Reflection

T he International J ournal of Children’s Rights

B R I L L N I] H O F F

I N T E R N A T IO N A L JO U R N A L OF C H I L D R E N ’S RI GH T S

2 2 ( 2 0 1 4 ) 6 8 1 - 7 0 9 bisi brill.com/chil

Can we Conquer Child Abuse if we don’t Outlaw Physical Chastisement o f Children?

M ichael Freeman Emeritus Professor of English Law, Faculty of Laws, University College London, United Kingdom

[email protected]. uk

B ernadette J. Saunders Senior Lecturer, Social Work, Faculty of Medicine, Nursing & Health Sciences, Monash University, Australia

[email protected]

Abstract

Initially, this paper was delivered as a keynote address at the 17th i s p c a n International Congress held in Hong Kong in 2008. It addresses the question: Can we conquer child abuse if we don’t first outlaw physical punishm ent of children? It is argued th at chil­ dren’s low status in society and children’s less than optimal development are inextrica­ bly linked to corporal punishm ent in childhood, as is the physical abuse of children th a t all too frequently begins as disciplinary violence, often euphemistically described as “smacking”, b ut tragically escalates, resulting in injuries and even death. Attention is drawn to increasing evidence from research around the world th at reveals the futility and avoidable negative consequences of physical chastisement, and the paper ends on an optimistic note foreseeing the end of the corporal punishm ent of children in Asia and elsewhere - a world in which children’s rights are respected and children’s child­ hoods are freed from the pain and fear of disciplinary violence.

Keywords

physical chastisement - corporal punishm ent - child abuse - children’s rights - parenting

© KONINKLIJKE BRILL NV, LEIDEN, 2014 | DOI 10.1163/15718182-02204002

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Background

This article began life as a keynote address presented at the 17th ispcan International Congress held in Hong Kong in 2008. In Hong Kong, as in m ost Asian countries, parents com m only corporally punish their children as a means o f discipline and control. Moreover, in Hong Kong, as in m ost states and territo­ ries in Australia, corporal punishm ent or “reasonable chastisem ent” remains a com m on law defence to the assault o f a child by a parent or guardian. Further, in Hong Kong, interpretations o f provisions against violence and abuse in the Protection o f Children and Juveniles Ordinance 1951, the Dom estic and Cohabitation Relationships Violence Ordinance 1986, the Offences against the Person Ordinance 1950, the Crimes Ordinance 1971 and the Protection o f Children and Juveniles Ordinance 1951 accom m odate corporal punishm ent in childrear­ ing (End Corporal Punishment o f Children epoch, 2014). In many parts o f Asia, there exists both an entrenched cultural view that physical chastisem ent is inte­ gral to childrearing and a strong resistance to attitudinal and behavioural change. Though now perhaps less entrenched, tolerance o f parental corporal punish­ m ent in English-speaking countries, such as Australia and the United Kingdom, also persists and challenges to its legitimacy also continue to be resisted. Indeed, as Freeman observed 35 years ago, significantly at the same time as Sweden took the visionary step to outlaw all physical punishm ent o f children:

... [w ]e live, as w e always have done, in a violent society, o f w hich the fam­ ily is a true m icrocosm ...the family is a real cradle o f v io le n c e ... as condi­ tions o f childhood and experiences o f family violen ce socialise into a “culture o f violen ce”.

FREEMAN, 1 9 7 9 : p.l

Introduction

In the 1940s and 1950s in the United Kingdom and in Australia m ost children, certainly m ost boys, were caned at school. M ost parents also physically pun­ ished their children, som etim es w ith canes and other im plem ents. Childhood w as a painful experience - odd, because w e are encouraged to think o f child­ hood as the happiest years o f our life. The myth, o f w hat John Holt called, the “walled garden” o f “Happy, Safe, Protected, Innocent Childhood” (1975:22-23), w as (and is) ju st that - a myth, w ith poverty, disease, exploitation and abuse rife across the globe. In schools in the u k , and in m ost schools in Australia, children can no longer be beaten but, as they live in these countries, their

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parents retain the right (actually the freedom) to h it them . This is because these countries have yet to jo in the growing trend o f civilized nations in Europe and now beyond to ban com pletely the physical punishm ent of children w ithin the home.

As at October 2014, w ith the exception of the United States and Somalia, 194 countries have ratified the u n c r c (1989) yet, following Sweden’s lead in 1979, only 40 countries have since banned physical punishm ent in all locations, including the child’s hom e. Prior to the beginning of this century, only eight countries had introduced a ban. Sweden was followed by Finland (1983), Norway (1987), Austria (1989), Cyprus (1994), D enm ark (1997) and Croatia (1999). In 2000 Germany, Bulgaria, and Israel introduced a b an (Israel’s legisla­ ture followed the lead of its Supreme Court). Iceland (2003), the Ukraine (2004), Romania (2004) and Hungary (2005) were the next countries to follow. In 2007, seven m ore countries progressed to a b an - Spain, the Netherlands, Togo, Portugal and Venezuela. Also Uruguay, w hich was the first Latin American country, and New Zealand, w hich rem ains the only English-speaking country to do so (for a detailed account of strategies th a t led to this New Zealand reform, see Wood, Hassall, and Ludbrook (2008)). The Republic o f Moldova, Liechtenstein, Luxemburg and Costa Rica ban n ed corporal p u nishm ent in all settings in 2008 and, in 2010, Poland and Albania jo in ed this select group. Five African countries, in addition to Togo, have recently adopted this progressive stance - Kenya, Tunisia and the Republic of Congo in 2010, South Sudan in 2011, and Cabo Verde in 2013. In 2013, Honduras becam e the fourth Latin American country to ban physical p u nishm ent in all settings, an d M acedonia also intro­ duced a ban. In 2014, Malta, Brazil and Bolivia (the fifth an d sixth in Latin America) becam e the m ost recent countries to introduce a ban, while Turkm enistan’s b an (introduced in 2002) was also officially confirmed this year (End All Corporal Punishm ent o f Children e p o c h , 2014). Brazil, a recent coun­ try to b an corporal punishm ent, has a child population o f about 59 million (u n i c e f , 2013). It is the largest country in the world to achieve full prohibition, raising the global percentage o f children legally protected from physical p u n ­ ishm ent from 5.5 p er cent ( e p o c h , March, 2014) to approxim ately 8.2 p er cent in June, 2014. No longer considered to be “simply a fact of childhood” (McGillivray, 1997, p. 211), corporal pun ish m en t in these countries cannot be defended as a lawful, reasonable or justifiable violation o f a child’s body even, and perhaps particularly, if delivered w ith disciplinary in te n t Nepal has m ade a com m itm ent to p rohibit all violence in childrearing, but, as at October 2014, this has n o t been confirmed in legislation (End All Corporal Punishm ent of Children e p o c h , 2014). And so have several other South Asian countries, as discussed further below.

