BILL S-207 and the UN Secretary-General’s Study on Violence Against Children:
Submission to Standing Senate Committee on Human Rights

Summary

The Canadian Coalition for the Rights of Children urges the honourable members of the Standing Senate Committee on Human Rights to ensure that Canada’s international and domestic human rights obligations are brought to bear in its review of Bill S-207. In particular, the Coalition draws attention to the findings of the recent UN Secretary-General’s Study on Violence Against Children, the Convention on the Rights of the Child (CRC), and the committee’s own review
of Canada’s obligations with regard to the rights of children. If these are taken into consideration, it would be difficult to find other than support for Bill S-207 and move forward to ensure that Canada’s Criminal Code protects all Canadian citizens – including its youngest, smallest and most vulnerable – from all forms of violence.

Violence in its myriad forms is universally condemned under international human rights law. But corporal punishment is a form of violence that persists in the everyday lives of children worldwide. In some States, it is a sanctioned practice by government agencies and bodies (e.g., in education, justice and child welfare systems). In others, it is permitted by legislation and persists in families.

The UN Secretary-General’s Study on Violence Against Children recognizes corporal punishment as a form of violence, and asserts that violence against children administered as “discipline” or “correction” must cease to be condoned, authorized or regulated in domestic law if States are to uphold their human rights obligations.

The key messages of the Study, which are reflected in the recommendations, are:
(a) No violence against children is justifiable. Children should never receive less protection than adults.
(b) All violence against children is preventable. States must build a protective legislative environment and invest in evidence-based policies and programs to address factors that give rise to violence against children.
(c) States have the 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.
(d) States have the obligation to ensure accountability in every case of violence.
(e) The vulnerability of children to violence is linked to their age and evolving capacity.
(f) Children have the right to express their views, and to have these views taken into account in the implementation of policies and programs.

“The Study should mark a turning point – an end to adult justification of violence against children, whether accepted as “tradition” or disguised as “discipline”.
Paulo Sergio Pinheiro, Independent Expert, UN Secretary General’s Study on Violence Against Children

The Responsibility of the State to Protect Children from All Violence

The UN Secretary General’s Study on Violence against Children is the product of a consultative process involving nine regional consultations (one hosted by the Government of Canada in 2005), responses to a government questionnaire submitted directly to the Independent Expert, public submissions, a series of 14 expert thematic meetings on various aspects of the issue, consultation with the Inter-agency Group on Violence against Children, consultation with children, and guidance from an editorial board. In Canada alone, close to 100 organizations representing multidisciplinary perspectives and more than 300 young people participated in the Study process. This formidable and broad process of consultation ensured that the recommendations of the Study are firmly anchored in the reality of children’s lives in every society, and in the current research.

The Study finds that some forms of violence, such as sexual exploitation and the impact of armed conflict on children, have provoked international condemnation and strong legislative and programmatic responses. However, some forms of violence in the home, schools, institutions and communities are largely ignored – or actually sanctioned – by governments.

The Study identifies corporal punishment as one of the most prevalent forms of violence faced by children in virtually every society ─ affluent and developing. It recognizes that family units are the best providers of physical and emotional care and protection for children. But governments have the responsibility to build a solid protective legal framework that respects the rights of children. Violence thrives in the absence of respect for human rights. Violence against children will persist where laws persist that confer on adults the right to use violence in the treatment of children. State responsibility to protect, respect and fulfil the rights of children extends beyond its direct activities and those of State agents; it requires the adoption of measures to ensure that parents, legal guardians and others do not violate children’s rights. States are obliged to put in place a framework of laws, policies and programmes to prevent violence.

The Study calls for the universal prohibition of all corporal punishment and other forms of cruel or degrading punishment in all settings, including schools and homes, setting a target date of 2009.

The findings of the global study were supported in the recent report of this committee, entitled Children: The Silenced Citizens: Effective Implementation of Canada’s International Obligations with Respect to the Rights of Children. It recognizes the gravity of the issue of violence against children in Canada and makes cogent recommendations to address it through legislative and educative means. Recommendation 2, among other things, calls for repeal of section 43 of the Criminal Code. Recommendation 5 calls on the federal government to respond to the UN Study on Violence Against Children and inform the international community, Parliament, and the Canadian public how it is responding to issues of violence against children and how it intends to improve upon policies to bring Canada into compliance with the Convention on the Rights of the Child. Recommendation 19 calls on the federal government to “immediately implement and comply with its obligations” under the CRC.

Support for Bill S-207 is consistent with both global and national findings on the role of governments in protecting children from all forms of violence. A Foundation in Children’s Human Rights The UN Study draws on international human rights frameworks to conclude that corporal punishment of children breaches their fundamental rights to respect for their human dignity and physical integrity. Legally permitted corporal punishment also abrogates their right to equal protection under the law. These rights are upheld for everyone – including children – in the UN Convention on the Rights of the Child, the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights, The Convention on the Rights of the Child, which forms a universal framework for addressing violence against children, requires states to protect children from “all forms of physical or mental violence” while in the care of parents or others (Article 19). It requires discipline in schools to “be administered in a manner consistent with the child’s human dignity” (Article 28). Children must never be subjected to “degrading treatment or punishment” (Article 37). The Convention on 3
the Rights of the Child (Article 3) requires that the child’s best interest be a primary consideration in all matters affecting the child. A vast body of research findings clearly establish that corporal punishment is never in the child’s best interest; rather it is a consistently identified risk factor for child abuse and for perpetuating violence.

