SUBMISSION ON THE CHILDREN'S BILL RELATING TO CORPORAL PUNISHMENT

This submission strongly recommends that the prohibition of corporal punishment of children in all forms as a protective measure be provided for in the Children's Bill reintroduced in terms of section

75 procedures. South African law prohibits corporal punishment of children in care institutions and

foster care, the juvenile justice system and in schools. However, parents in South Africa are still

allowed to administer corporal punishment as a method of childrearing. This is made possible by the right of parents charged with assault to evoke the right to reasonable chastisement of their

children as a defence in court.

Save the Children Sweden believes that corporal punishment of children in all its forms violates the

human rights of children to physical integrity and human dignity upheld in the UN Convention on

the Rights of the Child, the African Charter on the Rights and Welfare of the Child as well as the

South African Constitution.

BACKGROUND OF THE ORGANISATION

Save the Children Sweden is a non-governmental organisation, independent of any political party or religion, working for the rights of the child all over the world. Save the Children Sweden advocates a child-friendly society and empowers and supports children as to achieve lasting improvements in their lives. The United Nations Convention on the Rights of the Child is fundamental to all the work carried out by the organisation. Save the Children Sweden is an active member of the International Save the Children Alliance, the world's leading child rights organisation and an umbrella organisation of 30 member organisations which are working together in over 120 countries around the world.

In South Africa, Save the Children Sweden primarily works with and funds local civil society

partners to promote children's rights. Emphasis is placed on strategic issues such as children

exposed to violence and abuse, including corporal punishment, children who are discriminated

against on the basis of gender and/or disability as well as children infected and affected by

HIV/Aids. Save the Children Sweden also promotes the UN Convention on the Rights of the Child

with a focus on child friendly laws, child poverty, human rights for children as well as children's

mobilisation, participation and involvement in family life, decision-making and the media.

Save the Children Sweden has comprehensive experience in work relating to the abolition of

corporal punishment in Sweden and other countries around the world.

LEGAL OBLIGATIONS TO PROHIBIT ALL FORMS OF CORPORAL PUNISHMENT

Corporal punishment breaches fundamental human rights to respect for human dignity and physical

integrity. The existence of special defences in state laws excusing violence by parents breaches

children's rights to equal protection under the law.

The UN Convention on the Rights of the Child, Article 19, protects children from all forms of

physical and mental violence and this protection extends to corporal punishment'. The Committee

on the Rights of the Child, which monitors implementation of the Convention, has emphasised that

corporal punishment in the family, or in schools and other institutions, or in the penal system is

incompatible with the Convention. The Committee has also proposed that legal reforms be coupled

with awareness raising and education caropaigns in positive discipline of children to support

parents, teachers and others. In examining South Africa's initial State Party report on the

implementation of the Convention, the Committee recommended that South Africa takes effective

measures to prohibit by law the use of corporal punishment in the family

The African Charter on the Rights and Welfare of the Child also protects children form all forms of

physical and mental abuse (Article 16) and thereby prohibits all forms of corporal punishment of

children.

South Africa has ratified both the UN Convention and the African Charter and it is thus bound by

its obligations to abolish corporal punishment of children.

Moreover, the Constitution of South Africa Section 12 in the Bill of Rights states that everyone has

the right to freedom and security of the person, including freedom from all forms of violence from

either public or private sources, and that everyone has the right to bodily and psychological integrity. Section 10 confirms the right to human dignity. These provisions are also for the

protection of children since Section 9 sets out that everyone is equal before the law and that

discrimination on the basis of age is prohibited. Furthermore Section 28 (l)(d) of the Bill of Rights

protects children from neglect, maltreatment, abuse and degradation. The right of parents to

administer corporal punishment is thus in contradiction of the Constitutional protection of

children's rights to bodily integrity, protection from violence and abuse and everyone's equality

before the law.

An early case before the Constitutional Court found judicial corporal punishment to be

unconstitutional and since, the Constitutional Court has confirmed that the ban of corporal

punishment in schools is in conformity with the Constitutions

Sweden is one often countries that so far have prohibited the use of corporal punishment of

children in all spheres of society.

n the 1950's the Swedish Penal Code still exempted a person from punishment in the event that the

person, in the course of exercising his or her legal right to beat someone under his or her guardianship, caused injury of a minor nature. This provision was repealed in 1957, and there were

similar changes in the civil law in the 1960s. In 1979 a provision was included in the Swedish

Parental Code explicitly banning physical punishment or other degrading treatment of children. The

provision was not linked to a rule of prosecution or with any penalty for violating the provision. Its

purpose was to tell parents that chastisement is not an acceptable way to bring up children, and to

emphasise that the criminal law on assault applied equally to "disciplinary" assaults of children by

their parents. The ban of corporal punishment in the Parental Code went hand in hand with awareness raising and a recurrent general parental education programme. A small group of parents

in Sweden, who opposed the law, turned to the European Commission of Human Rights, appealing

that the ban affected their rights to family life and religious freedom. However, the European

Commission dismissed the application

An opinion poll conducted in the beginning of the 1970s revealed that 30 % of the Swedish

population considered physical punishment an indispensable tool in the upbringing and education of children. The prohibition of corporal punishment was thus introduced despite lack of strong public

support. However, legal reform together with awareness raising and training has changed public

opinion. Resent research (2000) indicates that an overwhelming majority of the population (92%)

are opposed to all forms of physical punishment of children.

Research and surveys conducted both internationally and in South Africa show that corporal

punishment in the home is of major to concern to many children.