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What is Physical Chastisement?

Murray Straus defines physical chastisem ent as “the use of physical force with the intention of causing a child to experience pain, b u t not injury, for the purpose of correction or control of the child’s behavior" (1994, p. 4). And so it is “smacking”, but not only smacking. There are “loving taps” and “little smacks" b u t there are “good” spankings and beatings using implements. All of these “punishm ents” h u rt and are intended to hurt. That is why they are inflicted. It is pain that makes these actions punishm ent, and the intention of causing pain that distinguishes punishm ent from other parental responses to children’s behaviours which may incidentally cause pain, for example grabbing a child who is about to run into the road. Hitting the child when s/he has been retrieved is punishm ent. (It is worth reminding ourselves that John Stuart Mill justified pulling someone back from a dangerous bridge (1986:111).)

How Many Children are Hit by Parents?

In their childhood, almost all adults were hit by their parents. Evidence from research in 32 countries, including the us, U K and Australia, suggests more than 90 per cent (Straus, Douglas, and Medeiros, 2014). Hitting children may be declining, and this may stem from its abolition in schools, and it may be less severe (as we will see, the law in some countries now limits it rather more than in the past), but it is still a prevalent practice. Moreover, much physical punish­ m ent characteristically occurs behind closed doors preventing exact estimates of its prevalence, especially against infants and very young children who are even less likely than older children to talk about their “disciplinary” experi­ ences or to be seen by others outside of the family (Dodd, 2011).

A glimpse at prevalence statistics around the world (see Dodd, 2011) includes the following. A survey of 933 adults in the Bahamas found that 77 per cent of children had been “spanked” (Brennen et ai, 2010) and in Trinidad and Tobago a 2005-2006 survey suggested that 54 per cent of children had received corpo­ ral punishm ent in the previous month ( u n i c e f , 2010a). In Africa, 99 per cent of 500 Kenyan women, aged 18- 24, revealed that they had experienced physi­ cal violence in childhood, including being beaten with an object, punched, kicked, choked, burned, stabbed, forced to put spicy/bitter substances in their mouths, being locked or tied up, and denied food (Stavropoulos, 2006). In the Philippines, a survey of 270 students, with an average age of 12, found that 61.1 per cent of the children had been physically punished, mostly being

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pinched, at home (Sanapo and Nakamura, 2010). In Ireland, more than 25 per cent of 1,300 parents surveyed in 2010 had physically punished their children in the preceding year (Halpenny ef al., 2010). In Paraguay, 61 per cent of more than 800 children and young people aged 10 to 18 years who participated in a survey, reported suffering violence and mistreatment at the hands of family members ( u n i c e f , 2010b, cited in Dodd, 2011). In the United States, one study suggests that the corporal punishm ent of three to 11-year-old children had declined by 18 per cent between 1975 and 2002 yet in 2002 nearly 50 per cent of eight and nine-year-old children had been hit with implements and over three-quarters of pre-school children had been spanked (Zolotor et ai, 2010). Similarly, the results of a Canadian survey, published in 2005, indicated that 59 per cent of mothers of pre-school children had corporally punished their children two weeks prior to the survey (Ateah and Durrant, 2005). In Bangladesh, a 2008 report ( u n i c e f , 2009) revealed that 74 per cent and 91 per cent of children respectively responded in a survey that they had been physically punished by parents and school-teachers.

How Often and How Severely are Children Hit?

Many children are hit often. There m ust still be parents like those the Newsons (1968 (new edition 2007); 1976) found in their famous studies, over 40 years ago, who use corporal punishm ent daily. They quoted a pack­ e r’s wife who used the stick about three tim es a week and, in answer to a prom pt w hether she also used her hand, responded: “Yes - oh very often; every tim e he passes me, I’m helping him on his way!" (Newson and Newson, 1968 (new edition 2007), p. 442). It was comm on to collect data from only one parent. This, unsurprisingly, led us to underestim ate fre­ quency. But research in the u k , which collected data separately from m oth­ ers and fathers, suggests the punishm ents inflicted are additive and closely connected. As Nobes and Smith argue:

From the child’s perspective it is the combination of maternal and paternal punitive actions that is important. Focus on only one parent’s actions will often lead to a poor estimation of the extent to which children in two- parent families experience physical violence. In particular, it will lead to underestimation when an individual parent is identified as a frequent, severe or abusive punisher, for the child is in fact likely also to be experienc­ ing high levels of punishment from the other parent

