Upholding the dignity and best interests of children: International law and the corporal punishment of children

Law and Contemporary Problems

Volumn 73, Issue 2, 2010, Pages 211-251

  Freeman, Michael D A ^a  

^a UNIVERSITY COLLEGE LONDON   (United Kingdom)

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EID: 78649399615     PISSN: 00239186     EISSN: None     Source Type: Journal    
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References (233)

1. Exodus 20:12; Deuteronomy 5:16.
2. On religion and corporal punishment of children, see generally PHILIP GREVEN, SPARE THE CHILD (1991).
3. Richard Helmholz, And Were There Children's Rights in Early Modern England?, 1 INT'L J. CHILD. RTS. 23, 27 (1993).
4. ELIZABETH PLECK, DOMESTIC TYRANNY 22 (1987).
5. CHARLOTTE BRONTË, JANE EYRE (1847).
6. SAMUEL BUTLER, THE WAY OF THE FLESH (1903).
7. CHARLES DICKENS, DAVID COPPERFIELD (1850).
8. CHARLES DICKENS, NICHOLAS NICKLEBY (1839).
9. CHARLES DICKENS, OLIVER TWIST (1839).
10. D.H. LAWRENCE, THE RAINBOW (1915).
11. RICHARD LLEWELLYN, HOW GREEN WAS MY VALLEY (1939).
12. LUCY MAUD MONTGOMERY, ANNE OF AVONLEA (1909).
13. FRANK RICHARDS, BILLY BUNTER OF GREYFRIARS SCHOOL (1947).
14. See generally EDWARD ANTHONY, THY ROD AND STAFF (1995).
15. HUGH CUNNINGHAM, CHILDREN OF THE POOR (1991).
16. JOHN WALLER, THE REAL OLIVER TWIST 109-15 (2006).
17. JAMES WALVIN, A CHILD'S WORLD 45-60 (Penguin Books 1982), especially ch. 3.
18. See ANTHONY PLATT, THE CHILD SAVERS: THE INVENTION OF DELINQUENCY 3 (1969).
19. See GEORGE K. BEHLMER, CHILD ABUSE AND MORAL REFORM IN ENGLAND 1870-1908 (1982).
20. See JOSEPH M. HAWES, THE CHILDREN'S RIGHTS MOVEMENT: A HISTORY OF ADVOCACY AND PROTECTION 21 (1991).
21. The etymology of chastisement is interesting. It originates in the same source as "chaste," and thus denotes "making pure.".
22. NICHOLAS ORME, MEDIEVAL CHILDREN 84 (2001).
23. KATE DOUGLAS WIGGIN, CHILDREN'S RIGHTS 19 (1892).
24. ELLEN KEY, THE CENTURY OF THE CHILD 317 (1909) (originally published in Swedish in 1900).
25. See BETTY J. LIFTON, THE KING OF CHILDREN 338-45 (1988).
26. JANUSZ KORCZAK, LOVING EVERY CHILD-WISDOM FOR PARENTS xi (Sandra Joseph ed., 2007).
27. (Good selection of Korczak's writings in English).
28. See generally JANUSZ KORCZAK, GHETTO DIARY (2003) (recording Korczak's thoughts in the Warsaw Ghetto in 1942).
29. JANUSZ KORCZAK, PRAWO DZIECKA DO SZACUNKU [THE CHILD'S RIGHT TO RESPECT] (1929).
30. Dominique Marshall, The Construction of Children as an Object of International Relations: The Declaration of Children's Rights and the Child Welfare Committee of the League of Nations, 1900-1924, 7 INT'L J. CHILD. RTS. 103, 103 (1999).
31. PHILIP E. VEERMAN, THE RIGHTS OF THE CHILD AND THE CHANGING IMAGE OF CHILDHOOD 96 (1992).
32. Declaration on the Rights of the Child, G.A. Res. 1386, U.N. Doc. A/4354 (Nov. 20, 1959).
33. See UN Convention on the Rights of the Child art. 3, para. 1, opened for signature Nov. 20, 1989, 1577 U.N.T.S. 3.
34. GIORGIO AGAMBEN, REMNANTS OF AUSCHWITZ: THE WITNESS AND THE ARCHIVE 66 (1999).
35. See generally IMMANUEL KANT, GROUNDWORK OF THE METAPHYSIC OF MORALS 97 (H. Paton trans., 1948).
36. See generally TOM PAINE, RIGHTS OF MAN (Henry Collins ed., Penguin Books 1969). Paine did not go so far as to talk of the dignity of a child.
37. See MARY ANN GLENDON, A WORLD MADE NEW: ELEANOR ROOSEVELT AND THE UNIVERSAL DECLARATION OF HUMAN RIGHTS 144 (2001).
38. This article shall not address questions whether dignity can exist in a stratified society, even one like Nazi Germany, where, of course, dignity was denied to non-Aryans (as well as to Communists, homosexuals, et cetera).
39. For these debates, see generally CHRISTIAN JOERGES & NAVRAJ SINGH GHALEIGH, DARKER LEGACIES OF LAW IN EUROPE: THE SHADOW OF NATIONAL SOCIALISM AND FASCISM OVER EUROPE AND ITS LEGAL TRADITIONS 264-66 (2003).
40. See generally Anne McGillivray,'He'll Learn It On His Body': Disciplining Childhood in Canadian Law, 5 INT'L J. CHILD. RTS. 193 (1997).
