Consultation Response: Legislative Proposal to Remove the Defence of Reasonable Punishment
About the Wales UNCRC Monitoring Group
The Wales UNCRC Monitoring Group is a national alliance of non-governmental and academic agencies, tasked with monitoring and promoting the United Nations Convention on the Rights of the Child in Wales. The UNCRC Monitoring Group was established in 2002 and is presently facilitated by Children in Wales, the national umbrella organisation. Since 2002, the Group has worked with the UN Committee on the Rights of the Child and submitted civil society reports to inform successive UK State Party Examinations.
Members of the Monitoring Group are representatives of, and nominated by, non-governmental organisations and academics which are as follows - Barnardo’s Cymru, Centre for Welsh Legal Affairs- Aberystwyth University, Children in Wales, Children's Commissioner for Wales (observers), Equality and Human Rights Commission Wales (observers), NSPCC Wales/Cymru, Play Wales, Save the Children Wales, UNICEF (observers), Wales Observatory on Human Rights of Children and Young People and the Welsh Local Government Association (observers)
Context
The Wales UNCRC Monitoring Group are fully supportive of the Welsh Governments intention to legislate to remove the defence of reasonable punishment. The law is outdated, attitudes have changed and we now have an opportunity to send a clear message that physical punishment of children in no longer acceptable under Welsh law.
Children’s human rights should be the driving principle which underpins and informs all Welsh Government policy and legislation.
In March 2011 the Rights of Children and Young Persons (Wales) Measure received Royal Approval. The Measure places a clear duty on all Welsh Ministers, in exercising their functions, to have ‘due regard’ to the UNCRC. Similar duties on persons exercising functions in relation to children under the Social Services and Well-being (Wales) Act 2014 have also been put in place. While these legislative measures do not create legal remedies for individual rights violations, they are significant advances towards incorporation of the UNCRC in Wales and the promotion and protection of children’s human rights in legislation, policy development, practice and culture.
The Convention on the Rights of the Child (UNCRC) is clear in that rights apply to every child without discrimination, whatever their ethnicity, gender, religion, language, abilities or family background (Article 2). Articles 3 and 4 state that the best interests of the child must be the priority for governments and that they must do all they can to ensure that every child’s right is respected, by passing laws to promote and protect those rights.
The UNCRC and other international human rights instruments recognise the rights of the child to respect for the child’s human dignity and physical integrity and equal protection under the law
Q1. Do you think our legislative proposal to remove the defence of reasonable punishment and prevent the use of corporal punishment will help achieve our stated aim of protecting children’s rights?
YES
The aims of this consultation are compliant with, and will support the due regard obligation placed upon the Welsh Government through the Measure. We welcome the Child Rights Impact Assessment being issued alongside the consultation document which reinforces the importance of this proposal in strengthening compliance with existing Welsh legislation.
Article 19 of the UNCRC is clear in that Governments should ensure that children are properly cared for, and protected from violence, abuse and neglect by their parents or anyone else who looks after them. Article 37 of the UNCRC calls on Governments to prohibit cruel treatment and punishment.
Corporal punishment and other cruel or degrading forms of punishment are forms of violence and states must take all appropriate legislative, administrative, social and educational measures to eliminate them. The preamble to the UNCRC also recalls that, in the Universal Declaration, the UN “has proclaimed that childhood is entitled to special care and assistance”.
General Comment No 8 (2006) provides additional, and more detailed commentary on corporal punishment and other forms of punishment with the intention of supporting Governments to progress their obligations to the UNCRC.
Since it began examining States parties’ reports, the UN Committee has recommended prohibition of all forms of corporal punishment, in the family and other settings. The UN Committee, in their 2016 state party examination of the progress the UK (including Wales) have made in implementing the UNCRC, were critical of the failure to implement previous recommendations to repeal existing legislation, with the most recent Concluding Observations calling on Governments to
“Prohibit as a matter of priority all corporal punishment in the family, including the repeal of all legal defences, such as ‘reasonable chastisement’”.
This followed the Wales UNCRC Monitoring Group Recommendation in the NGO Civil Society report to the UN Committee that the Welsh Government should
“Embrace its stated commitment to children’s rights and demonstrate leadership on this issue as a matter of urgency by promoting legislation to abolish the defence of reasonable chastisement in proceedings for assault on the child in Wales”
The Human Rights Council Working Group on the Universal Periodic Review in 2017 issued 7 Recommendations on prohibiting corporal punishment in all settings to the UK and devolved nations. These reinforced the recommendation by Wales UNCRC Monitoring Group submitted in partnership with UK child rights alliances that
“UK and devolved administrations should urgently bring forward legislation to prohibit all forms of violence and corporal punishment of children, and repeal all legal defences as a matter of priority.”
The Wales UNCRC Monitoring Group therefore supports the legislative proposal to remove the defence of reasonable punishment and prevent the use of corporal punishment, and believes this will help achieve the Welsh Governments stated aim of protecting children’s rights. It will also align Wales with 53 states who have prohibited physical punishment, including the overwhelming majority of EU member states who have prohibited (including Ireland) or progressing towards prohibition (including Scotland). It will also help ensure that Welsh legislation is further aligned to Article 3 of The European Convention on Human Rights.
