Reasonable Chastisement Research Articles

Systematic child abuse incidents in a children’s residential home in Hong Kong: regulatory and criminal law reform proposals

PurposeThe paper aims to recommend legal and regulatory reforms to better prevent child abuse in childcare institutions in Hong Kong.Design/methodology/approachA summary of investigation report and news reports are referred to in describing the abuse incidents which occurred in a children’s residential home. Routine Activity Theory (RAT) is used as the framework for identifying the causes. Local and overseas legislation, regulations, case law, and policies are analysed to provide recommendations for reforms.FindingsThere are systematic failures such as workload issues, inadequate supervision, and the absence of continuing professional development (CPD) that contributed to the incidents. The regulations governing the operation of childcare centres and criminal laws against child abuse are long overdue for an update in Hong Kong. On the institutional side, this paper recommends enacting regulations that mandate CPD, lower the staff-to-child ratio, and strengthen the Social Welfare Department’s (SWD) supervisory powers over childcare centres. From the criminal law perspective, it is recommended that “reasonable chastisement” be abolished as a defence of corporal punishment, and that there be new offences for failure to report suspected child abuse incidents and causing or allowing the death/serious harm of a child.Originality/valueThe child abuse incidents, occurring in a childcare institution, have drawn wide public concern. Reform is required to protect vulnerable children and regain public confidence.

The normative nature of corporal punishment in Australia

AbstractCorporal punishment (CP) is the most common and socially normative form of violence perpetrated against children and is legal in the home and some other settings in Australia. CP was made a common practice through its introduction by European settlers and Christian missionaries during colonisation. Furthermore, the defence of reasonable chastisement became part of the Australian common law in 1860 and is still used in some jurisdictions. Other jurisdictions have enacted criminal laws that have entrenched the defence in legislation. This article gives a brief historical overview of the origin of CP in the English common law, the defence of reasonable chastisement and how these concepts came to be entrenched in Australian law and culture. Moreover, this contribution examines the recognition of children's rights in international law and the significant global impact this has had in elevating the status of children. Then, this article analyses the current legal framework and the permissiveness of CP in Australian states and territories. Consequently, it is argued that states and territories ought to repeal legislation that permits CP, and all jurisdictions should insert a positive statement into civil laws that CP is no longer acceptable as a disciplinary measure.

Achieving Equal Protection for Children in Scotland: A Narrative Account

In 2019, the Scottish Parliament passed a Bill that repealed the ‘reasonable chastisement’ defence in Scotland. This article provides a narrative account of this momentous reform. It describes the history of Scotland’s law and gives an overview of a civil society campaign, coordinated by children’s organisations, to secure legal reform. It provides reflections on the campaign, setting out key learning points, including the importance of language and framing; the use of evidence; and the strength of broad coalitions. This account is offered to help inform similar campaigns to provide all children with protection from physical harm.

“Why didn’t we do this years ago?”: Ireland’s Journey to Prohibiting All Corporal Punishment of Children

In December 2015, Ireland became the 47th country to prohibit all corporal punishment of children, abolishing the common law defence of “reasonable chastisement”. This article tells the story of this momentous cultural and legislative change from the perspective of the Senator who championed the reform in the Irish Parliament. From the roots of the English common law defence through revelations of endemic violence against children to human rights rulings and courageous tenacity, the journey to ultimately achieving equal protection for children in Ireland is fully documented.

Spare the rod! Implications for community safety partnerships in removing the reasonable chastisement defence in Wales

Parental discipline of children has long included the use of corporal punishment and has drawn conflicting views upon its effectiveness and its long-term effects upon individuals and society as a whole. This article considers the use of such a tactic by individuals, discussing its use and the research surrounding it at the international and national levels. It explores the introduction of the ‘The Children (Abolition of the Defence of Reasonable Punishment) (Wales) Act,’ which will become law in Wales during March 2022. This Act, whilst not creating a specific criminal act in itself, removes the defence of reasonable chastisement for parents when correcting their children in Wales. The article further considers the potential impact that the removal of the reasonable chastisement clause may have for those agencies charged with overseeing the safety of children, including the potential increase in reported cases and the issues of media and public awareness.

