion in favour of corporal punishment has declined sharply. In 1965, while a majority of Swedes were for, a recent survey showed that only 6% less than thirty-five years were favourable to the use of even the most mild forms of corporal punishment. Practices have also changed: among those who grew up shortly after the ban, only 3% reported having been slapped by their parents and 1% said he was struck with an object. Mortality rates due to violence are extremely low in Swedish children.
Strong awareness of violence against children in Sweden have increased the number of reports of assault, but at the same time, there fewer prosecutions of parents, less intervention forced on the part of the social workers and fewer children placed in structures of home. The public began to see differently is hitting children, which made it possible in some cases of early support interventions.
As can be expected, it takes more than laws to eradicate corporal punishment. Indeed, it is essential to educate the public continuously, the Act and on the right of the child to be protected, and to encourage positive relationships and non-violent with children particularly. A recommendation of the Committee of Ministers adopted in 2006 defines the positive parenting as a "parental behavior based on the best interests of the child to raise it and to hold accountable, which is non-violent and provides recognition and assistance, by establishing a set of benchmarks promoting its full development" 16.
In 2008, the programme "Building a Europe for and with children" encourage wide European legislative reform, positive parenting and public education by producing information and communication material adapted to the users and designed to serve as resources of campaigns in the 47 Member States.
In the States that are not yet at the stage of total ban, it is important to assure the public that the first objective of the prohibition of corporal punishment within the family is educational and non-punitive. The very existence of the Act shows that it is not acceptable or legal to hit a child as an adult; and the Act allows if necessary to protect children from serious harm. The judicial prosecution of parents and other formal interventions, in opposition with the interventions of support, must be reserved for serious cases. As the Committee on the rights of the child of the United Nations advises:
"The overriding imperative of a legislative revision designed to prohibit corporal punishment against children in their family is prevention: it is to prevent violence against children by changing attitudes and practice, emphasizing the right of children to equal protection and establishing a framework devoid of ambiguity for the protection of the child and the promotion of positive forms."non-violent and participatory education of children. […]
The principle of equal protection of children and adults against the assault, including in the family, does not mean that all cases of corporal punishment administered by parents to their children that are reported should lead to the opening of proceedings against the parents. The principle of de minimis − whether that Act is not interested in the trivial − assaults between adults give rise only in very exceptional judicial action; This same observation would apply to the assault of children. States must develop effective mechanisms of reporting and training. All reports of violence in child should give rise to investigations and protection of the individual against any significant harm, the goal to be to prevent the parents resort to violent, cruel or degrading punishments through of accompanying and support rather than punitive interventions. "17
In the implementation of the ban, it is important to guide all those who work with children and families, and to inform the public continuously to combat the deep-rooted tradition of violent and humiliating discipline.
Conclusions
The principles of human rights needed to remove adult law supposed to hit children. It is therefore a need to prove that other means - positive, few - ensure more effectively the socialization of children. However, research on the harmful effects on physical and psychological corporal punishment applied during childhood and then of the existence and links with other forms of violence, are that justify further – and compelling manner - the prohibition of the practice in question and, consequently, break the vicious circle of violence.
The Commissioner hopes that the States members of the Council of Europe - now a minority - which have not yet reformed their legislation, or who are there are not engaged, will be a priority. Among this minority of countries, a limited number available defences explicit in criminal, civil or common law, affirming the freedom of parents to a certain degree of disciplinary violence. It is of course completely delete these provisions. If the law is silent in other States, the "right" of parents to use corporal punishment is nevertheless assumed. The advice of the Committee on the rights of the child, adopted by the European Committee of social rights, suggest that the express prohibition is necessary to remove any doubt about the fact that the criminal law relating to violence also applies to children, that brutality be qualified of "discipline".