1997, p. 280

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Children may also be hit severely. It is all very well using euphemisms (as influential politicians like Tony Blair, the former British Prime Minister (.HeraldScotland, 1996, "Blair admits to smacking his children: Concern over Labour leader’s belief that corporal punishm ent in the home can be justified") and Tony Abbott, Australia’s current Prime Minister (Griffiths, 2013)) have cho­ sen to do. Weasel words, like “loving smack” (incidentally an oxymoron, like “military intelligence” which told us there were weapons of mass destruction in Iraq!) and even “safe smack” (which we know is not the case) effectively minimise disciplinary violence and often mislead. In fact, many parents still use implements (belts, sticks, wooden spoons, slippers) and these are not “light taps”, as is often claimed (see, for example, Lansford et al. (2012) in the U S , Saunders and Goddard, 2010 in Australia, Hester et al. (2009) in England and China, and e p o c h 2014 for summaries of research around the world on the nature and extent of corporal punishm ent - prevalence and attitudinal research). It is notable that Tony Blair has more recently expressed less toler­ ance for “smacking" children (see Jardine, 2006), and in the U K , some of this will now be unlawful, but some will not and, if the truth be told, it is difficult to say on which side of the line a particular punishm ent falls. In Scotland, sec­ tion 51 of the Criminal Justice (Scotland) Act 2003 excludes hitting children on the head, shaking or punishing with a belt, cane or implement from “justifiable assault”. In England and Wales, section 58 of the Children Act 2004 permits the defence of "reasonable punishment" for a common assault on the child. The defence is not available for injuries which cause actual bodily harm but does apply when an assault causes “reddening of the skin” or harm that is deemed to be “transient” or “trifling” (Crown Prosecution Service, 2009). Physical assaults on a child that risk but do not cause injury or, at least, visible injury, and frequent “trifling” assaults remain defensible. Indeed, the compromise reached by the Parliament which will “allow mild smacking, while barring any physical punishm ent which causes visible bruising” (Nicholls, 2004) led to calls for caution that parents might hit children where bruises will not be obvious such as on the head; and recognition that the “reform” would be more protec­ tive of children whose skin is sensitive (Stewart-Brown, 2004).

Other forms of physical punishment, as well as hitting, are also used. Nobes and Smith (1997, p. 274) defined three additional categories of physical punish­ ment: “physical restraint” (being shaken or forced under a cold shower are examples); “by example”, pulling a child’s hair when s/he pulls yours or biting or pinching; and “ingestion” (washing out a child’s mouth with soap as a pun­ ishment for being rude or swearing). In Australia, research revealed that chil­ dren are usually hit with varying intensity and with an open hand, but also common were the use of implements, pinching, biting, shaking and

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throwing objects at children. More severe forms of punishment, such as burns and cuts, were also not uncommonly seen by professionals who worked with children (Saunders and Goddard, 2010). Of concern, a Chinese university stu­ dent in Hester et alls (2009) research, responding to a questionnaire about her childhood upbringing, normalised being kicked and slapped - not even label­ ling this as punishm ent in the context of other children’s more severe physical discipline and punishment:

... in my questionnaire, I answered that I did not experience violence. I did not mind parents giving a kick or slap on me, which did not belong to punishment.

Interview w ith Ling, female Chinese student (2009, p. 408)

W hich Parents Hit Their Children and Why?

The practice of hitting children is passed from one generation to the next. A principal reason why parents hit their children is that their parents hit them. In the authors’ experience, anecdotal evidence suggests that up to two-thirds of British and Australian university students studying child law and children’s rights, many coming from distinctly middle-class back­ grounds, have been corporally punished by parents. None of the students not subjected to physical punishm ent intend to use the practice on their chil­ dren; many of those who were do not dismiss the possibility that they will hit their children. (It is refreshing to note that many change their minds after the course or after a student placement with statutory child protection ser­ vices.) Other variables are equally or more significant. Thus, the frequency and severity with which parents hit their children is closely associated with family and relationship variables, such as the stability of the parents’ mar­ riage and the parents’ m ental health. Socio-economic status is less signifi­ cant; indeed, the Newsons in the 1960s found that those in higher social classes were less likely to threaten, but ju st as likely as other groups to use an implem ent to punish, their children.

Parents who hit children may say it “works” (see, for example, Saunders and Goddard, 2010). Its frequent use suggests that it does not, and that this leads to more severe hitting; the punishm ent escalates. When parents say it “works”, what do they mean by this? It brings the behaviour in question to a halt (see Gershoff, 2002): but for how long? It re-asserts the parent’s sense of being in control. It is good for the parent: it relieves stress; it may even make them feel better (Gough and Reavey, 1997). These may be the parents who hit with

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measured calm. Indeed, much corporal punishm ent in schools may have come into this category, but it became ritualistic as a result. However, most parents hit because they are angry and “lose it”, or because they need to do something and cannot think what else to do, and many parents say they would prefer an alternative (Saunders and Goddard, 2010).

The Effects of Corporal Punishment on Children

There are considerable research findings w hich show th a t children who are hit have more behaviour problems, especially with aggression, more em otional and m ental h ealth problems, especially depression, and the im pact of physical punishm ent may extend into their adult life in the form of violence towards partners and family m embers, anti-social behaviour and ongoing m ental health issues (D urrant and Ensom, 2012; Gershoff, 2002).

An interesting question is which comes first? Do children behave badly because they are hit, or is it badly behaved children who get hit? Important research by Gunnoe and Mariner (1997), Brezina (1999), and Straus, Sugarman and Giles Sims (1997) goes a long way towards unraveling this question. In the u s, information related to large, nationally representative samples of children was stored on an index of anti-social behaviour (a sb) and the am ount of phys­ ical punishm ent they had experienced (Time 1). Two years later (Time 2), the asb index was repeated. Whatever was the original level of asb, the higher the level of physical punishm ent at Time x, the greater the increase in asb at Time 2. Children who experienced very little, or no, physical punishm ent at time 1 showed no increase or a drop in asb scores. The tendency was for “physi­ cal punishm ent to make things worse”, and this was “regardless of race, socio­ economic status, gender of child, relationship with parents or level of anti-social behavior” (Straus, 1994, p. 197).

What Do Children Think about Corporal Punishment?

This is a question which is n o t often asked. Imagine if we w anted to know opinions about dom estic violence, and we only asked men. But this is close to w hat the uk Government did. It found considerable opposition to removing the parental liberty to inflict corporal chastisem ent on chil­ dren, b u t it sought to elicit only parents’ views, n o t children’s first hand experiences.