The UN Committee on the Rights of the Child consistently interprets the Convention as requiring prohibition in law of all corporal punishment in the family, schools, all forms of alternative care and juvenile justice settings, together with awareness-raising and public education. The legislative prohibition of corporal punishment is recommended as an educative and deterrent means of reducing violence against children. In June 2006, the Committee adopted General Comment No. 8 on the rights of the child to protection from corporal punishment and other cruel or degrading forms of punishment. In it, the Committee underlines that “eliminating violent and humiliating punishment of children, through law reform and other necessary measures, is an immediate and unqualified obligation of States parties.”

Furthermore, the Outcome Document of the 2002 UN General Assembly Special Session on Children encouraged all States “to adopt and enforce laws, and improve the implementation of policies and programmes to protect children from all forms of violence, neglect, abuse and exploitation, whether at home, in school or other institutions, in the workplace, or in the community”. “How can we expect children to take human rights seriously and help build a culture of human rights while we
adults not only persist in slapping, spanking, smacking and beating them, but actually defend doing so as being ‘for their own good’? Smacking children is not just a lesson in bad behaviour, it is a potent demonstration of contempt for the human rights of smaller, weaker people.”

Thomas Hammarberg, Human Rights Commissioner, Council of Europe: Issue Paper 2006/01.

Implementation of the Study and its Recommendations “When parents do so much [physical violence], kids will end up being violent” Youth consulted for Seen, Heard & Believed: What Youth Say about Violence, 2006 (UNICEF Canada, Cape Breton University Centre for Children’s Rights, Canadian Council of Provincial Child and Youth Advocates, Save the Children Canada). Adoption of Bill S-207 is consistent with Canada’s support for the UN Study and plans for follow-up. The Study Report calls for implementation of 12 overarching recommendations (see Appendix), complemented by additional recommendations which are specific to each of the settings of home and family, educational settings, institutions for care or detention, the workplace and the community. (More information on these can be found in the full document available at www.violencestudy.org) In particular, the time frame refers to these being integrated into national planning processes by 2007. Prohibiting violence against children by law and initiating a process to develop reliable national data collection systems should be achieved by 2009. States should provide information on implementation of these recommendations in their reports to the Committee on the Rights of the Child. Canada’s next report is scheduled for
January 2009.

Following the presentation of the Secretary-General’s Study on Violence Against Children to the General Assembly in October 2006, the Resolution on the Rights of the Child adopted by the Third Committee of the Assembly (A/C.3/61/L.16) encourages Member States and requests United Nations entities, regional organisations and civil society, including non-governmental organisations, to widely disseminate and follow up on the Study. The resolution calls on relevant organisations of the United Nations system (19) “to explore ways and means, within their respective mandates, by which they can contribute more effectively to address the need to prevent and to respond to all forms of violence against children.” The resolution also requests the Independent Expert to promote the initial phase of follow-up. During 2007, the Independent Expert will call upon Governments, UN organisations, regional organisations, national institutions, civil society, and other partners to provide inputs to a progress report he will prepare for the 2007 General Assembly.
4
Canada adopted the Violence Study by resolution at the UN General Assembly in November 2006. In a letter to the Canadian Coalition for the Rights of Children, dated March 23, 2007, the Minister of Foreign Affairs, Peter MacKay, stated that “The Canadian government welcomes the recommendations contained in the Study…Violence against girls, boys, and adolescents contravenes their most basic human rights and the impact on their development is enormously detrimental.”

Canada has emphasized the importance it places on human rights standards, and pledged to uphold and promote them. But the persisting legality of corporal punishment of children by parents, through s. 43 of the Criminal Code, is inconsistent with the human rights standards Canada has accepted and ratified. It is no more possible to define some level of “reasonable” or “justifiable” violence against children than against adults. In previous centuries, many states’ laws permitted and thus condoned physical chastisement of wives, slaves, servants and apprentices, but societies have moved on to adopt clear international human rights standards. It is unthinkable that legislation on violence against women, or violence against older people, would exclude condemnation of the most common form of violence against them, within the family or elsewhere.

By prohibiting corporal punishment, states are prohibiting not just a particular category of violence, but the idea that some arbitrary degree of violence against children should, uniquely, be legal and socially approved. This is fundamental to asserting children’s status as individual people and rights-holders, just as challenging men’s violence against women in the home has been a vital part of the struggle for women’s rights.The pace of legal reform is rapidly gaining momentum. Since Sweden became the first state to explicitly prohibit all corporal punishment of children in all settings in 1979, 17 states have since enacted legal prohibition. Another 23 states
have legislation in preparation or have committed themselves to legal reform towards full prohibition, including in the home.

Corporal punishment is prohibited in all schools in 102 States; in penal systems (both as a sentence and as a disciplinary measure in institutions for juvenile detention) in 104 States; and in all alternative care settings in 28 States. But at least 92 States have yet to introduce legislation explicitly prohibiting corporal punishment in all schools; at least 80 have yet to prohibit it as a disciplinary measure in institutions for juvenile detention. And in at least 40 children can still be sentenced to whipping, caning or flogging as a sentence for crime. “Many citizens and politicians express deep concern about increasing violence in their societies. The credibility of this concern is questionable as long as they are not willing to seriously and systematically address the use of violence against children. And nobody should suggest that a little bit of violence is acceptable. That applies equally for adults and children.” Jaap E. Doek, Chairperson, United Nations Committee on the Rights of the Child, 2001-2007

“Adults need to set a better example for kids” Youth consulted for Seen, Heard & Believed: What Youth Say about Violence, 2006 (UNICEF Canada, Cape Breton University Centre for Children’s Rights, Canadian Council of Provincial Child and Youth Advocates, Save the Children Canada For Further Information, Contact: Kathy Vandergrift, Chair Canadian Coalition for the Rights of Children 613-820-0272 kathyvandergrift@rogers.com