The advent of a Europe without corporal punishment cannot be done without an amendment of national laws and a ban on the practices in question. Any national strategy that tends to the Elimination of corporal punishment must include both short-term measures, including legal reform to prohibit clearly any form of corporal punishment, and longer term measures to influence public opinion and promote ways different and positive to maintain relationships and communicate. Such a strategy must include the following steps:
· review existing legislation to ensure the effective prohibition of all corporal punishment;
· advise parents and professionals who care for children to abandon corporal punishment as a form of discipline at home and in institutions; disseminate information on the legal reforms carried out in other countries to ban corporal punishment, and their positive effects;
· to inform children about their rights, including the right to be treated with respect, through school curricula and the media;
· clearly direct teachers and staff preschool and health, social workers and other professionals leading their role in the prevention of violence and how to respond to concrete situations where there is reason to believe that a child is a victim of child abuse and help;
· conduct research to better understand the extent and the nature of the practice of corporal punishment, as well as to identify groups of children who are particularly exposed.
· offer courses and discussions to form the parents - with the participation of the main interested children - education practices as well as the positive forms and non-violent discipline to practice at home, school and institution.
To implement these measures, it is necessary to educate the members of the political class and other decision makers. NGOs, professional associations and the media are therefore of strategic importance.
The question of corporal punishment had unfortunately tended to lose ground among the priorities of the political class and other adult settings, including the most vigorous defenders of human rights. This is probably the personal nature of the problem: in the world, most adults were struck as children and hit perhaps even, in turn, their own children. The political class, which sees here an unpopular issue, is easier to turn the projector only on extreme forms of violence against children and abuse of children, which is already a popular consensus. Similarly, many policies suspicious especially of interference in the area of the family, has always been regarded as "private".
All these elements are understandable but not condone corporal punishment so far. The non-violent conflict resolution, tolerance and respect for others are teaching by good example. How can we expect children to take human rights seriously and that they build a culture of human rights if the world of adults, not content to persist to correct them, fesser them, slapping them and beat them, goes up to defend these so-called practices "for their good"? Slapping a child is not only a bad example of behavior, it is also a powerful demonstration of disregard for the fundamental rights of smaller and more low than itself.
1 General comments No. 8 of the Committee on the rights of the child of the United Nations on the right of the child to protection against corporal punishment and other cruel or degrading punishment, CRC/C/GC/8, June 2, 2006. http://www.OHCHR.org/English/bodies/CRC/docs/co/CRC.C.GC.8.PDF
2 European Court of the rights of man, Tyrer v. United Kingdom, 1978. All of the judgments of the Court is available on http://hudoc.echr.coe.int/hudoc/
3 European Court of human rights; see including Campbell and Cosans v. United Kingdom, 1982; Y v. United Kingdom, 1992; Costello-Roberts v. United Kingdom, 1993.
4 European commission on the human rights, decision on admissibility, seven individuals v. Sweden, 1982, no. motion. 8811/79; European Court of the human rights, decision on admissibility, Philip Williamson and others v. United Kingdom, 2000; query no.. 55211/00.
5 European Court of human rights, A v. United Kingdom, 1998.
6 Committee of Ministers, supervision of the execution of judgments of the European Court of human rights; the annotated agenda is available on http://www.coe.int/t/cm/humanRights_en.asp.
7 Comments of the Commissioners of children in England, Ireland of the North, Scotland and Wales (May 2007); also of Dame Mary Marsh, Director General of the National Society for the Prevention of cruelty to children and the Alliance "Children are unbeatable! ("Children are unbeatable!"); may, October and November 2007.
8 Conclusions XV-2, Vol. 1, General Introduction.
9 For more details on the process of reporting under the European Social Charter and the revised Social Charter, see http://www.coe.int/t/e/human_rights/esc/3_Reporting_procedure/default.asp#TopOfPage
10 European Committee of social rights, decision No. collective claims. OMCT v. Greece, no. 17/2003. OMCT v. Ireland and no. 18/2003. 21/2003 OMCT v. Belgium. In two other decisions, the Committee held that the decisions of the Supreme Court in Italy and the Portugal were consistent: No.. 19/2003, OMCT v. Italy and no.. 20/2003, OMCT v. Portugal; Another requêté was filed against the Portugal in 2006 - see note 11. For details, see:
http://www.coe.int/t/e/human_rights/ESC/4_collective_complaints/List_of_collective_complaints/default.asp#TopOfPage
11 Claim collective No.. 34/2006, OMCT v. Portugal, decision on the merits, December 2006, paragraphs 19-22)
12. Completeness of the documents of the Committee on the rights of children is available on http://www.ohchr.org/english/bodies/crc/index.htm. For the analysis of the comments of the Committee relating to corporal punishment, see www.OHCHR.org.