Corporal Punishment: Law Reform Lessons for Australia from South Africa and New Zealand

This article compares the law reform methods employed by South Africa and New Zealand to eliminate the defence of ‘moderate and reasonable chastisement’ to a charge of common assault, to determine the best possible law reform strategy for Australian jurisdictions, within the context of its federal system of governance. South Africa and New Zealand banned corporal punishment on a national level, with South Africa prohibiting the use of corporal punishment by way of the judicial condemnation of the Constitutional Court in 2019, and New Zealand’s legislation to ban corporal punishment through Parliamentary processes in 2007. Corporal punishment in the home is still legal in Australia if administered by parents or those in loco parentis. This article focuses on the three Australian States that have enacted human rights legislation—Victoria, the Australian Capital Territory (ACT) and Queensland—and the impact of this legislation on judicial law reform. In this regard, the doctrine of parliamentary sovereignty is discussed in terms of its ability to limit public interest litigation’s viability to strike down inconsistent legislation. The article suggests that all three countries can learn from one another concerning the successes and/or failures of law reform. Furthermore, the article concludes by acknowledging that even though formal abolition is the norm in South Africa and New Zealand, corporal punishment remains widespread. Parents and those in loco parentis must be supported by continual education initiatives to bring about requisite social and cultural change.

Corporal punishment in New South Wales: A call for repeal of section 61AA

Corporal punishment is lawful in the home in all Australian states and territories. In early 2021, the Tasmanian Commissioner for Children and Young People called for a repeal of s 50 of the Criminal Code Act 1924 (Tas) which permits the use of corporal punishment in the home, noting that society had moved on from the regular canings of the early 20th century when the law was passed. This article supports the call to abolish the defence of reasonable chastisement (lawful correction in NSW) by repealing s 61AA of the Crimes Act 1900 (NSW) so that children can have the same protections from physical violence as adults.

PROTECTING THE VULNERABLE IN SOUTH AFRICA: PROHIBITION OF CORPORAL PUNISHMENT IN THE PRIVATE SPHERE

On 18 September 2019, the Constitutional Court confirmed that the common-law defence of “reasonable and moderate chastisement” is unconstitutional as it unjustifiably violates sections 10 and 12(1)(c) of the Constitution of the Republic of South Africa, 1996. As a result, parents are no longer permitted to punish their child at home by way of inflicting physical punishment behind a facade of discipline. Despite the aforesaid, it should be noted that corporal punishment in the private sphere is not explicitly prohibited by South African legislation. In addition, South Africa’s legislative system lacks an appropriate regulatory framework to administer the anticipated proliferation of assault cases against parents. It is against this backdrop that this article first analyses the current legislative framework regulating the protection of children from physical punishment, and then follows with a succinct overview of the Constitutional Court ruling. The article assesses whether the mere repeal of the common-law defence of “reasonable and moderate” chastisement will be sufficient to eradicate corporal punishment in the private sphere, and if not, whether legislative prohibition and/or other interceding strategies will be required to give effect to the objective of the Constitutional Court ruling. In this regard, by way of comparative research, the legislative framework adopted by Sweden, being the first country in the world to prohibit all forms of corporate punishment of children is evaluated. Lastly, recommendations are made for the incorporation of practical steps, including possible legislative measures, to establish a regulatory framework from a children’s rights perspective to prohibit corporal punishment in the private sphere. Accordingly, for purposes of analysis and consideration, a qualitative approach is applied for purposes of the research. Primary sources such as the Constitution, case law, legislation, governmental documents, statistical data and research reports are consulted in conjunction with journal articles and textbooks.

Corporal punishment in the home: Is there a legal duty on the medical doctor to report it?

The infliction of corporal punishment on children (in the home) was found to be unconstitutional by the Constitutional Court of South Africa (September 2019). Corporal punishment was historically permitted if exercised within reasonable grounds (moderate or reasonable chastisement). In reaching its judgment, the apex court found that the child's right to human dignity and to be free from all forms of violence was unjustifiably infringed by the exercising of this form of discipline. In addition, the child's best interests was not served. Importantly, there were other non-violent means available to parents to discipline their children. This article examines what this judgment means for medical doctors who reasonably suspect that a child has been the victim of corporal punishment. It is argued that medical doctors have a duty to report such incidents in terms of section 110(1) of the Children's Act 38 of 2005.