In 1992 a group of South African children were gathered to formulate the Children's Charter of

South Africa. They suggested that:

In preparation for the report on the new Children's Bill, the South African Law Commission

undertook consultations with children. Here children themselves raised the matter of corporal

punishment. When asked what rights children should have (in addition to the rights which everyone

has) an important common response was the right to be protected from harm. A number of children

explicitly identified the right not to be beaten as being significant .

In 2002 Save the Children Sweden conducted a nation-wide Opinion Poll with a representative

sample of 1200 children in South Africa. In the Opinion Poll, children were asked what rights are

most violated in their lives. One of the most important violations of children's rights is lack of

protection from abuse, including corporal punishment from teachers, parents and other caregivers

such as uncles and brothers .

"Parents, they should stop beating children. They must learn a better way of dealing with children "

Girl in primary school

It has also become clear that even a "light" blow by an adult is a shocking event for a child. A

survey in England asked children: "What does a smack feel like?""

"It feels like someone banged you with a hammer"

Girl aged five

"It hurts and it's painful inside - it's like breaking your bones "

Girl aged seven

NO PROVISION IN THE CHILDREN'S BILL ON CORPORAL PUNISHMENT

While the South African Law Commission's (SALC) version of the Bill did not include an explicit

prohibition of corporal punishment by parents in the home, it did try to address the situation of

corporal punishment by parents by abolishing the common law defence of reasonable chastisement which is currently available to parents. This would have been achieved by Section 142 (2) of the SALC version of the Bill, which states that:

"142 (2) The common law defence of reasonable chastisement available to persons referred to in subsection (1) in any court proceedings is hereby abolished. "

Section 142 (2) of the SALC version of the Bill thus has the effect that when parents are charged

with assault against their children, they would no longer be able to rely on the defence of reasonable

chastisement. The inclusion of this section would therefore prevent a parent charged with assault

from escaping liability for physically punishing their child and would give children equal protection

under the law.

The latest draft of the reintroduced Children's Bill in terms of section 75 does not have any

provision on the prohibition of corporal punishment at all. This means that parents who administer

corporal punishment can still rely on the common law defence of reasonable chastisement and use

this as a ground of justification in any court proceedings.

It is imperative that the children's Bill reintroduced in terms of section 75 has a provision

prohibiting corporal punishment in the home, by parents or other persons acting in loco parentis.

The provision should also reiterate and reinforce the prohibition that already applies in all the courts

schools and other care facilities. It is our submission that a clear prohibition will serve to create

uniformity by establishing norms and standards, create a framework on which awareness and

education campaigns can be developed as well as creating a national policy on the prohibition of

corporal punishment.

In line with international and regional human rights treaties, there is now an international move

towards abolishing all forms of corporal punishment of children whether in care institutions,

juvenile justice systems, schools or within the family.

Research into harmful physical and emotional effects of corporal punishment and into links with the

development of other forms of violence in childhood and later in life add further compelling

arguments for legal reform.

Both the UN Convention on the Rights of the Child and the South African Constitution clearly state

that the best interest of the child is of paramount importance in every matter concerning the chi d'2

Violence and abuse of children in whatever form and lack of equal protection of children from

abuse under the law cannot be considered to be in the best interest of the child.

In South Africa interpersonal violence is endemic and conflicts are in many instances resolved by violent means. The right of parents to use corporal punishment contributes to a perception from an early age that violence is an appropriate response to conflict and unwanted behavior. A total ban of

corporal punishment would be one way of combating crime and violence in South Africa. It would also be in line with South Africa's progressive approach to human rights and all persons' equality

before the law.

Legislation will not end the use of corporal punishment on its own. To eliminate the use of corporal

punishment legal reform has to go hand in hand with awareness raising and public education to change attitudes and to promote positive non-violent forms of discipline. However, legal reform is

essential to send a clear message that corporal punishment is no longer an acceptable form of child rearing. This is a key issue on which politicians need to lead, not follow, public opinion, on the basis of human rights. Research also shows that public attitudes change rapidly when legal change is accompanied by awareness raising and education. As long as the law allows corporal punishment, it will be used as a defense to continue to administer corporal punishment.

By ratifying the UN Convention on the Rights of the Child and the African Charter on the Rights

and Welfare of the Child South Africa has committed itself to ensure children's rights to equal protection from violence and abuse and to take legislative measures to prohibit all forms of corporal

punishment of children. Furthermore, the South African Constitution is clear in its message that all

children should be protected from any form of violence and abuse and to have their human dignity

protected. The existence of laws and special defences in laws excusing any form of corporal

punishment of children thus contravenes the spirit and letter of the Constitution.

South Africa has now an opportunity to act on its commitments and prohibit corporal punishment

within the family environment in the Children's Bill.

1. A new provision in the Children's Bill reintroduced in terms of section 75 is added explicitly prohibiting all forms of corporal punishment or any other degrading treatment of children, including corporal punishment administered by parents or other persons acting in loco parentis or in child care centres, partial care facility, shelter or drop in centre

Even if this explicit ban is not linked to a penalty for violating the provision, it gives a clear message that corporal punishment is not an acceptable way of child rearing. A prohibition of all forms of corporal punishment in the Children's Bill will also provide a clear legal basis for awareness raising and training.

2. That the clause abolishing the defence of reasonable chastisement included in the SALC's

version of the Bill be reinserted in the Children's Bill and thus staling that: "The common law defence of reasonable chastisement available to persons referred to in subsection (1) in any court proceedings is hereby abolished.". The inclusion of this paragraph in the Bill would prevent parents charged with assaulting their children from escaping liability for physically punishing their children.