13 Declaration on violence against children, approved at the 8th World Assembly of the World Conference of religions for peace held in Kyoto in August 2006.
14. The Committee of Ministers of the Council of Europe recommendations on "violence in the family" (R (85) 4), "social measures concerning violence in the family" (R (90) 2) and "medico-social aspects of the ill-treatment inflicted on children" (R (93) 2). All recommendations are available on http://www.coe.int/t/E/Committee_of_Ministers/Home/Documents/
15 Reply adopted by the Committee of Ministers to recommendation 1666 (2004) of the Parliamentary Assembly, April 20, 2005, CM/AS (2005) final Rec1666.
Recommendation 16 (2006) 19 of the Committee of Ministers on policy to support positive parenting, December 13, 2006.
TABLE OF CONTENTS
Introduction
Definition of corporal punishment
Protection against corporal punishment is a matter of human rights
Towards the end of corporal punishment inflicted on children worldwide
Towards the end of corporal punishment of children in Europe
Prohibition of corporal punishment at the national level
Conclusions
--------------------------------------------------------------------------------
Thematic documents of the Commissioner
Thematic papers are sponsored and published by the Commissioner for human rights to contribute to the debate or to advance thinking on an important issue and the human rights news. All the opinions expressed in these documents of experts not reflect necessarily the position of the Commissioner. Thematic papers are available on the website of the Commissioner: www.commissioner.coe.int
--------------------------------------------------------------------------------
Introduction
The majority of the Member States of the Council of Europe is committed to put an end to all corporal punishment of children. To date, the total ban in law has been adopted by 18 Member States, and at least 7 others have publicly promised to soon do the same.
Human Rights Commissioner has welcomed these developments and invited other countries to prohibit and eradicate all forms of corporal punishment of children. This thematic file contains general information and explanations on the measures already taken by the European Court and other international and European human rights mechanisms.
* * *
The problem is rooted and serious. In Europe, children are daily bondage, corrected, slapped, shaken, pinched, beaten, kicked, punched, stick, whip, belt, beaten and martyred by adults, primarily by those who have the most confidence.
Such violence may be an act of punishment or impulsive response of a parent or a teacher angry. In all cases, they constitute a violation of human rights. Respect for human dignity and the right to physical integrity are universal principles. Yet, the fact of hitting a child or impose any other humiliating treatment is accepted socially and in most countries legally world.
Corporal punishment of children is often inhumane or degrading; and systematically violates the physical integrity of the persons concerned, reflects a lack of respect for their human dignity and undermines self-esteem. Moreover, the exceptions regarding children in some laws against violence, which would be otherwise applicable to all, are contrary to the principle of equal protection before the law.
The legal concepts such as "reasonable chastisement" and "lawful correction" come from the fact that the child is seen as the property of his parents. It is the modern equivalent of the laws in force one or two centuries ago which allowed masters to beat their slaves or servants, as well as the husbands to beat their wives. These "rights" are based on power imposed by the highest to lowest, and are exercised by the violence and humiliation.
It is recently that the children were legally protected in the same way that adults against deliberate violence, protection that we, adults, are generally for granted. How is it possible that the children, that are recognized particularly vulnerable to infringements of physical and mental because of their stage of development and their small size, less protection against violence in their body, their mind and their dignity fragile?
The fight against the legal acceptance and social violence, including that suffered daily in the home, was a fundamental element of the struggle for the equality of status between women and men. It goes same for children: what brand of their depreciation more striking than the idea of adults that they have the "right", and even the duty, to hit children?