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Evidence suggests that “smacking” can reinforce cycles of violent behav­ iour - parents who were smacked as children may be more likely to smack their children, unless the cycle is interrupted (Conger et at., 2003, Scaramella and Conger., 2003, Lunkenheimer et al., 2006, Saunders and Goddard, 2010). Children are increasingly consulted in research around the world and many children’s comments suggest that:

... physical punishment - experienced or witnessed - adversely impacts on [their] sense of self, reinforces their powerlessness and vulnerability, and lowers their perceptions of the adults whom they love and respect. [It] hurts them physically and can escalate in severity; arouses negative emo­ tions, such as resentment, confusion, sadness, hatred, humiliation, and anger; creates fear and impedes learning; is not constructive, children pre­ fer reasoning; and it perpetuates violence as a means of resolving conflict ... children are sensitive to inequality and double standards, and children urge us to respect children and to act responsibly.

SAUNDERS, 2013:298

Some children who have been physically punished readily endorse it as a rea­ sonable disciplinary response (see, especially, Twum-Danso, 2013) and antici­ pate responding to their own children in the manner in which they were made to comply - w hether or not parents’ expectations of their children were rea­ sonable or ostensibly well-motivated:

I am a hum an being and naturally make a mistake. Humans do not always follow rules. So it is necessary to use the whip when they don’t obey rules ... parents have the right to physically punish their children.

Ethiopian child, save t h e c h il d r e n Sw e d e n , 2007, p. 39

... when I’m older I’d only smack if I’d really need to. If they did something really bad ... I’d prob’ly smack them next time they did it. If they did it again ... I’ll smack twice as hard: “If you do that again I’ll do something worse” ... If you’re a smacking person, and that’s all you do ... you could start from a kinda tap and get harder and harder until as hard as you can. (8 years, Australia).

SAUNDERS AND GODDARD, 2010, p .ll6

When I have children, I’ll explain their mistakes to them, but if they don’t behave I’ll beat them gently on the bottom.

Child in Viet Nam, b e a z l e y e t a l ., 2005, p.162

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At the same time, research that has consulted children around the world reveals that many if not most children feel that physical punishment is “out of place” in modern childhood. The following selection of children’s insights is instructive:

There are other ways to solve problems other than hitting and it doesn’t do parents or children any good (10 years, Scotland).

ALEXANDRECU, e t al ., 2005:14

Children are our future so they have got to be im p o rta n t... Parents think hitting children is sort of their rig h t... I guess parents have gotta learn to respect children (13 years, Australia).

SAUNDERS AND GODDARD, 2010, p. 222

[Spanking] doesn’t show him how to do something better; it just shows that you have more power over him (9 years, United States).

VITTRUP AND HOLDEN, 2010, p. 2l8

... when I make a mistake and she punishes me I’m not angry with her because I know she wants me to be a good child. But I wish all parents would stop punishing their children. They should respect children’s rights and educate children using nonviolent methods (Cambodian child).

BEAZLEY E T A L . 2007, p, 190

Is Corporal Punishm ent of Children “Child Abuse”?

Is corporal punishm ent of children child abuse? This depends upon w hat one understands as “child abuse”. W hat constitutes abuse is not self-evident. It is a social construction. Some define abuse very broadly. David Gil (1975, p. 347), for example, defines it as anything which interferes with “the optimal develop­ m ent” of a child. The National Commission of Inquiry into the Prevention of Child Abuse in Britain in 1996, echoing Gil, defined it as:

... anything which individuals, institutions or processes do or fail to do which directly or indirectly harms children or damages other prospects of safe and healthy development into adulthood.

Others define it more narrowly. David Archard, for example, confines abuse to something “serious enough to warrant state intervention” (1993, p. 128) but this begs the question: What is serious enough to justify encroachment upon parents’

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autonomy in child-rearing? Arguments surrounding definitions of child abuse reflect ideological differences, including different understandings of childhood and of appropriate child development, and may prove intractable. The National Commission’s (1996) definition provided a hostile response: a government min­ ister responded that social workers needed clear advice about the indicators of abuse, not imprecise definitions that risked misinterpretation.

The Convention on the Rights of the Child (1989)

In numerous reports, the u n Committee on the Rights of the Child (see State parties reports) has criticised governments which have not outlawed corporal chastisement within the home (see u n Committee, State parties reports) and the following questions, posed 15 years ago, continue to beg responsible and humane answers from countries that have ratified the Convention:

W hat is a “loving” smack? Or a “safe” smack? Is it lawful to smack babies or disabled children? Are you to be allowed to hit a child’s head, or face, or “box” his ears? And what of his bottom, given the sexual connotations? ... Is there to be a maximum age? (Can you strike a Gillick competent child?) ...Will it be permissible to remove a child’s clothes? Will an imple­ m ent be totally ruled out? (Odd, isn’t it, that some would countenance a punch with a fist or a powerful blow with the hand but rule out a strap on the palm of the hand or back of the leg?).

FR EEM A N , 1999:138

The Convention on the Rights of the Child of 1989 is clear that all forms of violence from a smack to a beating should not be countenanced. In Article 19, it requires:

... all States Parties to take all appropriate legislative, administrative, social and educational measures to protect the child from all forms of physical or mental violence, injury or abuse ...while in the care of parent(s), legal guardian(s) or any other person who has care of the child.

CONVENTION ON THE RIGHTS O F THE CHILD (1989)

Thus, the Commitee has often said that States’ proposals and laws that ‘limit rather than ... remove the “reasonable chastisement” defence do not comply with the principles and provisions of the convention’ (see u n Committee State parties’ reports). It has recommended that the “reasonable chastisement

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defence” should be removed and public education programmes should be car­ ried out on the negative consequences of corporal punishment. Absurd legisla­ tive limitations rather than bans on the corporal punishm ent of children in all settings, including the home, include in the Australian state of New South Wales where children may be hit below the shoulders as long as it does not cause harm lasting more than a short (undefined) period (Crimes Act 1900 ( n s w ) S.61A A ( 2) b), in Canada where a 2004 Supreme Court ruling stated that section 43 of the Criminal Code justifies ‘minor corrective force of a transitory and trifling nature’, and this prohibits corporal punishm ent of children less than two-years old and above 12-years old, and also degrading, inhuman or harmful discipline, the use of objects and hitting a child’s head (Canadian Foundationfor Children, Youth and the Law v Canada (Attorney General), and in the u k , as noted above.