41. The Preamble (in its first paragraph) recognizes "the inherent dignity" and "the equal and inalienable rights of all members of the human family" as the "foundation of freedom, justice and peace in the world.".
42. See generally MICHAEL FREEMAN, A COMMENTARY ON THE UNITED NATIONS CONVENTION ON THE RIGHTS OF THE CHILD: ARTICLE 3-THE BEST INTERESTS OF THE CHILD (2007).
43. Robert H. Mnookin, Child Custody Adjudication: Judicial Functions in the Face of Indeterminacy, 39 LAW & CONTEMP. PROBS. 226, 260 (Summer 1975).
44. See Helen Reece, The Paramountcy Principle: Consensus or Construct? 49 CURRENT LEGAL PROBS. 267, 286-303 (1996) (criticizing the application of the "best interests" principle to deny homosexual parents custody of their children).
45. James G. Dwyer, Parental Entitlement and Corporal Punishment, 73 LAW & CONTEMP. PROBLS. 189 (Spring 2010).
46. Irene Théry, "The Interest of the Child" and the Regulation of the Post-Divorce Family, in CHILD CUSTODY AND THE POLITICS OF GENDER 78, 81 (Carol Smart & Selma Sevenhuijsen eds., 1989).
47. See ALLEN BUCHANAN & DAN BROCK, DECIDING FOR OTHERS: THE ETHICS OF SURROGATE DECISION MAKING 247 (1989) (discussing the two types of interests in the context of infants).
48. Comm'n on Human Rights, Question on a Convention on the Rights of the Child, at 2-3, U.N. Doc. E/CN.4/1349 (Jan. 17, 1980).
49. SHARON DETRICK, A COMMENTARY ON THE UNITED NATIONS CONVENTION ON THE RIGHTS OF THE CHILD 90 (1999).
50. (Citing U.N. Doc. E/CN.4/L.1575, ¶ 20 (1981)).
51. Somalia is the other, and it does not have a Government. It is said you should be known by the company you keep!.
52. See Comm'n on Human Rights, 45th Sess., Item 13 ¶¶ 117, 126, E/CN.4/1989/48 (Mar. 2, 1989).
53. There is a clear preference for the nuclear family structure implicit in Article 18.
54. See Frances Olsen, Children's Rights: Some Feminist Approaches to the United Nations Convention on the Rights of the Child, in CHILDREN, RIGHTS AND THE LAW 192, 199 (Philip Alston, Stephen Parker & John Seymour eds., 1992) (noting that the provision makes both parents responsible for children).
55. Comm. on the Rights of the Child, Concluding Observations: Australia, ¶ 15, U.N. Doc. CRC/C/15/Add.79 (Oct. 10, 1997).
56. Comm. on the Rights of the Child, Concluding Observations: Canada, ¶ 25, U.N. Doc. CRC/C/15/Add.37 (June 20, 1995).
57. Comm. on the Rights of the Child, Concluding Observations: Czech Republic, ¶ 18, U.N. Doc. CRC/C/15/Add.81 (Oct. 27, 1997).
58. Comm. on the Rights of the Child, Concluding Observations: United Kingdom of Great Britain and Northern Ireland, ¶ 31, U.N. Doc. CRC/C/15/Add.34 (Feb. 15, 1995).
59. See, e.g., Children Act, 2004, c. 31, § 58 (Eng., Wales).
60. This was the evidence in Canada (which has effected a similar compromised measure).
61. See Joan Durrant, Nadine Sigvaldason & Lisa Bednar, What Did the Canadian Public Learn from the 2004 Supreme Court Decision on Physical Punishment?, 16 INT'L J. CHILD. RTS. 229, 242-43 (2008).
62. (Study results indicated that a majority of parents focused on right to use force, not the limitations on the use of force, after Canada's Supreme Court issue a ruling on the corporal punishment).
63. Comm. on the Rights of the Child, Concluding Observations: Fiji, ¶ 16, U.N. Doc. CRC/C/15/Add.89 (June 24, 1998).
64. Comm. on the Rights of the Child, Concluding Observations: Ghana, ¶ 36, U.N. Doc. CRC/C/15/Add.73 (June 18, 1997).
65. Comm. on the Rights of the Child, Concluding Observations: Ireland, ¶ 16, U.N. Doc. CRC/C/15/Add.85 (Feb. 4, 1998).
66. Comm. on the Rights of the Child, Concluding Observations: Jamaica, ¶ 7, U.N. Doc. CRC/C/15/Add.32 (Feb. 15, 1995); Comm. on the Rights of the Child, Concluding Observations: Jamaica, ¶ 33, U.N. Doc. CRC/C/15/Add.210 (July 4, 2003).
67. Comm. on the Rights of the Child, Concluding Observations: Democratic People's Republic of Korea, ¶ 13, U.N. Doc. CRC/C/15/Add.88 (June 5, 1998); Comm. on the Rights of the Child, Concluding Observations: Republic of Korea, ¶ 38, U.N. Doc. CRC/C/15/Add.197 (Mar. 18, 2003).
68. Comm. on the Rights of the Child, Concluding Observations: Kyrgyzstan, ¶ 40, U.N. Doc. CRC/C/15/Add.127 (Aug. 9, 2000).
69. Comm. on the Rights of the Child, Concluding Observations: Lebanon, ¶¶ 38-39, U.N. Doc. CRC/C/15/Add.169 (Mar. 21, 2002).