Definition of corporal punishment
The Committee on the rights of the child of the Nations System1 defines corporal punishment in these terms:
"any punishment in which physical force is used with the intent to cause a degree of pain or discomfort, even slight." Most often, this involves hitting ("correct", "smack", "fesser") a child of the hand or with an object: whip, stick, belt, shoe, wooden spoon, etc. But it can also be, for example, to give him kicking, shaking or the drop, the scratching, pinching the, the bite, to him draw hair or to hit him on the ears, to force him to stay in an uncomfortable position, to burning, scalding him, to ingest force such or such thing (for example by him washing the mouth with SOAP or by forcing) (to swallow red peppers). In the opinion of the Committee, the punishment is invariably degrading. In addition, there are other non-physical forms of punishment but also cruel, degrading and therefore incompatible with the Convention. This involves, for example, lowering the child, to humiliate, to denigrate the, to make a scapegoat, to threaten it, the terrorizing or the ridicule. ».”
Protection against corporal punishment is a matter of human rights
Today, it is called also human rights for children, which are therefore more considered "half" - people with a limited number of rights. This evolution reflects a major change in attitude which made possible the international treaties such as the United Nations Convention on the rights of children.
This convention is the most ratified human rights, since it has been by all the States members of the Council of Europe. It is the first international instrument of the human rights binding on specifically the protection of children against violence.
Article 19 of the Convention on the rights of the child provides that States shall take:
"all legislative, administrative, social and educational measures to protect the child against all forms of violence, interference or brutality physical or mental, of abandonment or negligence, ill-treatment or exploitation, including sexual violence, while it is under the custody of his parents or of one of them, of his or her legal representatives or any other person to whom it is entrusted.".
Other articles strengthen the right of the child to physical integrity and the protection of its dignity. The preamble asserts that in reason precisely his "lack of physical and intellectual maturity", the child needs "protection and special care," including of appropriate legal protection. Article 37 requires the States parties to ensure that "no child not be subjected to torture or punishment or cruel, inhuman or degrading treatment or punishment."
The Council of Europe human rights mechanisms have denounced for the first time the corporal punishment of children 30 years ago. In 1978, the European Court of (ECtHR) human rights held that the conviction of lashes of a young man of 15
years violated his right to protection from corporal dégradants2. Subsequently, decisions taken in the 1980s and early 1990s have condemned corporal punishment in schools, first in public schools, then in the private schools in the Kingdom.3 Kingdom.
Other important decisions of the European Commission of the rights of man and of the European Court recalled that the rights to private or family life, freedom or religious belief were not valid arguments to deny the prohibition of corporal corporels4.
The European Court has rendered the decisive judgment A v. United Kingdom in 1998, its first decision on parental corporal punishment and one of the few cases brought before the Court by a mineur5 complainant. "A", a young English, had been beaten by his stepfather kicked cane, originally of bruises. The father-in-law was prosecuted but acquitted, citing defence the common law and the concept of "reasonable chastisement".
The European Court decided that the boy did not suffer degrading punishment law had been violated. Moreover, the United Kingdom was responsible for because his law, which allows "reasonable punishment", provided protection adapted or effective prevention. The Court ordered the United Kingdom to pay 10,000 pounds sterling to the boy.
The execution of this decision by the authorities of the United Kingdom is always followed by the Committee of Ministers, 10 years more tard6. To date, the country has reviewed the concept of "reasonable chastisement", without to remove it completely. As stated in the Commissioners of the children of the United Kingdom so that a broad alliance of ONG7, with this way of approach, children are even less protection than adults by criminal law against violence.
For its part, the European Committee of social rights (ECSR) said that corporal punishment is inconsistent with human rights standards defined by the Social Charter. He considered that "article 17 [of the Social Charter] requires a prohibition in law of any form of violence against children either in school or in other institutions, in their home or elsewhere.". It also considers that any form of punishment or degrading treatment of children must be prohibited in law, and that this prohibition should be subject to criminal sanctions or civil adéquates8. This prohibition covers all forms of punishment not involving the use of physical force, such as for example to isolate or humiliate a child.
In the consideration of the reports of the Member States in respect of article 17, the Committee raised the issue of the legality of corporal punishment at home, school and other institutions such as day care. In its conclusions on many countries, the European Committee of social rights observed since 2003 a violation of the Social Charter since, corporal punishment is not interdit9.
