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Corporal punishment has been a highly debated issue throughout legal history. There is no current legislation that makes parents smacking their children illegal. However guidelines and restrictions on corporal punishment have been created by UK Government to advise parents how to smack their children. Essentially, these guidelines and restrictions have been controversial and highly criticised; on the contrary UK Government has been praised for not entering state paternalism. This report will highlight the history of corporal punishment using a children’s rights perspective, additionally draw a conclusion after evaluating children’s rights to whether or not it should be made illegal for parents to smack their children.
The European Convention on Human Rights is incorporated with the Human Rights Act 1998. Article 3 of the human rights discusses the protection of cruel and inhuman treatment against any human being in the UK although there is no specific mention of corporal punishment. The UN Committee constantly advise the UK Government against corporal punishment, and the UK Government has responded towards the advice in 1995, 2002, and 2008. However no legislation has been created to ban corporal punishment. ‘In its Concluding Observations the UN Committee said that it deeply regretted that the State party persists in retaining the defence of “reasonable chastisement” and has
taken no significant action towards prohibiting all corporal punishment of children in the
family … governmental proposals to limit rather than to remove the 'reasonable chastisement' defence do not comply with the principles and provisions of the Convention since they constitute a serious violation of the dignity of the child. Moreover, they suggest
that some forms of corporal punishment are acceptable and therefore undermine
educational measures to promote positive and non-violent discipline.' www.publications.parliament.uk
In the UK corporal punishment was banned in state schools in 1986, most Local Authorities banned corporal punishment from any services provided to children, i.e. childminders, foster carers and nurseries. In 1998 the ban was extended to private schools, giving only parents the rights to physically punish their own children. A public case named the Sutton Judgement 1993 challenged the ban on corporal punishment. A childminder argue that she has parental permission to physically punish the child. This case consequently changed the law to childminders having rights to corporal punishment but essentially have to of had parents’ permission to do so. Labour government when in power changed this judgement and introduced Childminders Regulations 2003 which in turn banned all forms of corporal punishment inflicted by childminders.
State Paternalism is the belief that as a society we have a duty to protect children against adults, whether that is strangers or their own families. It believes that the child's welfare is paramount and places the ability of Social Services and the courts to act in the best interest for the child. In addition, state paternalism places fewer rights on parental rights and that parents are merely in trust of their children. In article 5 of UK Government legalisation on children's rights upholds the responsibility and duty of parents to guide and direct their children. Therefore, parents have the right to guide and direct their children the way they think is best, even if they use corporal punishment as a form of discipline. Taking away the rights of parents to use smacking as a form of discipline is somehow taking away moral beliefs of parents who smack their children and parenting rights. Why is it best for the UK Government to ban parents smacking their children?
Following the death of Victoria Climbe case, Lord Laming recommended a 'ban on smacking' as Victoria climbe aunt partner argued against prosecution that it was his parental right to discipline the child and the horrid injuries caused top Victoria Climbe was discipline taken a bit too far. Cases like these has also lead Child Protection argue against smacking children, as the line of discipline can be taken out of context alternately causing abuse to children. Consequently after the death of Victoria Climbe the Children’s Act 2004 limits the grounds for parents to argue or plea for using smacking as a form of discipline that causes any grievous body harm to children. This defence can no longer uphold in today’s justice system.
'Anticipating our discussion below of the defence of 'reasonable chastisement', we note that records are simply not available to ascertain the extent to which the defence of reasonable chastisement has either been invoked in cases of severe physical assault on children or against charges relating to a 'loving smack'. In a debate in Westminster Hall on youth policy on 23 January 2003, the Minister for Health stated that the Attorney General was keeping the defence “under review.”
In order to provide the evidence required to assess the strength of the arguments for and against retaining the defence of reasonable chastisement we recommend that statistics record whether the defence of reasonable chastisement was invoked in cases of violence against children brought to the courts.’ www.publications.parliament.uk
The Children's Act 2004 also provides guidelines for parents on how to smack their children appropriately and responsibly in hopes to teach parents about the right way to physically punish a child. This includes how and where to smack a child on their body. Essentially this legislation proves the support of corporal punishment from the UK Government and upholds the rights of parents to smack their children, although this conflicts with the UN Committee advice against corporal punishment.
The report by the International Society for the Prevention of Child Abuse (Daro, 2006), which drew on a survey of key informants from 72 countries across Africa, America, Asia Europe and Oceania, revealed that only 48.6% of all informants felt that physical punishment is considered abusive in their countries. In addition physical punishment is intension to make a child feel discomfit whether it's mild or grievous. 'Another word associated with physical punishment is violence, variously defined with emphasis either on causing pain/injury or on legality.' B. J. Saunders, C.Goddard. (2010),
The arguments for corporal punishment to remain the rights of the parents have still existed. Many research conducted results in the public keeping the right to physically punish their children. Mori Poll for the UK Government in 2000 surveyed adults only and concluded that '88% believed it was sometimes necessary to smack a child.' www.famyouth.org.uk
It has been argued that one advantage that corporal punishment has over other forms of punishment is that it punishes only the guilty. Members of a family do not stand in isolation from one another. They are affected by what each of the others does and by what happens to each, if someone in the family does wrong or suffers some harm, this negatively affects the others. To a certain extent these 'spill-over' are an expected and legitimate part of family life.' B, David. (1998)
In conclusion, creating a guideline and restrictions on corporal punishment allows the court and judge to decide whether a child received abuse or physical punishment from their parents. The lack of legislation against corporal punishment means that parents who are charged with physical abuse to their children can result in many conclusions, as it all depends on what the jury think and not breaking current legislation. This can cause allow some parents who abuse their children to get away with such a crime.
In addition, parents who decide to physically punish their children as a form of discipline depends highly on their emotional state and living conditions. Parents emotions can vary each day, and a parent may decide to physically punish their child when they are upset but may choose to not physically punish their child with a stable emotional state. For these reasons it is clear that looking at corporal punishment from a child's perspective, parents should not be allowed to physically punish their children. Legislation that makes corporal punishment illegal can help protect children from various abuse; in addition there are more effective methods of discipline then corporal punishment. The UK Government should make these be the guidelines and restrictions for parents to discipline their children.
References
B. J. Saunders, C.Goddard. (2010), Physical Punishment in Childhood: The Rights of the Child. Wiley Blackwell (8 Jan 2010)
http://www.publications.parliament.uk/pa/jt200203/jtselect/jtrights/117/117.pdf
B, David. (1998) Corporal punishment, Social Theory and Practice, vol.24 no.2,
http://www.famyouth.org.uk/pdfs/reasonableapproachcolour.pdf
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