70. Comm. on the Rights of the Child, Concluding Observations: Senegal, ¶ 24, U.N. Doc. CRC/C/15/Add.44 (Nov. 27, 1995).
71. Comm. on the Rights of the Child, Concluding Observations: Togo, ¶ 40, U.N. Doc. CRC/C/15/Add.83 (Oct. 10, 1997).
72. It is surprising that caning is not specifically cited in the reports of other countries where it remains prevalent. The Committee has also issued General Comment No. 8 on the topic of corporal punishment. See infra VI.
73. See generally Comm'n on Human Rights, Report of the Working Group on a Draft Convention on the Rights of the Child, Annex II, U.N. Doc. E/CN.4/1983/62 (Mar. 23, 1983) (and papers cited therein).
74. Comm. on the Rights of the Child, General Guidelines for Periodic Reports, ¶¶ 88, 92, U.N. Doc. CRC/C/58, 22-23 (Nov. 20, 1996).
75. The comment pertains specifically to Articles 19, 28(2), and 37, inter alia. It was adopted by the Committee at its forty-second session in Geneva in May and June of 2006.
76. Comm. on the Rights of the Child, General Comment No. 8: The Right of the Child to Protection from Corporal Punishment and Other Cruel or Degrading Forms of Punishment, U.N. Doc. CRC/C/GC/8 (Mar. 2, 2007), available at www2.ohchr.org/english/bodies/crc/comments.htm.
77. JOHN STUART MILL, ON LIBERTY 158 (David Bromwich & George Kateb eds., Yale Univ. Press 2003) (1859).
78. This view is commonly espoused by writers who take a negative view of children's rights.
79. See, e.g., JOSEPH GOLDSTEIN, ANNA FREUD, SONJA GOLDSTEIN & ALBERT SOLNIT, THE BEST INTERESTS OF THE CHILD (1996).
80. MARTIN GUGGENHEIM, WHAT'S WRONG WITH CHILDREN'S RIGHTS (2005).
81. My critiques of these books can be found respectively at Michael Freeman, The Best Interests of the Child? Is The Best Interests of the Child in the Best Interests of Children?, 11 J.L. POL'Y & FAM. 360, 360-88 (1997).
82. Michael Freeman, What's Right With Rights For Children, 2 INT'L J.L. IN CONTEXT 89, 89-98 (2006).
83. But see Wisconsin v. Yoder, 406 U.S. 205, 232 (1972) (The "primary role of the parents in the upbringing of their children is now established beyond debate as an enduring American tradition" per Chief Justice Burger).
84. See also M.D.A. FREEMAN, THE RIGHTS AND WRONGS OF CHILDREN 244-77 (1983) (discussing the role of the state in child-rearing decisions).
85. (Deconstructing the arguments of the religious lobby by a careful examination of the texts and history).
86. Children Are Unbeatable! Newsletter (April 2010), http://www.childrenareunbeatable.org.uk/pdfs/newsletters/CAU-Issue02.pdf.
87. A further twenty-four have made public commitments to full prohibition or are actually considering draft legislation to achieve this.
88. See Global Initiative to End All Corporal Punishment of Children, www.endcorporalpunishment.org (last visited Oct. 11, 2009) (collection of the latest data country-by-country).
89. Since the above works were written Poland and Lichtenstein have passed anti-spanking legislation and Tunisia and Kenya have become the first African countries to make it unlawful to hit children.
90. Comm. on the Rights of the Child, General Comment No. 1: The Aims of Education, ¶ 8, U.N. Doc. CRC/GC/2001/1 (Apr. 17, 2001), available at http://www2.ohchr.org/english/bodies/crc/comments.htm.
91. In 1979 Sweden added a provision to its Parenthood and Guardianship Code which (now) reads: "Children are entitled to care, security and a good upbringing. Children are to be treated with respect for their person and individuality and may not be subjected to corporal punishment or any other humiliating treatment." Föräldrabalk [FB] [Parents Code] 6:1 (Swed.). There are many accounts (in English) of the Swedish law and experience.
92. See, e.g., SUSAN H. BITENSKY, CORPORAL PUNISHMENT OF CHILDREN-A HUMAN RIGHTS VIOLATION 154-60 (2006).
93. See also Joan E. Durrant, Legal Reform and Attitudes Towards Physical Punishment in Sweden, 11 INT'L J. CHILD. RTS. 147, 147-73 (2003).
94. By now twenty-nine countries have outlawed corporal punishment of children by parents.
95. See School Standards and Framework Act, 1998, c. 31, § 131 (Eng.) (barring the use of corporal punishment in any school). Anecdotal evidence suggests it is still practiced "unofficially.".
96. Comm. on the Rights of the Child, Concluding Observations: United Kingdom of Great Britain and Northern Ireland, U.N. Doc. CRC/C/15/Add.188 (Oct. 9, 2002).
97. Comm. on the Rights of the Child, Concluding Observations: United Kingdom of Great Britain and Northern Ireland, U.N. Doc. CRC/C/GBR/Co/4 (Oct. 20, 2008).
98. The Committee added: the United Kingdom "should use these recommendations as a tool for action in civil society and in particular with the involvement of children, to ensure that every child is protected from all forms of physical, sexual and mental violence...
99. In the United Kingdom's case this may be justifiably contested, but this is how the Brown Government would identify itself.