In 2005, the Committee issued its decisions on a series of collective claims, in the framework of the additional protocol to the Social Charter, filed by the world Organization against torture. In three cases, States did not conform the lack of effective legislation prohibiting corporal punishment. In two other decisions concerning claims against the Italy and the Portugal, the Committee decided that the decisions of the Supreme Court in the countries which had declared illegal corporal punishment were sufficiently consistent with section 1710.
Nevertheless, in 2006, the Supreme Court of the Portugal delivered a judgment tolerant corporal punishment, therefore, setting aside its previous decisions. Another collective claim has been filed and, in a unanimous decision and detailed published in December 2006, the European Committee of social rights concluded: "to comply with article 17, the national law must prohibit and penalize all forms of violence against children, i.e. acts or behaviour likely to affect their physical integrity, their dignity, their development or their psychological well-being."
"The relevant provisions must be sufficiently clear, binding and precise so that the courts can refuse to apply them to violence against children." "In addition, States must act with due diligence to ensure that such violence is eliminated in practice" 11.
Therefore, the European Committee of social rights has shown that it is not enough to simply ban by high-level court judgments: the explicit legislation is necessary, at the same time other educational measures. In 2007, the Portugal has adopted legislation confirming the express prohibition of violence.
Towards the end of corporal punishment inflicted on children worldwide
The global context is conducive to a rapid evolution: the study of the Secretary General of the United Nations on violence inflicted on children, submitted to the General Assembly in October 2006, vehicle the essential message that no violence against children is justifiable and that violence can be avoided. The study calls on all Member States to act quickly to ban all forms of ill-treatment on children - including corporal punishment - by 2009.
"The study should mark a turning point: the end of any justification by adult violence against children, whether sanctioned by"tradition"or disguised as the"discipline".". No compromise is possible when it comes to tackle violence against children. The uniqueness of children - their potential and their vulnerability, their dependence on adults - makes it imperative to protect more - and not least - of the violence.»8.
At present, approximately 23 States have prohibited all corporal punishment, including in the family.
The Committee on the rights of the children of the United Nations consistently recommends the prohibition of all corporal punishment, including in the family, and proposes to carry out campaigns to raise awareness of its negative effects and to encourage
the adoption of positive practices, non-violent to raise and educate the enfants12. Remember that human rights are universal. The United Nations committees following the implementation of other international instruments, including the two International Covenants on Civil and political rights and economic, social and cultural rights, also condemned corporal punishment of children.
The opposition to the ban on corporal punishment came in some countries of minority religious groups, citing texts which, according to them, gives them their right or even the duty of disciplining children by violence. If the freedom of religious belief must be respected, however, these beliefs cannot justify practices against the rights of others, including the respect for the physical integrity and dignity of children.
The main religious communities and respected leaders now argue the prohibition and suppression of violence against children. For example, the World Conference of religions for peace, which brought together over 800 religious leaders adopted a commitment multi-religious to deal with violence against children"in 2006. It appealed to Governments that they "adopt legislation prohibiting all forms of violence against children, including corporal punishment, and guarantee the full rights of children in accordance with the Convention on the rights of the child and other international and regional agreements. "[She invites] to establish appropriate mechanisms to ensure the effective implementation of these rights and to ensure that religious communities is formally associated with these mechanisms" 13.
Towards the end of corporal punishment of children in Europe
Despite the progress made in the fight against corporal punishment, it is indisputable that this form of abuse is a frequency and alarming importance around the world. Statistics show that this evolution is global and affects all children, regardless of their country or their social origin. The prevalence of corporal punishment has been highlighted by investigations in several countries with parents or other responsible and - more - children themselves, to learn more about the motivation of corporal punishment and how they are applied.
In its recommendation 1666 (2004) "Prohibit corporal punishment of children in Europe", the Parliamentary Assembly of the Council of Europe considered that:
"all corporal punishment of children violates their fundamental right to respect for their human dignity and their physical integrity." The maintenance of the legality of corporal punishment in some Member States is a violation of the equally fundamental right of children to protection before the law equal to adults. Need to break the legal of corporal punishment of children and social acceptance. »
This is why, in the above recommendation, the Assembly called for a campaign coordinated and concerted for the total abolition of corporal punishment of children. Recalling the success obtained by the Council of Europe in the abolition of the death penalty, it advocated that be "of Europe, without delay, an area free of corporal punishment for children".