Q2. In addition to our existing parenting support and information campaign are there any other support mechanisms you think we should put in place to support parents, carers and guardians?
The promotion of positive parenting to support parents, guardians and carers is a key part of a holistic drive to prevent violence against children and to help strengthen their developmental wellbeing outcomes.
The UN Committee’s Concluding Observations called on governments to
‘Strengthen their efforts to promote positive and non-violent forms of discipline and respect for children’s equal right to human dignity, with a view to eliminating the general acceptance of the use of corporal punishment in child-rearing’
As recommended in the Wales UNCRC Monitoring Group NGO civil society report, the Welsh Government should continue to ‘invest in resources to actively promote positive non-violent discipline of children’.
We acknowledge and support the investment made to date by the Welsh Government in a range of practical resources and information, with an emphasis on prevention and would wish to see this continue, supported by a robust monitoring and evaluation framework.
Engagement with parents, including young parents and parents from pre-identified marginalised groups, should form part of this programme of work. A one-size fits all approach will have limited impact in terms of delivering sustainable positive change and equipping all parents with positive form of behaviour management techniques. Adopting universal and targeted intervention will be required
The views of children and young people should also be routinely sought, in line Article 12 of the UNCRC and the UN Committee Recommendation that Government should ‘give due weight to the views of children concerned in the response to violence’
The prevention of child violence by improving parenting throughout the community, should remain the overarching goal.
Q3. What types of actions/behaviours would you consider to be “corporal punishment”?
The UN Committee through General Comment 8 defines corporal punishment as ‘any punishment in which physical force is used and intended to cause some degree of pain or discomfort, however light’. This would incorporate hitting children, with the hand or with an implement, and other forms of violence such as ‘kicking, shaking, throwing, scratching, pinching, biting, pulling hair or boxing ears, forcing children to stay in uncomfortable positions, burning, scalding or forced ingestion’.
However, we do not believe that drawing up a list of actions or behaviours which constitute corporal punishment would prove helpful, and call upon the Welsh Government to refrain from doing so.
Intent is clearly a factor as much as the action or behaviour.
Q4. Do you agree with our understanding of potential impacts on public bodies in Wales arising from the legislative proposal?
Yes. Removing the defence of reasonable punishment and providing clarity of message, will provide support for, and allow for better consistency of response across public bodies. Social Services and the Police already receive and investigate reports of children being physically punished and they aim to support parents and children without resorting to forceful interventions. The proposal does not create any new offences and is therefore unlikely to have a significant impact on the Courts in Wales.
Where there are concerns that a child is being abused it will be easier to intervene early and prevent more serious consequences.
Q5. Is there additional guidance or training required to support frontline professionals?
Information regarding the legislation to remove the defence of reasonable punishment defence should be made readily available for all frontline professionals. Whilst existing guidance and training will need to be adjusted to incorporate legal developments in Wales, it should be noted that many frontline professionals are already under a duty through the Social Services and Well-being (Wales) Act 2014 to report any concerns around violence to children to local authorities or the police, with supplementary Codes of Practice in place to support them in discharging this duty. The Act also places a due regard duty to the UNCRC on persons exercising functions in relation to children and young people.
The Welsh Government should however continue to consult directly with the frontline professions to ascertain whether there are any issues which could be addressed through additional guidance or training.
A robust strategy for implementation of positive parenting support, both universal and targeted, will be required to realise the positive change envisaged when removing the defence of reasonable punishment.
Q6. Please explain how you believe the proposed policy could be formulated or changed so as to have:
- Positive effects or increased positive effects on opportunities for people to use the Welsh language and on treating the Welsh language no less favourably than the English language; and
- No adverse effects on opportunities for people to use the Welsh language and on treating the Welsh language no less favourably than the English language.
We are content with the Welsh Language Assessment for this proposal and agree with its contents.
Language is central to culture, identity and heritage. The right to use your own language is an internationally recognised human right, first included as an international human right in the Universal Declaration of Human Rights in 1948 (Article 2) and more recently through the European Convention on Human Rights (Article 14).
The UNCRC is clear in that Governments must ensure that children have the right to learn about and practice their own language (Article 30) and that there should be no discrimination on the grounds of the language that they speak (Article 2).
In line with international standards and existing duties placed upon the Welsh Government, access to information, training and support relevant to the changes should always be available in the Welsh language.
Q7. We have asked a number of specific questions. If you have any issues related to this consultation which we have not specifically addressed, please use this space to report them.
We believe that in order to be effective, the legislation to remove the ‘reasonable punishment’ defence should be clear and unambiguous, and provide the necessary protection for all children and young people in Wales. The legislation should be fully compliant with existing duties placed on Welsh Ministers through the Rights of Children and Young Persons (Wales) Measure.
All children in Wales must be afforded the same level of legal protection as adults.
March 2018
Sean O’Neill
Policy Director
Children in Wales
The Wales UNCRC Monitoring Group is coordinated by
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