100. Comm. on the Rights of the Child, Concluding Observations: Spain, ¶ 10, U.N. Doc. CRC/C/15/Add.28(Oct. 24, 1994).
101. Comm, on the Rights of the Child, Concluding Observations: Spain, ¶ 30, U.N. Doc. CRC/C/15/Add.185 (June 13, 2002).
102. It did so in 2007, as indicated in Article 154 of the Spanish Civil Code. C.C. art. 154.
103. See 2 CYNTHIA PRICE COHEN, JURISPRUDENCE ON THE RIGHTS OF THE CHILD 1565-780 (2005) (summarizing the Committee's criticisms of each country's implementation of Articles 19 and 39).
104. Bulgaria was criticized in Comm. on the Rights of the Child, Concluding Observations: Bulgaria, ¶ 30, U.N. Doc. CRC/C/15/Add.66 (Jan 24, 1997). It passed legislation in 2000.
105. See also Velina Todorova, Children's Rights in Bulgaria After the End of Communism 17 INT'L J. CHILD. RTS. 623, 630 (2009).
106. Criticized in 2003, Comm. on the Rights of the Child, Concluding Observations: Cyprus, ¶ 46, U.N. Doc. CRC/C/15/Add.205 (July 2, 2003). This criticism was strange, though, for Cyprus had already passed its Prevention of Violence in the Family and Protection of Victims Law (in June 1994) (now Law 119 (I) of 2000).
107. Comm. on the Rights of the Child, Concluding Observations: Republic of Moldova, ¶ 31, U.N. Doc. CRC/C/15/Add.192 (Oct. 31, 2002).
108. It passed legislation in 2008. Global Initiative to End All Corporal Punishment of Children, States with Full Abolition, http://www.endcorporalpunishment.org/pages/progress/prohib_states.html (last visited Apr. 3, 2010).
109. Comm. on the Rights of the Child, Concluding Observations: Netherlands, ¶ 17, U.N. Doc. CRC/C/15/Add.114 (Oct. 26, 1999) (exhorting the Netherlands to come into line with developments in other European countries). The Netherlands passed legislation in 2007.
110. Comm. on the Rights of the Child, Concluding Observations: New Zealand, ¶ 16, U.N. Doc. CRC/C/15/Add.71 (Jan. 24, 1997). It passed legislation in 2007.
111. New Zealand was the first Englishspeaking country to effect such a reform, but a threatened referendum might undo it. The referendum is being conducted as this is being written (July 2009). Eighty-seven percent of those voting opposed the ban (children did not, of course, have the vote).
112. Voting results are available at http://www.electionresults.govt.nz/2009_citizens_referendum/2009_referendum_results.html.
113. Comm. on the Rights of the Child, Concluding Observations: Romania, ¶ 42, U.N. Doc. CRC/C/15/Add.199 (Mar. 18, 2003). It passed legislation in 2004.
114. Parental corporal punishment ceased to be lawful in 1983 (though there was an attempt to achieve this even earlier in 1969).
115. Comm. on the Rights of the Child, Concluding Observations: Finland, ¶ 39, U.N. Doc. CRC/C/15/Add.132 (Oct. 16, 2000).
116. Comm. on the Rights of the Child, Concluding Observations: Haiti, ¶ 36, U.N. Doc. CRC/C/15/Add.202 (Mar. 18, 2003) (The August 2001 Act prohibiting corporal punishment is "welcome[d]" by the Committee.). I have been unable to verify the existence of this Act, but the Global Initiative.
117. See Comm. on the Rights of the Child, Concluding Observations: Zambia, ¶ 30, CRC/C/15/Add.206 (July 2, 2003) (citing the Constitutional Court case as John Banda v. the People, HPA/6/1998). The Committee comments that corporal punishment is still practiced and accepted in schools, families, and in care- and juvenile-detention facilities, and recommends legislation.
118. Comm. on the Rights of the Child, Concluding Observations: Trinidad and Tobago, ¶ 31, U.N. Doc. CRC/C/15/Add.82 (Oct. 10, 1997).
119. Comm. on the Rights of the Child, Concluding Observations: Jamaica, ¶¶ 32-33, U.N. Doc. CRC/C/15/Add.210 (July 4, 2003).
120. Comm. on the Rights of the Child, Concluding Observations: Algeria, ¶¶ 21, 35, U.N. Doc. CRC/C/15/Add. 76 (June 18, 1997).
121. Comm. on the Rights of the Child, Concluding Observations: Cameroon, ¶ 41, U.N. Doc. CRC/C/15/Add.164 (Nov. 6, 2001).
122. Comm. on the Rights of the Child, Concluding Observations: Egypt, ¶¶ 37-38, U.N. Doc. CRC/C/15/Add.145 (Feb. 21, 2001).
123. Comm. on the Rights of the Child, Concluding Observations: Guinea Bissau, ¶ 30 U.N. Doc. CRC/C/15/Add.177 (June 13, 2002).
124. Comm. on the Rights of the Child, Concluding Observations: Libyan Arab Jamahiriya, ¶ 29, U.N. Doc. CRC/C/15/Add. 84 (Feb. 4, 1998); Comm. on the Rights of the Child, Concluding Observations: Libyan Arab Jamahiriya, ¶ 34(b), U.N. Doc. CRC/C/15/Add.209 (July 4, 2003).
125. Comm. on the Rights of the Child, Concluding Observations: Malawi, ¶ 33, U.N. Doc. CRC/C/15/Add.174 (Apr. 2, 2002).
126. Comm. on the Rights of the Child, Concluding Observations: Morocco, ¶ 42, U.N. Doc. CRC/C/15/Add.211 (July 10, 2003).