The Committee of Ministers of the Council of Europe encourages the Member States to prohibit corporal punishment more than 20 years. This battle began in 1985 with a recommendation which the preamble states that "defense of the family has the protection of all its members against any form of violence which often arises in his breast". The explanatory report equates the punishment "an evil that must be at least discourage in a first phase by banning it for." "Indeed it is the design even makes lawful corporal punishment of a child, which, on the one hand, opens the way to all the excesses and, on the other hand, makes acceptable third-party marks or the symptoms of corporal punishment." This conviction was repeated in other recommendations in 1990 and 199314.
The Committee of Ministers also stressed the need to undertake a campaign coordinated and concerted for the abolition of violence against children in each Member State. This is why he announced, to achieve this objective, the implementation of a three-year action programme on the theme "children and violence", for goals:
§ to assist Member States to apply international standards to national and local levels, in particular those contained in the Convention on the rights of the child of the United Nations, the Social Charter European and the Convention European on the exercise of the rights of children;
§ by 2008, to propose a comprehensive and consistent series of instruments and methodological guidelines covering all aspects of the question;
§ improve the visibility and impact of the work of the Council of Europe in the matière15.
Prohibition of corporal punishment at the national level
There is rapid and encouraging progress in the 47 States members of the Council of Europe towards the goal of eradicating all corporal punishment of children. Until January 2008, 18 Member States have adopted the ban and at least seven other publicly committed themselves to quickly do the same. In addition, the Italian Supreme Court declared corporal punishment outside the law, however, the corresponding decision is not yet translated by a specific Act. If these States fulfil their commitments, Europe will have traveled more than half of the road to universal prohibition.
European countries which have banned corporal punishment in the legislation:
Germany (2000), Austria (1989), Bulgaria (2000), Cyprus (1994),.
Croatia (1999), Denmark (1997), Spain (2007), Finland (1983).
Greece (2006), Hungary (2004), Iceland (2003), Latvia (1998),
Norway (1987), Netherlands (2007), Portugal (2007),.
Romania (2004), Sweden (1979) and Ukraine (2001).
European countries who are committed to banning it soon:
Estonia, Ireland, Lithuania, Luxembourg.
Czech Republic, Slovakia and Slovenia.
In 2007, the Commissioner wrote to the heads of Government of the Member States whose legislation is not always consistent. In the responses, no State has defended the use of corporal punishment. Seven indicated that of the reforms to ban all of
corporal punishment were underway. Others responded that their current legislation was sufficient, but have shown openness concerning further progress and have considered explicit reform.
If we drop all corporal punishment under the law, is of course not to prosecute and punish more parents, but rather to meet the requirements of human rights by giving children the same protection of their physical integrity and human dignity as adults. It is essential to understand that hitting children is wrong, as well as hitting an adult. Thus confers on a coherent basis for the protection of the child and to promote public education of positive forms of discipline. As attitudes change, it will be less need to launch prosecutions and conduct formal interventions in families to protect children.
In Sweden, the prohibition of corporal punishment had aims to change attitudes towards them, to establish a clear framework for education and the support of parents, and to facilitate early and less intrusive intervention in child protection cases. Public opinion in favour of corporal punishment has declined sharply. In 1965, while a majority of Swedes were for, a recent survey showed that only 6% less than thirty-five years were favourable to the use of even the most mild forms of corporal punishment. Practices have also changed: among those who grew up shortly after the ban, only 3% reported having been slapped by their parents and 1% said he was struck with an object. Mortality rates due to violence are extremely low in Swedish children.
Strong awareness of violence against children in Sweden have increased the number of reports of assault, but at the same time, there fewer prosecutions of parents, less intervention forced on the part of the social workers and fewer children placed in structures of home. The public began to see differently is hitting children, which made it possible in some cases of early support interventions.
As can be expected, it takes more than laws to eradicate corporal punishment. Indeed, it is essential to educate the public continuously, the Act and on the right of the child to be protected, and to encourage positive relationships and non-violent with children particularly. A recommendation of the Committee of Ministers adopted in 2006 defines the positive parenting as a "parental behavior based on the best interests of the child to raise it and to hold accountable, which is non-violent and provides recognition and assistance, by establishing a set of benchmarks promoting its full development" 16.