The u n i c e f Report - Women and Children: The Double Dividend of Gender Equality

Sentiments expressing disdain at the notion of specifying age spans, body parts and acceptable degrees of harm instead of condemning all forms of vio­ lence against children are echoed in any num ber of other reports. To take just one further example, look at the u n i c e f report (2007) on the State of the World’s Children, entitled Women and Children: The Double Dividend o f Gender Equality, which links child abuse and domestic violence. Two hundred and seventy-five million children worldwide are each year caught in the crossfire of domestic violence. And there is, the report notes, a strong correlation between violence against women and violence against children. The report stresses that 'shattering the silence that surrounds domestic violence is key to ending vio­ lent behaviour in the home' ( u n i c e f , 2007, p. 25). It cites the guiding princi­ ples of the Report of the Independent Expert for the United Nations Study on Violence against Children. These are:

• No violence against children is justifiable. Children should never receive less protection than adults.

• All violence against children is preventable. States m ust invest in evidence- based policies and programmes to address factors that give rise to violence against children.

• States have primary responsibility to uphold children’s rights to protection and access to services, and to support families’ capacity to provide children with care in a safe environment.

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States have the obligation to ensure accountability in every case of violence. The vulnerability of children to violence is linked to their age and evolving capacity. Some children, because of gender, race, ethnic origin, disability or social status, are particularly vulnerable. Children have the right to express their views, and to have these views taken into account in the implementation of policies and programmes ( u n i c e f , 2007, p. 25).

The Council of Europe Conference: Building a Europe for and with Children

The Council of Europe’s conference held in Monaco in April 2006, “Building a Europe for and with Children”, offered a similar, if more nuanced, message, delivered by the European Commissioner for Human Rights of The Council of Europe: “We cannot hide behind the right of privacy to justify corporal punish­ m ent” (Hammarberg, 2006). The report of the conference stressed that abolish­ ing corporal punishment is a matter of human rights. And it referred to the recommendation in 2004 of the Parliamentary Assembly of the Council of Europe to make Europe “a corporal punishment free zone for children” (see Council of Europe, 2005). The report emphasised the importance of eliminat­ ing all corporal punishment of children since it not only violates children’s human rights, it seriously impacts upon children’s health and development and thus the whole society. The conclusions from a selected conference panel included making an unequivocal ban on all forms of corporal punishment of children a “priority target” of the three-year programmes, “Building a Europe for and with Children” (see Council of Europe, 2014), and changing attitudes. They stressed that banning corporal punishm ent will primarily motivate changes in attitudes, not the prosecution of parents (see also Freeman, 1999). They noted the vital role of the media to disseminate a candid, unambiguous message that corporal punishment is not acceptable and that children have a key role to play because children’s awareness of their rights enhances their safety.

The Association betw een Corporal Punishm ent and Child Abuse

Even if the argument is presented that corporal punishm ent is not child abuse, there is a strong association between corporal punishm ent and abuse. What ends up as abuse in the majority of cases began as moderate correction. A 1970

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study of all reported cases o f physical abuse in the u s during a two-year period found th a t 63 p er ce n t o f cases resulted from “incidents developing o u t of dis­ ciplinary action taken by caretakers” (Gil, 1970, p. 126). A 2001 study of reported physical abuse cases in Canada showed th a t 69 p er cent of substantiated cases of physical abuse resulted from disciplinary action (Trocme et at., 2001). W hen parents use corporal punishm ent, they are likely to have learned through previous p atterns o f reinforcem ent th a t the child stops misbehaving w hen h it (if th a t was th eir reason for hitting, w hich is n o t always the case). They expect positive results from the punishm ent. They may n o t intend to physi­ cally injure the child (although they certainly intend to inflict pain since cor­ poral p u n ish m en t w hich does n o t inflict pain has no point). But heightened levels o f arousal - anger, protection, stress:

... independently act on the intended degree of physical p u nishm ent to produce responses involving a dangerous or injurious level o f force. W hat begins as an act of physical discipline thus becom es an act of interper­ sonal violence.

VASTA, 1982, p .135

Children also becom e habituated to punishm ent. More frequent or more severe p u n ish m en t is th en needed to produce the same effect - stopping the misbehaviour, inducing compliance, re-asserting parental authority. Correction escalates by stages into abuse. The dividing line betw een the two - if it exists a t all - soon evaporates. In m ost o f the m ost notorious cases of child abuse in Britain and Australia, from M aria Colwell to Victoria Climbie and ‘Baby Peter’ in Britain, and Daniel Valerio to Cody Hutchings in Australia, the m ost awful violence began as “parental discipline”. In contexts w here physical punishm ent is norm alised and th en used to excess, it too frequently results in severe and fatal abuse particularly o f small children (see, for example, Nielssen et a/.’s (2009) research in Australia) b u t older children are also a t risk. A disturbing case in Canada in w hich a 13-year old child died after h er father reportedly slapped h er ‘twice for n o t doing a chore in the m an n er he had instructed’ is recent testam en t to this (cbc News, 2014).

The Causes o f Child A buse

There is no agreem ent - and we will n o t agree - on the causes of child abuse. Its putative explanations m irror those for dom estic violence, w here the femi­ nist interpretation is now becom ing dom inant, an d rightly so. This gives us

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confidence that its equivalent in child abuse, the cultural interpretation, will eventually emerge as the explanation that all right-thinking persons (even per­ sons of the “right”) will accept. This is not suggesting that some child abusers are not “sick". Of course, they are. Nor is this denying that socio-environmental factors, poverty and its multifaceted correlates, help us to understand some child abuse. But neither the psycho-pathological model of child abuse nor the socio-environmental model accounts for child abuse.

This is not the place to offer a critique of the two models. This has been done elsewhere (see, for example, Freeman, 1997,2000a). Gil points out that that we should want to think of abusive parents as “sick” may tell us something about ourselves. Parents may derive gratification from the sickness-as-cause inter­ pretation, since it may fill them with a sense of security. For if abusive behav­ iour were a function of sickness, most parents could view themselves as free from the dangers of falling prey to it, since they do not consider themselves sick. And advocates of the socio-environmental model concede that it oper­ ates through an intervening variable, namely stress and frustration experi­ enced by individuals “in the context of culturally sanctioned use of physical force in child rearing” (Gil, 1975, p. 353). Clearly, ‘the line between legitimate corporal punishm ent and child abuse is, at best, fuzzy’, and ‘those who skate on thin ice cannot expect a sign to alert them to the exact point where the ice will cave in’ (Freeman, 1994:21,23). Sanctioned physical punishm ent places all chil­ dren at risk of physical and emotional harm which arguably is in effect child abuse given that children do not have a say in this - children are both vulner­ able and powerless.