127. Comm. on the Rights of the Child, Concluding Observations: Mozambique, ¶ 38, U.N. Doc. CRC/C/15/Add.172 (Apr. 3, 2002).
128. Comm. on the Rights of the Child, Concluding Observations: Niger, ¶ 45, U.N. Doc. CRC/C/15/Add.179 (June 13, 2002).
129. Comm. on the Rights of the Child, Concluding Observations: Sudan, ¶ 35, U.N. Doc. CRC/C/15/Add.190 (Oct. 9, 2002).
130. See Daksha Kassan, The Protection of Children from All Forms of Violence-African Experiences, in CHILDREN'S RIGHTS IN AFRICA: A LEGAL PERSPECTIVE 165, 176 (Julia Sloth-Nielsen ed., 2008).
131. Comm. on the Rights of the Child, Concluding Observations: Togo, ¶ 40, U.N. Doc. CRC/C/15/Add.83 (Oct. 10, 1997).
132. Comm. on the Rights of the Child, Concluding Observations: Zimbabwe, ¶ 18, U.N. Doc. CRC/C/15/Add.55 (June 7, 1996).
133. Office of the UN High Commissioner for Human Rights, The United Nations Study on Violence Against Children, available at http://www2.ohchr.org/english/bodies/crc/study.htm.
134. The Secretary-General, Report of the Independent Expert for the United Nations Study on Violence Against Children, ¶ 1, U.N. Doc. A/61/299 (Aug. 29, 2006), available at http://www.unicef.org/violencestudy/reports/SG_violencestudy_en.pdf.
135. UN International Covenant on Civil and Political Rights art. 7, opened for signature Dec. 16, 1966, 999 U.N.T.S. 171.
136. Human Rights Comm., General Comment No. 20: Replaces General Comment 7 Concerning Prohibition of Torture and Cruel Treatment or Punishment (Art. 7), ¶ 5, U.N. Doc. HRI/GEN/1/Rev. 9 (Mar. 10, 1992), available at http://www.unhchr.ch/tbs/doc.nsf/(Symbol)/6924291970754969c12563ed004c8ae5?Opendocument.
137. One example is Poland. Human Rights Comm., Concluding Observations: Poland, ¶ 25, U.N. Doc. CCPR/C/79/Add. 110 (July 29, 1999).
138. Comm. on Econ., Soc. and Cultural Rights, General Comment 13: The Right to Education (Art. 13), U.N. Doc. E/C.12/1999/10 (Dec. 8, 1999).
139. Comm. on Econ., Soc. and Cultural Rights, Concluding Observations: United Kingdom of Great Britain and Northern Ireland, ¶ 36, U.N. Doc. E/C.12/1/Add.79 (June 5, 2002). They made a similar recommendation to Malta in 2004, recommending that Malta consider an explicit prohibition on corporal punishment within the family. Comm. on Econ., Soc. and Cultural Rights, Concluding Observations: Malta, ¶¶ 22, 40, U.N. Doc. E/C. 12.1/Add.101 (Dec. 14, 2004).
140. See, e.g., Comm. Against Torture, Concluding Observations of the Committee Against Torture: Jordan, ¶ 177, U.N. Doc. A/50/44 (July 26, 1995); Comm. Against Torture, Report of the Committee Against Torture, ¶ 65(i), U.N. Doc. A/51/44 (July 9, 1996).
141. Special Rapporteur Against Torture, Report of Special Rapporteur Against Torture on Cruel, Inhuman or Degrading Treatment or Punishment, ¶ 28, delivered to the General Assembly, U.N. Doc. A/60/316 (Aug. 30, 2005).
142. Special Rapporteur Against Torture, Report of Special Rapporteur Against Torture on Cruel, Inhuman or Degrading Treatment, ¶ 26, U.N. Doc. E/CN.4/2003/68 (Dec. 17, 2002).
143. Statute of the Council of Europe art. 3, opened for signature May 5, 1949, Europ. T.S. No. 001, available at http://conventions.coe.int/Treaty/en/Treaties/Html/001.htm.
144. Convention for the Protection of Human Rights and Fundamental Freedoms, opened for signature Apr. 11, 1950, Europ. T.S. No. 005, available at http://conventions.coe.int/Treaty/en/Treaties/Html/005.htm.
145. Until 1998 there was a two-stage process, with cases first being examined by the European Commission on Human Rights and, only if a breach was revealed and no settlement could be reached between the applicant and the state, by the court.
146. COUNCIL OF EUROPE, Committee of Ministers, Supervision of Judgments of the European Court of Human Rights, http://www.coe.int/t/cm/humanRights_en.asp.
147. Tyrer v. United Kingdom, 26 Eur. Ct. H.R. (ser. A) (1978).
148. See, e.g., Campbell and Cosans v. United Kingdom, 48 Eur. Ct. H.R. (ser. A) (1982) (the first of the school-related cases).
149. Notably in A. v. United Kingdom, No. 35373/97, 27 Eur. H.R. Rep. 611 (1998).
150. Protocol to the Convention for the Protection of Human Rights and Fundamental Freedoms art. 2, opened for signature Mar. 31, 1952, Europ. T.S. No. 009, available at http://conventions.coe.int/Treaty/en/Treaties/Html/0009.htm.