In 2008, the programme "Building a Europe for and with children" encourage wide European legislative reform, positive parenting and public education by producing information and communication material adapted to the users and designed to serve as resources of campaigns in the 47 Member States.
In the States that are not yet at the stage of total ban, it is important to assure the public that the first objective of the prohibition of corporal punishment within the family is educational and non-punitive. The very existence of the Act shows that it is not acceptable or legal to hit a child as an adult; and the Act allows if necessary to protect children from serious harm. The judicial prosecution of parents and other formal interventions, in opposition with the interventions of support, must be reserved for serious cases. As the Committee on the rights of the child of the United Nations advises:
"The overriding imperative of a legislative revision designed to prohibit corporal punishment against children in their family is prevention: it is to prevent violence against children by changing attitudes and practice, emphasizing the right of children to equal protection and establishing a framework devoid of ambiguity for the protection of the child and the promotion of positive forms."non-violent and participatory education of children. […]
The principle of equal protection of children and adults against the assault, including in the family, does not mean that all cases of corporal punishment administered by parents to their children that are reported should lead to the opening of proceedings against the parents. The principle of de minimis − whether that Act is not interested in the trivial − assaults between adults give rise only in very exceptional judicial action; This same observation would apply to the assault of children. States must develop effective mechanisms of reporting and training. All reports of violence in child should give rise to investigations and protection of the individual against any significant harm, the goal to be to prevent the parents resort to violent, cruel or degrading punishments through of accompanying and support rather than punitive interventions. "17
In the implementation of the ban, it is important to guide all those who work with children and families, and to inform the public continuously to combat the deep-rooted tradition of violent and humiliating discipline.
Conclusions
The principles of human rights needed to remove adult law supposed to hit children. It is therefore a need to prove that other means - positive, few - ensure more effectively the socialization of children. However, research on the harmful effects on physical and psychological corporal punishment applied during childhood and then of the existence and links with other forms of violence, are that justify further – and compelling manner - the prohibition of the practice in question and, consequently, break the vicious circle of violence.
The Commissioner hopes that the States members of the Council of Europe - now a minority - which have not yet reformed their legislation, or who are there are not engaged, will be a priority. Among this minority of countries, a limited number available defences explicit in criminal, civil or common law, affirming the freedom of parents to a certain degree of disciplinary violence. It is of course completely delete these provisions. If the law is silent in other States, the "right" of parents to use corporal punishment is nevertheless assumed. The advice of the Committee on the rights of the child, adopted by the European Committee of social rights, suggest that the express prohibition is necessary to remove any doubt about the fact that the criminal law relating to violence also applies to children, that brutality be qualified of "discipline".
The advent of a Europe without corporal punishment cannot be done without an amendment of national laws and a ban on the practices in question. Any national strategy that tends to the Elimination of corporal punishment must include both short-term measures, including legal reform to prohibit clearly any form of corporal punishment, and longer term measures to influence public opinion and promote ways different and positive to maintain relationships and communicate. Such a strategy must include the following steps:
· review existing legislation to ensure the effective prohibition of all corporal punishment;
· advise parents and professionals who care for children to abandon corporal punishment as a form of discipline at home and in institutions; disseminate information on the legal reforms carried out in other countries to ban corporal punishment, and their positive effects;
· to inform children about their rights, including the right to be treated with respect, through school curricula and the media;
· clearly direct teachers and staff preschool and health, social workers and other professionals leading their role in the prevention of violence and how to respond to concrete situations where there is reason to believe that a child is a victim of child abuse and help;
· conduct research to better understand the extent and the nature of the practice of corporal punishment, as well as to identify groups of children who are particularly exposed.
· offer courses and discussions to form the parents - with the participation of the main interested children - education practices as well as the positive forms and non-violent discipline to practice at home, school and institution.
To implement these measures, it is necessary to educate the members of the political class and other decision makers. NGOs, professional associations and the media are therefore of strategic importance.