Culture and Corporal Punishm ent

We have to situate child abuse within culture. An understanding of abuse requires an understanding of power. Sexual abuse of children - and some cor­ poral punishment is unquestionably sexual abuse - is largely male abuse of power. The physical abuse of children too can be explained in terms of power and our definitions of children as objects rather than rights-holding persons (see Saunders and Goddard, 2001). Nearly 40 years ago, David Gil sought the aetiology of child abuse in: “society’s basic social philosophy, its dominant value premises, its concept of humans, its nature of the social, economic and political institutions” (1975, p. 350). Violence is, of course, common in asym­ metric relationships (master and slave, male-female relationships). And physi­ cal force has been used for disciplinary purposes in all such contexts. It was once used in the armed services, against apprentices and prisoners. It is still

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used as a disciplinary measure in a num ber of penal systems (many in Asia) (see End All Corporal Punishment of Children e p o c h , 2014). But nowhere is this clearer than in the relationship of adults to children; and we do not need to limit ourselves to the rather obvious fact that physical punishm ent of chil­ dren is, in most countries, culturally acceptable.

To understand violence against children, or child abuse more generally, it is important to examine our concept of childhood, to look at social policies which sustain different levels of rights for children. We may no longer sub­ scribe to notions of children as property, but the legacies of such an ideology remain firmly implanted within our consciousness. We can all find examples of this in our own countries. Indeed, Mia Kellmer-Pringle’s wish that we prog­ ress beyond the stage when we believe that “a baby completes a family, rather like a tv set or fridge” (1975, pp. 69-70) constantly comes to mind. Writing in 1972, she described uk society as “adult-orientated and not child-centred", and this was, she said, "clearly reflected in our laws” (Kellmer-Pringle, 1972, p. 174). Sad it is to report but the household wish list may have changed, but our atti­ tudes to children have not. This is well illustrated by reference to a case - one which is coincidentally - because there are many which are not - about corpo­ ral punishment. It is the Wiltiamson case of 2005. This uk case was brought by fundamentalist Christian parents (and teachers at fundamentalist Christian schools). They claimed that education legislation prohibiting corporal punish­ m ent in schools - and it took the uk until 1998 finally to rid itself of this - infringed their right to manifest their religion and to educate their children in conformity with their own religious convictions. It took Baroness Hale (in the House of Lords) to point out the obvious - although it escaped the attention of all the other judges - that:

... this is, and always, has been, a case about children, their rights and the rights of their parents and teachers. Yet there has been no one here or in the courts below to speak on behalf of the children. No litigation friend has been appointed to consider the rights of the pupils involved sepa­ rately from those of the adults ...The battle has been fought on ground selected by the adults (in Regina v. Secretary o f State fo r Education and Employment and others (Respondents), ex parte Williamson (Appellant) and others, decision of 24 February 2005, United Kingdom, [2005].

u k h l 15, p ar a. 71.

She offered her judgm ent “for the sake of the children”. Her conclusion was the same as the other judges. The European Convention on Human Rights did protect the parents’ belief that their children should be exposed to corporal

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pun ish m en t a t school - we take it for granted th at these children were so exposed at hom e - and education legislation did indeed infringe this right, b u t the interference was justified (also by the Convention). Baroness Hale explained:

... if a child has th e right to be brought up w ith o u t institutional violence, as he does, th a t right should be respected w h e th e r or n o t his p arents and teachers believe otherwise, (in Regina v. Secretary o f State f o r Education and Employm ent and others (Respondents), ex parte Williamson (.Appellant) and others, decision of 24 February 2005, United Kingdom, [2005].

u k h l 15, p ar a. 86

W hy Rights for C hildren are Right?

Baroness Hale’s ju d g m en t is a forceful affirmation of the integrity of children, a clear articulation of children as persons w ho are rights-holders. It is n o t the only such statem en t by a judge. We should rem ind ourselves o f w h at American judges were saying in the 1960s in cases like Gault and Tinker, and o f the famous Gillick p ro n o u n cem en t in the English House o f Lords in 1985, and there are others (in the Angela Roddy case and in Axon). Im plicit is an exhortation to take children’s rights seriously. Doing so may obstruct w h at adults want: this seems to be M artin Guggenheim’s reservation in his book, W hat’s Wrong with Children’s Rights (2005). But then rights always have been a nuisance. Surely, th a t is why we have had to fight for them . Of course, for the powerful - and, for children, adults are always powerful - rights are an inconvenience. The power­ ful would find it m uch easier if those below them lacked rights. It would be easier to rule, decision-m aking would be swifter, cheaper, m ore efficient and m ore certain. This applies across the board, and certainly as far as children are concerned. W h at children long lacked was the right to possess rights. They lived in a condition of com plete rightlessness. The turning po in t has come w ith the international com m unity’s recognition of children’s rights in the Convention o f 1989.

A key provision in this is Article 12, w hich emphasises children as participants in the social process. Children are n o t ju s t to be acted upon; they are agents, decision-makers, people who negotiate w ith others, who alter relationships or decisions, who can shift social assumptions and constraints. And Priscilla Alderson and h er colleagues have dem onstrated th a t even very young children can do this (Alderson, 2000; Alderson, Hawthorne and Killen, 2005). Participation can enable children to uphold their rights. It can also enhance their skills,

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empower and enhance self-esteem. Nor should it be forgotten that it can also protect children: a rightless child is more readily exposed to abuse and neglect.