Sideswipes and Backhanders: Abolition of the Reasonable Chastisement Defence in South Africa

Abstract This article reviews the abolition of the defence of reasonable chastisement by the South African Constitutional Court on the grounds that it infringes the Constitution. After detailing the history of the abolition of corporal punishment in a democracy with the Constitution as supreme law, the article dissects the reasoning of the Constitutional Court. It argues that judgment in Freedom of Religion South Africa v Minister of Justice and Constitutional Development (hereafter FORSA), whilst overall positive in its result, is probably a low water mark in the development of children’s rights jurisprudence in South Africa. There are a number of inadequacies and strangely deferential statements in the FORSA decision. Whilst inescapably coming to the constitutionally correct decision, the reluctance of the Court to reach this point, and its desire to accommodate the religious and cultural beliefs of the appellants, is evident. The way forward has, as a result, been left rather obscure.

Physical Punishment of Children

As at March 2016, 49 states had reformed their laws to clearly prohibit all corporal punishment of children (United Nations 1989) in all settings, including the home (Global Initiative to End All Corporal Punishment of Children, n.d.) By January 2017 this number had reached 52. As the trend moves towards abolition, it is not an acceptable position for the United Kingdom (uk), the United States of America (usa) and Australia (Poulsen, 2015) to remain missing from that list. Whilst they are, effectively, a child (a person aged under 18 years of age), is the only person in all three countries that it is legal to hit. This article seeks to restate arguments in this area in a simple way to restart the debate in a modern context where understanding of child abuse is perhaps more widespread than it ever was in the past. On 20 October 2014 a report, Living on a Railway Line, was launched in the uk to mark the 25th anniversary of the signing of the un Convention on the Rights of the Child, which took place on 20 November 1989 (Rowland, 2014). It recommended removing the defence of reasonable chastisement in relation to the punishment of children. This article seeks to build on that agenda in a comparative context taking a three way perspective from the uk, the usa and Australia. It concludes that moves to prevent family violence are progressive but the position of a society where physical punishment of children is permitted yet child abuse is forbidden is not a tenable one. Reducing the number of cases of child abuse must begin with a clear message from society that physical punishment of children, whatever the circumstances, is unacceptable. The situation is serious enough to introduce aspirational legislation to remove justifications for physical punishment of children with the aim of modifying behaviour within society.

‘Help, not punishment’: Moving on from physical punishment of children

Although the physical punishment of children is overall an ineffective disciplining strategy, has adverse long-term psychological effects, and carries the risk of physical punishment escalating into child abuse, parental physical punishment is lawful in all Australian states and territories within the bounds of lawful correction or reasonable chastisement. What is considered to be reasonable is open to considerable interpretation, which further increases the risk of physical harm to children. Physical punishment of children also contravenes the United NationsConvention on the Rights of the Child, which Australia has ratified. Although more effective disciplining strategies, such as cognitive-behavioural parenting strategies, are available and have been advocated by professional organisations, the vast majority of Australian parents condone parental physical punishment of children and are opposed to its prohibition. Predictors for this stance include perceived social norms, the belief that physically punishing children is an effective disciplining strategy and a parent's right, a perceived absence of alternative parenting strategies, and fear of prosecution if physical punishment were to be banned. Countries that have phased out the physical punishment of children have demonstrated that, to encourage a shift in parental attitudes and behaviours, public awareness about the detrimental effects of physical punishment and the effectiveness of alternative disciplining strategies needs to be raised. Additionally, parents require support through free and convenient access to evidence-based parenting programmes that promote alternative disciplining strategies; and the defence of lawful correction needs to be repealed, with the aim of setting a new standard, as well as education rather than prosecution.