151. World Corporal Punishment Research, The Archive, http://www.corpun.com/uksc8202.htm (last visited Apr. 3, 2010).
152. (Example of settlement). See Education (No. 2) Act, 1986, c. 61, § 47 (Eng., Wales) (abolishing corporal punishment in publicly supported schools).
153. See School Standards and Framework Act, 1998, c. 31, § 131 (Eng., Wales) (abolishing corporal punishment in all schools).
154. See Standards in Scotland's Schools Act, 2000, (A.S.P. 6) § 16, available at http://www.hmso.gov.uk/legislation/scotland/acts2000/20000006.htm.
155. See Education and Libraries (Northern Ireland) Order, 2003, SI 2003/424 (N. Ir. 12), ¶ 36 (abolishing corporal punishment in all schools).
156. The defense is usually assumed to derive from Chief Justice Cockburn's judgment in R v. Hopley, (1860) 175 Eng. Rep. 1024 (Q.B.).
157. Council of Europe, Committee of Ministers Publishes Decisions on the Execution of Judgments of the European Court of Human Rights, https://wcd.coe.int/ViewDoc.jsp?id=1455657&Site=DC (last visited Apr. 3, 2010).
158. The Service is in charge of criminal prosecutions.
159. THE CROWN PROSECUTION SERVICE, REASONABLE CHASTISEMENT REPORT (2007), available at http://www.cps.gov.uk/publications/research/chastisement.html#_01.
160. Children Act, 2004, c. 31, § 58 (Eng., Wales).
161. See Anne McGillivray & Joan Durrant, Child Corporal Punishment: Violence, Rights and Law, in CRUEL BUT NOT UNUSUAL: VIOLENCE IN CANADIAN FAMILIES 177, 194 (Ramona Alaggia & Cathy Vine eds., 2006) (summarizing law in Canada and recommending reforms).
162. See MICHAEL FREEMAN, UNDERSTANDING FAMILY LAW 197-98 (2007).
163. CHILDREN ARE UNBEATABLE! ALLIANCE, BRIEFING (2009) 1, available at http://www.rcpch.ac.uk/doc.aspx?id_Resource=4296.
164. ROB POPE, THIRD REVIEW OF POLICE ACTIVITY FOLLOWING THE ENACTMENT OF THE CRIMES (SUBSTITUTED SECTION 59) AMENDMENT ACT 2007 at 1 (2008), http://www.police.govt.nz/resources/2008/section-59-activity-review/section59_crime_ammendment_act_2007.pdf.
165. A portion of the New Zealand population demanded the change be reversed, and a referendum was held on the subject (in 2009).
166. See 3 News, Anti-Smacking Debate Goes to Referendum (June 15, 2009), http://www.3news.co.nz/Anti-smacking-debate-goes-to-referendum/tabid/423/articleID/108706/Default.aspx.
167. Seven Individuals v. Sweden, Application No. 8811/79 (1982), available by searching at http://cmiskp.echr.coe.int/tkp197/search.asp?skin=hudoc-en.
168. R v. Sec'y of State for Educ. and Employment ex parte Williamson, [2005] 2 A.C. 246 (H.L.) ¶ 8 (appeal taken from Eng.).
169. European Social Charter art. 17, opened for signature Oct. 16, 1961, Europ. T.S. 035, available at http://conventions.coe.int/Treaty/en/Treaties/Html/035.htm.
170. European Social Charter (revised), art. 17, opened for signature May 3, 1996, Europ. T.S. 163, available at http://conventions.coe.int/Treaty/en/Treaties/Html/163.htm.
171. European Comm. of Soc. Rights, European Social Charter (revised): Conclusions 2007 Volume I, 226-27 (Dec. 2007), available at http://www.coe.int/t/dghl/monitoring/socialcharter/Conclusions/Year/2007Vol1_en.pdf.
172. European Comm. of Soc. Rights, European Social Charter: Conclusions XVII-2 Volume I, 149 (Sept. 2005), available at http://www.coe/int/t/dghl/monitoring/socialcharter/Conclusions/Year/XVII2Vol1_en.pdf.
173. European Comm. of Soc. Rights, European Social Charter (revised): Conclusions 2005 Volume I, 193 (Sept. 2005), available at http://www.coe.int/t/dghl/monitoring/socialcharter/Conclusions/Year/2005Vol1_en.pdf.
174. European Comm. of Soc. Rights, Decision on the Merits; Collective Complaint No. 18/2003 from the World Organisation Against Torture (OMCT) Against Ireland, ¶¶ 65-66 (2004).
175. European Comm. of Soc. Rights, European Social Charter: Conclusions XVII-2 Volume II, 568-69 (Sept. 2005), available at http://www.coe/int/t/dghl/monitoring/socialcharter/Conclusions/Year/XVII2Vol2_en.pdf.
176. European Comm. of Soc. Rights, European Social Charter (revised); Conclusions 2005 Volume 2, 474 (Sept. 2005), available at http://www.coe/int/t/dghl/monitoring/socialcharter/Conclusions/Year/2005Vol2_en.pdf.
177. European Comm. of Soc. Rights, European Social Charter: Conclusions XVI-2 Volume 2, 805 (2003), available at http://www.coe.int/t/dghl/monitoring/socialcharter/Conclusions/Year/XVI2Vol2_en.pdf.