Beyond “Anti-Smacking” - The Importance of Participation

Giving children participatory rights - and this would include giving children the right to vote - is also good for democracy; for participation is also about citizenship. What this shows is that, as Phillips and Alderson so astutely observed, we must get “beyond ‘anti-smacking’” (2003). What most under­ mines children’s protection is:

... a cultural system that constructs children as human becomings rather than human beings, and a power system that upholds “parents’ rights” over children’s human rights.

P H IL L IP S A N D A LD E R SO N , 2 0 0 2

Are children hum an beings? Certainly, the image projected by the Convention is of the child as, of course, vulnerable and in need of protection, but also as an active, developing hum an being with evolving capacities, a person entitled to respect for his/her hum an dignity as an autonomous hum an being. However, even those who advocate an end to the corporal punishm ent of children have used language which is disrespectful and discriminatory. Language contributes to the disempowerment and silencing of people denied recognition of their hum an rights; language also motivates positive changes in attitudes and behav­ iours, recognising, and uplifting the status of people entitled to inclusion and integrity (see Saunders and Goddard, 2001).

Phillips and Alderson well illustrate inappropriate language use when dis­ cussing a 1989 epoch leaflet. They contend that "[a] leaflet on discouraging men from hitting their partners would never use such language about women” (2003, p. 284). Try it out: epoch told parents (admittedly in 1989) that “we all know how maddening it can be to try to finish a chore against a child’s whin­ ing” (epoch, 1989, p. 5, cited in Phillips and Alderson, 2003 p. 284). Substitute “wife” for child - it is doubtful that you would find this in any anti-domestic violence campaign literature. We need positive anti-smacking literature. We need children’s views, and not just on smacking but on, amongst others, power, coercion, support, communication and autonomy. If one asked what percent­ age of people in a country favoured the “smacking” of children, one would almost certainly be told the percentage of adults, because children would not be counted in “people”. This may be thought particularly incongruous since children are the persons who are “smacked”.

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One consequence of treating children as “hum an beings" rather than as “hum an becomings” is that communication will replace coercion. A child with whom one has a dialogue is more likely to appreciate the value of language and of communication: a child who is hit will learn that violence is a solution to problems (it is not, of course) and that it is used in asymmetric power relation­ ships - so against smaller children, for example. It is surely not surprising that the cognitive abilities of children who are not “smacked" exceed those of their peers who have been “smacked” (Straus and Paschall, 2009, MacKenzie, Nicklas, Waldfogel and Brooks-Gunn, 2012).

Should we fear the Abolition of “Smacking”?

Another consequence is that even when “smacking” is eliminated - it will cer­ tainly diminish with legal bans - violence will continue, as Coppock puts it, through: ‘the power of adults, as parents and professionals, to define the oppo­ sitional behaviour of children and young persons as “illness” and “disorder”’ (2002:140). Drugs (Ritalin, for example), curfews, anti-social behaviour orders, show that physical punishment is part of:

... a domineering, non-communicative attitude towards the child, one which disregards the child’s opinions and views, leaves the child outside the realm of understanding and logic (Judith Karp, Vice chair of the u n Committee on the Rights of the Child, 1999, cited in.

PHILLIPS AND ALDERSON, 2 0 0 3 : 1 8 3

The defeat of smacking requires a reassessment of these attitudes, and policies too “because children are persons, not property; subjects, not objects of social concern or control; participants in social processes, not social problems” (Freeman, 1998:436). As Phillips and Alderson point out, ‘replacing smacking with respect, instead of with new enforcements, requires that children are rec­ ognised as social subjects and not simply as the objects of adult projects’ (2003:183).

The power system also needs to be challenged. There is too much emphasis on parents’ rights, on their autonomy, on the privacy of the “family” (that is of the adults) and, as noted above, the outdated but still lingering concept of ‘the child as property rather than person’ (Freeman, 1983). Bill Jordan put the dilemma perfectly when he wrote that:

... the case against intervention in family life often rests on the freedom of more powerful members (usually husbands in relation to wives and

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parents in relation to children) to exercise their pow er w ith o u t restric­ tion (1976, p. 60).

Goldstein, Freud and Solnit in their influential writings bestow little m ore than one right on the child, the “entitlem ent to autonom ous parents” (1973:90, see also Goldstein et al., 1979). It is all about “family integrity” (see Freeman, 1997, for a detailed critique o f Goldstein et alls stance on this concept). Behind parents’ rights are parents’ powers. This is - it certainly was - the case with husbands’ rights. Thus, Bell and Newby wrote of the power th at husbands had: “the power of the hand and the power of the purse” (1976:164). It is of note th at one of the early feminists (in the m odem manifestation o f feminism) had the foresight to realise th a t they had to challenge the oppression o f children as well as th at of women:

... or we will be subject to the sam e failing of w hich we have so often accused m en ... of having m issed an im portant substratum of oppression m erely because it didn’t directly concern us.

f ir e s t o n e , 1970, p.118, italics in original

But today, “m any feminists appear resolved to the parentalism th a t Firestone w arned against” (Phillips and Alderson, 2003:185). And so do many children’s activists w ho concentrate th eir attention on children’s issues outside the home. Of course, these issues are im portant, b u t there m ust be increased focus on the family if th e status o f children is to improve.

But, it is often said, to rid ourselves of corporal p u nishm ent is to open a can of worms. There is a concern th a t banning the hitting o f children will lead to greater intervention into the family, to more prosecutions o f parents, to more children going into state care. But this is n o t the experience o f countries w hich have ban n ed the hitting of children. Outlawing corporal p u n ish m en t is more likely to lead to fewer prosecutions, because there will be less abuse, to fewer proceedings to remove children from parents, and also to less delinquency and violent crime and thus a reduction in the prison population, because corporal p u n ish m en t teaches violence and the victims of today may becom e tom or­ row ’s violent crim inals (Gershoff, 2002; Straus an d Yodanis, 1996). In Sweden (see Durrant, 1999; 2000; Janson, Langberg an d Svensson, 2011), in the five years before the smacking ban, five children died at their p aren ts’ hands in “disci­ plinary" incidents; in the following 20 years, only one child suffered a similar fate. Since banning smacking, rates o f yo u th crime in Sweden have rem ained “steady” or declined, and rates of youth suicides have declined. The reporting of parental assaults on children has gone up, b u t prosecution rates have not increased and social work intervention into families has declined.