Health care workers' knowledge of current child protection legislation and child discipline practices

AbstractThe reasonable chastisement of children remains legal despite intensive lobbying by various groups to rule out smacking and despite the physical abuse of children being problematic. All professionals working with children have a duty to safeguard and promote children's welfare. This includes knowledge about child protection legislation and child discipline practices. This study assessed the knowledge of 55 health care professionals working in children's services in one NHS trust in relation to child protection legislation and child discipline practices. The study aimed to establish if workers from more specialist child services (e.g. tiers three and four) demonstrated greater knowledge in these two areas than workers from less specialist services (e.g. tiers one and two) and if experience was positively correlated with knowledge. The results suggest that workers in more specialist children's services demonstrated greater knowledge about child protection legislation. There was no difference found between the two groups of health workers in relation to knowledge about child discipline practices. The number of years' experience was not significantly related to knowledge in either area considered. The results are discussed. Inconsistencies and gaps shown in knowledge across both groups of participants are outlined and the clinical implications are highlighted. Copyright © 2010 John Wiley & Sons, Ltd.

Chastising a child – the legal position

Chastisement of children can take many forms, some of which could be offences under law. If the child was afraid of a physical attack because the parent was shouting at them, this could constitute an assault. A parent or other adult could face a charge of battery for physically striking a child. Under English law, reasonable chastisement is a defence available to a parent who may face legal prosecution for the action they take against their child. This article reviews the nature of chastisement and the current legal situation using relevant cases and related legislation. At present, a parent is entitled under English law to chastise their child; this includes smacking them where doing so leaves no mark on the child.

CHOOSE TO HUG, NOT HIT*

This article discusses reasonable chastisement of children as a defense by parents to assault charges. It suggests that its continued retention contravenes the rights of children and the United Nations Convention on the Rights of the Child. It compares developments in various countries, such as the Scandinavian countries and New Zealand, where the defense has been abolished, as compared with the United States, United Kingdom, Canada, and Australia, where it has been retained. It suggests that its continued retention encourages bullying and violence in schools and in later adult life.

Protecting or punishing children: physical punishment, human rights and English law reform

This paper assesses the current state of English criminal law in relation to the use of physical force by parents as a means of disciplining their children. It does so in the light of the Children Act 2004, the European Convention for the Protection of Human Rights and Fundamental Freedoms 1950, Art 3, pressure from bodies such as the United Nations Committee on the Rights of the Child and the law in other parts of Europe. It acknowledges that parents should have a large degree of autonomy in relation to parenting. However, the defence of ‘discipline’ or ‘reasonable chastisement’ is outdated, vague and potentially dangerous to children. It is argued that the response of the British Government to criticism of our law has been far from satisfactory. The reform which was incorporated into the Children Act 2004 as a result of pressure upon the government aims to avoid criminalising ‘ordinary families’ for minor smacks. However, the statement of principle is so diluted that parents might understandably be confused and enforcement may be difficult. Moreover, the pressure for reform has continued unabated. The paper concludes that what is needed is an outright ban, combined with an educational campaign, which can lead the way in changing the cultural tradition of physical punishment.

Should there be a total ban on smacking?

Equal protection is every child's right. Yet, though children are the smallest and most vulnerable of people, the law allowing ‘reasonable chastisement’ means that they have less protection from being hit in the home than adults. It just doesn't make sense.

Reasonable Chastisement: A Critique of the Supreme Court of Canada's Decision in the "Spanking" Case

Reasonable Chastisement: A Critique of the Supreme Court of Canada's Decision in the "Spanking" Case

THE CORPORAL PUNISHMENT DEBATE IN CANADA

The controversial issue of corporal punishment of children is now before the Supreme Court of Canada. Whether or not Canada's highest court rules that the “reasonable chastisement” defense to charges of assault on children by parents and teachers is unconstitutional, it is likely that Parliament will move forward with reforms. Social science evidence on the negative effects of corporal punishment has been accepted by the federal government, and it seems likely that Canada will soon join the list of countries that prohibit the practice.

The Corporal Punishment Debate in Canada

The controversial issue of corporal punishment of children is now before the Supreme Court of Canada. Whether or not Canada's highest court rules that the “reasonable chastisement” defense to charges of assault on children by parents and teachers is unconstitutional, it is likely that Parliament will move forward with reforms. Social science evidence on the negative effects of corporal punishment has been accepted by the federal government, and it seems likely that Canada will soon join the list of countries that prohibit the practice.