178. Council of Europe, Commissioner for Human Rights, Children and Corporal Punishment: "The Right Not to Be Hit, Also a Children's Right" (Jan. 2008) available at https://wcd.coe.int/ViewDoc.jsp?id=1237635&Site=CommDH&BackColorInternet=FEC65B&BackCo lorIntranet=FEC65B&BackColorLogged=FFC679#P136_10286.
179. See Council of Europe, Building a Europe for and with Children (Aug. 2006), available at http://www.coe.int/t/transversalprojects/children/pdf/booklet_en.pdf.
180. See Council of Europe, List of Complaints and State of Procedure, available at http://www.coe.int/t/dghl/monitoring/socialcharter/Complaints/Complaints_en.asp (list of complaints with information about subsequent activity in each case).
181. European Comm. of Soc. Rights, Decision on the Merits; Collective Complaint No. 17/2003 from the World Organisation Against Torture (OMCT) Against Greece, ¶¶ 34-46 (2004).
182. See Greece Outlaws Corporal Punishment in the Home, http://www.endcorporalpunishment.org/pages/news/greece-2006.html (describing Greek statute 3500/2006 passed on October 19, 2006) (last visited Apr. 3, 2010).
183. European Comm. of Soc. Rights, Decision on the Merits; Collective Complaint No. 21/2003 from the World Organisation Against Torture (OMCT) Against Belgium, ¶¶ 37-41 (2004).
184. European Comm. of Soc. Rights, Decision on the Merits; Collective Complaint No. 18/2003 from the World Organisation Against Torture (OMCT) Against Ireland, ¶¶ 58-66 (2004).
185. European Comm. of Soc. Rights, Decision on the Merits; Collective Complaint No. 19/2003 from the World Organisation Against Torture (OMCT) Against Italy, ¶¶ 40-52 (2004).
186. European Comm. of Soc. Rights, Decision on the Merits; Collective Complaint No. 20/2003 from the World Organisation Against Torture (OMCT) Against Portugal, ¶¶ 33-43 (2004).
187. (Discussing the Italian Supreme Court's decision in Cambria).
188. PETER NEWELL, BRIEFING FROM GLOBAL INITIATIVE TO END ALL CORPORAL PUNISHMENT OF CHILDREN 2 (2007), available at http://www.endcorporalpunishment.org/pages/pdfs/briefings/CAT%20briefing%20Apr-May%202007.pdf.
189. European Comm. of Soc. Rights, Decision on the Merits; Collective Complaint No. 34/2006 from the World Organisation Against Torture (OMCT) Against Portugal, ¶¶ 17-22 (2006).
190. It outlawed corporal punishment by parents in 2007 in an amendment to the Penal Code, in Article 152 of law 59/2007.
191. See Global Initiative to End All Corporal Punishment of Children, State Reports: Portugal, http://www.endcorporalpunishment.org/pages/progress/reports/portugal.html (last visited May 26, 2010).
192. Council of Europe Comm. of Ministers, Recommendation No. R (85) 4 of the Committee of Ministers to Member States on Violence in the Family, ¶ 12 (Mar. 26, 1985).
193. Council of Europe Parliamentary Assembly, Report: Europe-wide Ban on Corporal Punishment of Children, ¶ 22 (June 4, 2004), available at http://assembly.coe.int/documents/WorkingDocs/doc04/EDOC10199.htm.
194. Council of Europe Comm. of Ministers, Recommendation No. R (90) 2 of the Committee of Ministers to Member States on Social Measures Concerning Violence Within the Family, ¶ 18 (Jan. 15, 1990).
195. Council of Europe Comm. of Ministers, Recommendation No. R (93) 2 of the Committee of Ministers to Member States on the Medico-Social Aspects of Child Abuse, app., ¶ 1.2 (Mar. 22, 1993).
196. Council of Europe Comm. of Ministers, Recommendation (2006) 19 of the Committee of Ministers to Member States on Policy to Support Positive Parenting, ¶ 2 (Dec. 13, 2006).
197. Council of Europe, Building a Europe for and with Children (Aug. 2006), available at http://www.coe.int/t/transversalprojects/children/pdf/Booklet_en.pdf.
198. Council of Europe, Highlights - Building a Europe for and with Children 18 (Apr. 2006), available at http://www.coe.int/t/transversalprojects/children/pdf/Highlights_GB.pdf.
199. Council of Europe Comm. of Ministers, Written Question No. 492 to the Committee of Ministers by Mrs Bargholtz: "Collective complaint 18/2003 under the Revised Social Charter against Ireland" - Reply of the Committee of Ministers, CM/AS(2006)Quest492 (Sept. 29, 2006), available at http://wcd.coe.int/ViewDoc.jsp?Ref=CM/AS(2006)Quest492&Language=lanEnglish&Ver=final.
200. BUILDING A EUROPE FOR AND WITH CHILDREN PROGRAMME, COUNCIL OF EUROPE, ELIMINATING CORPORAL PUNISHMENT: A HUMAN RIGHTS IMPERATIVE FOR EUROPE'S CHILDREN 67 (2d ed. 2007).
201. In the ten years since this statement there has of course been a lot of progress, with at least twelve European countries banning corporal punishment by parents.
202. This is an independent advocacy organization working for the realization of children's rights. It was founded in 2003, with headquarters in Addis Ababa, Ethiopia. Among the reports it has published that may be singled out are VIOLENCE AGAINST GIRLS WITHIN THE HOME IN AFRICA (2006) and BORN TO HIGH RISK: VIOLENCE AGAINST GIRLS IN AFRICA (2006).