The question of corporal punishment had unfortunately tended to lose ground among the priorities of the political class and other adult settings, including the most vigorous defenders of human rights. This is probably the personal nature of the problem: in the world, most adults were struck as children and hit perhaps even, in turn, their own children. The political class, which sees here an unpopular issue, is easier to turn the projector only on extreme forms of violence against children and abuse of children, which is already a popular consensus. Similarly, many policies suspicious especially of interference in the area of the family, has always been regarded as "private".
All these elements are understandable but not condone corporal punishment so far. The non-violent conflict resolution, tolerance and respect for others are teaching by good example. How can we expect children to take human rights seriously and that they build a culture of human rights if the world of adults, not content to persist to correct them, fesser them, slapping them and beat them, goes up to defend these so-called practices "for their good"? Slapping a child is not only a bad example of behavior, it is also a powerful demonstration of disregard for the fundamental rights of smaller and more low than itself.
1 General comments No. 8 of the Committee on the rights of the child of the United Nations on the right of the child to protection against corporal punishment and other cruel or degrading punishment, CRC/C/GC/8, June 2, 2006. http://www.OHCHR.org/English/bodies/CRC/docs/co/CRC.C.GC.8.PDF
2 European Court of the rights of man, Tyrer v. United Kingdom, 1978. All of the judgments of the Court is available on http://hudoc.echr.coe.int/hudoc/
3 European Court of human rights; see including Campbell and Cosans v. United Kingdom, 1982; Y v. United Kingdom, 1992; Costello-Roberts v. United Kingdom, 1993.
4 European commission on the human rights, decision on admissibility, seven individuals v. Sweden, 1982, no. motion. 8811/79; European Court of the human rights, decision on admissibility, Philip Williamson and others v. United Kingdom, 2000; query no.. 55211/00.
5 European Court of human rights, A v. United Kingdom, 1998.
6 Committee of Ministers, supervision of the execution of judgments of the European Court of human rights; the annotated agenda is available on http://www.coe.int/t/cm/humanRights_en.asp.
7 Comments of the Commissioners of children in England, Ireland of the North, Scotland and Wales (May 2007); also of Dame Mary Marsh, Director General of the National Society for the Prevention of cruelty to children and the Alliance "Children are unbeatable! ("Children are unbeatable!"); may, October and November 2007.
8 Conclusions XV-2, Vol. 1, General Introduction.
9 For more details on the process of reporting under the European Social Charter and the revised Social Charter, see http://www.coe.int/t/e/human_rights/esc/3_Reporting_procedure/default.asp#TopOfPage
10 European Committee of social rights, decision No. collective claims. OMCT v. Greece, no. 17/2003. OMCT v. Ireland and no. 18/2003. 21/2003 OMCT v. Belgium. In two other decisions, the Committee held that the decisions of the Supreme Court in Italy and the Portugal were consistent: No.. 19/2003, OMCT v. Italy and no.. 20/2003, OMCT v. Portugal; Another requêté was filed against the Portugal in 2006 - see note 11. For details, see:
http://www.coe.int/t/e/human_rights/ESC/4_collective_complaints/List_of_collective_complaints/default.asp#TopOfPage
11 Claim collective No.. 34/2006, OMCT v. Portugal, decision on the merits, December 2006, paragraphs 19-22)
12. Completeness of the documents of the Committee on the rights of children is available on http://www.ohchr.org/english/bodies/crc/index.htm. For the analysis of the comments of the Committee relating to corporal punishment, see www.OHCHR.org.
13 Declaration on violence against children, approved at the 8th World Assembly of the World Conference of religions for peace held in Kyoto in August 2006.
14. The Committee of Ministers of the Council of Europe recommendations on "violence in the family" (R (85) 4), "social measures concerning violence in the family" (R (90) 2) and "medico-social aspects of the ill-treatment inflicted on children" (R (93) 2). All recommendations are available on http://www.coe.int/t/E/Committee_of_Ministers/Home/Documents/
15 Reply adopted by the Committee of Ministers to recommendation 1666 (2004) of the Parliamentary Assembly, April 20, 2005, CM/AS (2005) final Rec1666.
Recommendation 16 (2006) 19 of the Committee of Ministers on policy to support positive parenting, December 13, 2006.
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