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And so banning corporal punishment could easily be justified on utilitarian grounds. But even were it to be effective, it could not be justified on moral grounds. There is no case. However it is dressed up - as a demonstration of love, for example - it is morally wrong. It is discriminatory: we do not justify assaults on anyone else. Of course, we once did - husbands could chastise wives, and masters could punish servants, for example. The physical punish­ m ent of children undermines their fundamental rights to respect for human dignity and physical integrity. Many states now have zero tolerance towards domestic violence, including England and Wales and Australia, which have explicitly ruled out banning the hitting of children. These countries are con­ cerned that a ban would fly in the face of public opinion but so did abolishing capital punishment, decriminalising homosexual acts and outlawing racial discrimination. Governments are there to lead, not slavishly follow. Law can be used for social engineering, though not in isolation from other policies. Law can change attitudes, as well as behaviour. The goal of legislation in countries which have implemented a ban is education of parents, rather than the subjec­ tion of parents to penal sanctions. And, of course, law reform would facilitate the improvement of children's lives and eventually the elimination of abuse.

But the world is slow to respond. As noted above, England and Wales, Canada and the state of New South Wales, Australia, have put in place nonsensical com­ promises which allow children to be hit but only to a degree. Such “solutions” are not appealing to anyone concerned about children’s rights or best interests. The reform in England and Wales followed the most disgraceful of consultation exer­ cises which ruled out respondents advocating the Swedish model. Forty coun­ tries have now banned parental hitting of children. The Supreme Court in one (Norway) back-tracked, so that for a while in Norway “lighter smacks” appeared to be permitted but the Government reviewed and legislatively amended this interpretation. The population in New Zealand reacted unfavourably to the 2007 reform, and a small (but vocal) section of the population unsuccessfully called for the ban to be repealed: a now most unlikely but still possible event.

Asia’s Reluctance to Ban Hitting Children

In an ideal childhood, discipline is consistent and empathetic; physical punish­ m ent is not considered - talking replaces hitting, and tolerance, understanding, gentle persuasion and negotiation, replace violent coercion (Saunders, 2013:299). W ith the exception of Israel, the only ‘democratic country’ in the Middle East, and Turkmenistan, which have outlawed parental hitting, there are few moves in Asia. Indeed, Nelson and colleagues, focusing particularly on

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Thailand’s steadfast comm itm ent to corporal punishm ent in the home, out­ lines “cultural, political, economic, religious and global challenges” that Thailand and other, particularly Asian countries, face in endeavours to ban violence against children, in all its forms and settings (2009, p. 17). There is no hint of this happening in Egypt, Syria, Saudi Arabia, the uae, Palestine (though in Yemen it is prohibited in schools). Otherwise, it is allowed in China, Japan, Korea, Thailand, Malaysia, India, Pakistan, Viet Nam, Cambodia and, it would seem, the rest of Asia. There is some commitment to prohibition made by a num ber of countries at the July 2006 meeting of the South Asia Forum, follow­ ing regional consultation of un Secretary General’s Study on Violence Against Children, for example by Bangladesh, Sri Lanka and Pakistan. However, in 2014, prohibition in these countries is yet to occur. Bangladesh appears to remain committed, as its recent involvement of the Ministry of Women and Children Affairs in South Asia Initiative to End Violence Against Children (saievac) activities suggests (epoch, 2014). In Taiwan, the government stated its comm itm ent to prohibition in August 2005, but corporal punish­ m ent is still not prohibited in the home (epoch, 2014). In the Philippines, various Bills have been filed but as noted on the epoch website in 2014:

In reporting to the Universal Periodic Review in 2012, the Government included Bill No. hb 4455 ‘on the promotion of positive discipline in lieu of corporal punishm ent’ in a list of ‘priority bills’ in the House of Representatives (19 March 2012, a/hrc/wg.6/i3/phl/i, National report to the upr, para. 82); as at April 2013 its counterpart Bill No. SB 873 is still pending in the Senate. Also pending in the Senate are Bill No. SB 1597 which would amend the Family Code to prohibit all corporal punishm ent and Bill No. 1107 which would amend the Special Protection of Children Against Abuse, Exploitation and Discrimination Act. (Republic Act 7610 1992) to prohibit all corporal punishment.

In 2009, in Mongolia, the Criminal Code was being revised and there have been plans to revise the Law on the Protection of the Rights of the Child and to amend the Family Law to prohibit corporal punishm ent but progress is still pending (epoch, 2014).

Conclusion

We will not conquer child abuse if we do not outlaw physical punishment. Even when physical punishment does not result in injuries commonly perceived to

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be abusive, research now convincingly suggests that disregarding the risks that physical punishment in childhood pose to children’s well-being and optimal development into adulthood arguably amounts to child abuse (see, in particu­ lar, Gershoff, 2013).

If child abuse is to be tackled more successfully, there must be a new vision of childhood. A conception of childhood must be developed which acknowl­ edges the personality and integrity of children ... To protect children one must also protect their rights ... Children must be seen as individuals, not merely as "assets" or even subsumed within a family and its interests.

FREEMAN, 1994:93

Promisingly, in Hester et alls research, 73 per cent of 498 Chinese university students proposed “better communication between parents and children” as “key” to reducing the use of physical punishment, and some students sug­ gested that physical punishm ent is no longer acceptable:

No m atter what they have done, beating children, in my opinion, should belong to domestic violence [identified as criminal behaviour in the Chinese 2001 Marriage Act (Marriage Law 2001)]. I hope that parents do not beat their children. They should be modest and unassuming and communicate with their children. (Interview with Li, young female Chinese student) (2009:411).

We contend that the corporal punishment of children will be banned in Asia, as elsewhere. Parents and others responsible for children’s care and protection will be persuaded to stop habitually “hitting children because it is wrong ... as it is wrong to hit adults ... The twenty-first century must consign it to history” (Freeman, 1999:139). And when physical chastisement is outlawed, we will have nailed a further nail in the coffin of child abuse, and we will have finally advanced the status of children.

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