203. African Charter on the Rights and Welfare of the Child art. 16, entered into force Nov. 29, 1999, OAU Doc. CAB/LEG/24.9/49 (1990).
204. (A child subjected to discipline "shall be treated with humanity and with respect for the inherent dignity of the child...").
205. (Discussing protection of children against torture and inhuman or degrading treatment or punishment in the context of juvenile justice).
206. (Titled "Protection against Harmful Social and Cultural Practices").
207. (States Parties shall "protect the child from all forms of sexual exploitation and sexual abuse.").
208. Kathy Vandergrift, Challenges in Implementing and Enforcing Children's Rights, 37 CORNELL INT'L L.J. 547, 550 (2004).
209. Chuma Himonga, Implementing the Rights of the Child in African Legal Systems: the Mthembu Journey in Search of Justice, 9 INT'L J. CHILD. RTS. 89, 90 (2001).
210. See generally N. Barney Pityana, The Challenge of Culture for Human Rights in Africa, in THE AFRICAN CHARTER ON HUMAN AND PEOPLES' RIGHTS 219 (Malcolm Evans & Rachel Murray eds., 2002).
211. S. AFR. CONST. 1996, § 28(1) (South Africa).
212. See Julia Sloth-Nielsen & Benyam D. Mezmur, 2+2=5? Exploring the Domestication of the CRC in South African Jurisprudence (2002-2006), 16 INT'L J. CHILD. RTS. 1, 1-28 (2008) (South Africa).
213. Julia Sloth-Nielsen, Domestication of Children's Rights in National Legal Systems in African Context: Progress and Prospects, in CHILDREN'S RIGHTS IN AFRICA-A LEGAL PERSPECTIVE 53, 62 (Julia Sloth-Nielsen ed., 2008) (Uganda).
214. Nicole O'Neal, Corporal Punishment in Public Schools: A Call for Legal Reform, 8 AFR. HUM. RTS. L.J. 60, 61 (2008).
215. FARHANA ZUBERI, ASSESSMENT OF VIOLENCE AGAINST CHILDREN IN THE EASTERN AND SOUTHERN AFRICAN REGION: RESULTS OF AN INITIAL DESK REVIEW FOR THE UN SECRETARY GENERAL'S STUDY ON VIOLENCE AGAINST CHILDREN 19 (2005), available at www.crin.org/docs/ESA_Regional_Assessment_Final.doc.
216. U.N. Study on Violence Against Children, Middle East and North Africa Region.
217. Curtis Francis Doebbler v. Sudan, Comm. No. 236/2000, African Comm'n on Human and Peoples' Rights (2003), available at http://www1.umn.edu/humanrts/africa/comcases/236-2000.html.
218. See Frans Viljoen & Linette Louw, State Compliance with the Recommendations of the African Commission on Human and Peoples' Rights, 1994-2004, 101 AM. J. INT'L L. 1, 5 (2007).
219. INTERIM CONST. OF S. SUDAN, 2005 § 21(f).
220. (Describing the development of the Interim Constitution).
221. The case (Application 185 of 2004) is unreported.
222. See also Godfrey Odongo, Kenyan Law on Corporal Punishment in the Home, 1 ARTICLE 19, 6, at 7 (2005).
223. Declaration of the Rights and Duties of Man, adopted by the Ninth International Conference of American States (1948), reprinted in Organization of American States, Inter-American Commission on Human Rights, Basic Documents Pertaining to Human Rights in the Inter-American System, OAS/Ser.L/V/I.4 rev.12 (Jan. 31, 2007).
224. American Convention on Human Rights, entered into force July 18, 1978, O.A.S.T.S. No. 36.
225. 2005 Inter-Am. Ct. H.R. (ser. C) No. 123 (Mar. 11, 2005).
226. Case 12.513, Inter-Am. C.H.R., Report No. 79/07, OEA/Ser.L./V/II.130, doc. 22, rev. 1 (2007).
227. The group includes China, Japan, Philippines, and Thailand. See Global Initiative to End All Corporal Punishment of Children, Global Progress Towards Prohibiting All Corporal Punishment, http://www.endcorporalpunishment.org/pages/pdfs/charts/Chart-Global.pdf (last visited May 26, 2010).
228. Abolition is under discussion in several countries: for example, Bangladesh, Sri Lanka, and Pakistan (these countries made a commitment to abolition at the July 2006 meeting of the South Asia Forum). Taiwan stated its commitment to prohibition in August 2005. In the Philippines various bills have been filed but not heard. There is draft legislation in Mongolia also (this was due for consideration in 2008).
229. See links to tables with individual states' progress reports available at http://www.endcorporalpunishment.org/pages/progress/global.htm.
230. South Asian Association for Regional Cooperation Social Charter, available at http://www.saarc-sec.org/SAARC-Charter/5/.
231. U.K. DEP'T OF HEALTH, PROTECTING CHILDREN, SUPPORTING PARENTS: A CONSULTATION DOCUMENT ON THE PHYSICAL PUNISHMENT OF CHILDREN (2000), available at http://www.dh.gov.uk/en/Consultations/Closedconsultations/DH_4083513.
232. Tony Blair, the former Prime Minister, referred to "loving smacks.".
233. See, e.g., Children in Anti-Smacking Protest, BBC NEWS, Apr. 15, 2000, http://news.bbc.co.uk/1/hi/uk/713992.stm.