It is a common occurrence to see a parent smacking/slapping a young child on the thigh or the arm to quiet him/her or shout at him/ her to stop doing something or even forcefully dragging the “rebel” child. Is this acceptable? What if such actions were committed not on children but on other adults? We would rightfully declare such situations as domestic violence or assault. So why is it okay for adults to slap or give violent punishments to children but it is not acceptable when the same is done to adults?
Physical punishment meted out to children is termed as corporal punishment. This can be branched out into three categories: parental or domestic; school; and judicial corporal punishment.
Parental corporal punishment is the one handed down by parents or guardians while school corporal punishment is given by teachers. Judicial corporal punishment is ordered by the courts of law.
All forms of corporal punishment are prohibited.
Article 28(2) of the United Nations Convention on the Rights of the Child (UNCRC), to which Malta is a party, states that, school discipline should be “...administered in a manner consistent with the child’s human dignity...” and article 37(a) of the same Convention states that “no child shall be subjected to torture or other cruel, inhuman or degrading treatment or punishment”. Article 11(5) of the African Charter on the Rights and Welfare of the Child is similar to the UNCRC’s article 28(2) with the addition of “parental discipline” alongside school discipline.
The European Convention of Human Rights, which applies to everyone, including children, states that “No one shall be subjected to torture or to inhuman or degrading treatment or punishment”. Therefore, any sort of punishment deemed to be degrading, whether inflicted by the courts of law, a school or parents, is prohibited.
But, how does one define “degrading”? What can be degrading for children may not be degrading for adults. And what for adults may not be considered inhuman or degrading it may be so for children.
In “Ireland vs The United Kingdom” (January 18, 1978), the European Court of Human Rights decreed that the test of minimum level of severity takes into account “all the circumstances of the case, such as the duration of the treatment, its physical or mental effects and, in some cases, the sex, age, and state of health of the victim”. In fact, in “Tyrer vs The United Kingdom” (April 25, 1978), where a 15-year-old boy was given three strokes of the birch as a form of judicial punishment, the European Court of Human Rights held that the punishment amounted to being degrading. The court went on to note that judicial physical punishment was prohibited throughout the other member states of the Council of Europe.
The United Nations Committee on the Rights of the Child, in its General Comment No. 8 (June 2, 2006) defined corporal punishment as “any punishment in which physical force is used and intended to cause some degree of pain or discomfort, however light. Most involve hitting (smacking, slapping, spanking) children, with the hand or with an implement – whip, stick, belt, shoe, wooden spoon, etc. But it can also involve kicking, shaking or pushing children, scratching, pinching, biting, pulling hair or boxing ears, forcing children to stay in uncomfortable positions, burning, scalding or forced ingestion (for example, washing children’s mouths out with soap or forcing them to swallow hot spices). In the committee’s view, corporal punishment is invariably degrading.
“In addition, there are other non-physical forms of punishment that are also cruel and degrading and, thus, incompatible with the convention. These include, for example, punishment which belittles, humiliates, denigrates, makes scapegoats of, threatens, scares or ridicules the child.”
Therefore, this broad definition of corporal punishment includes the actions which, in an adult’s eyes, seem harmless and can often be witnessed on the street.
As can be seen from the above definition, corporal punishment can be physical and/or psychological. Moreover, corporal punishment is not gauged by its severity because even a “light” punishment, if done with the intent to cause pain, is tantamount to corporal punishment. In the past, washing children’s mouths with soap or giving them the cane was a common occurrence but, with time, it was realised that such punishments amounted to cruel and degrading treatment. Nowadays, smacking or slapping children is still a common practice. Such treatment is denounced by the United Nations Committee on the Rights of the Child and, therefore, should be stopped because it humiliates children, whether it is done in private or in public.
The author is a lawyer with a special interest in family and child law.
annmarie.mangion@gmail.com