Saturday, February 24, 2018

Corporal punishment and children

Dana Seetahal logo48

Mark Fraser

The video of a mother beating her 12-year-old daughter featured on Facebook has raised the spectre once again of the unresolved issue of the use of corporal punishment to discipline children who misbehave. Many persons have weighed in on the issue including the Prime Minister who has reportedly said she will examine the possibility of banning corporal punishment in the home in the same way it is now prohibited in schools. The question that naturally arises is whether this is in fact desirable and how far can and should such a prohibition, if put in place, go.

The current statutory law on beating children is contained in the Children Act. Section 3 specifies that where any person over the age 16 who has the custody or care of any child or young person, wilfully assaults or ill-treats the child or young person, “in a manner likely to cause the child or young person unnecessary suffering or injury to his health” that person  commits an offence. It is clear that the Act contemplates that a person such as a parent may beat a child but not in such a manner that may cause unnecessary suffering or injury to his health. So the Children Act, even where it purports to prevent cruelty to children, admits to permissible corporal punishment.

Other than the Children Act, however, there are other laws which prohibit assault or assault occasioning actual bodily harm, making them criminal offences.   

Nonetheless there has always existed in common law a defence of lawful correction (or reasonable chastisement) available to a parent or guardian accused of assault and/or battery of a child. This defence still exists in Trinidad and Tobago and most common law jurisdictions (that adopted the English legal system). A parent may inflict moderate and reasonable physical chastisement on her child. One must factor in the nature, context and duration of the parent’s behaviour as well as the physical and mental effect on the child. Thus punishment should:

• Not be administered for the gratification of passion or rage.

• Not be immoderate or excessive beyond the child’s endurance.

• Not be administered with an instrument not fit for the purpose, calculated to produce danger to life or limb.

Under the common law one must also factor in whether a child who is being so punished can appreciate the correction. Thus a beating of a two-year-old may not lawfully amount to correction since such a child may not appreciate the correction by physical force. It has been held that although a slight slap might be given to an infant by its mother, more violent treatment of the infant would not be justifiable.

Some countries have, by passing legislation, sought to clarify or limit the common law defence. Thus the New South Wales Crimes Act, while it has enshrined the defence of lawful correction in its statute laws in more or less the same terms as above, now also provides that: 

“The application of physical force, unless that force could reasonably be considered trivial or negligible in all the circumstances, is not reasonable if the force is applied:

(a) to any part of the head or neck of the child, or

(b) to any other part of the body of the child in such a way as to be likely to cause harm to the child that lasts for more than a short period.”

In the UK the Children Act 2004 specifies that the defence is only available for minor assaults and is not available for more serious injuries e.g. where the punishment causes grazes, scratches, abrasions, minor  bruising, swelling, superficial cuts or a black eye.

Given all of the above what is the impact of the law in a situation where a parent uses a belt to beat a child who has posted photos of herself wearing only underwear on Facebook. The first question is whether the force used was used for the gratification of passion or rage. According to the mother it was meant to correct the child and this is apparently borne out by the elder sister of the child and by all accounts the child herself, judging by her subsequent statements: she is a good parent who loves her dearly etc.

On the next question—was the beating immoderate or excessive beyond the child’s endurance? It seems not, again from the child’s and mother’s perspectives. Other persons may have and seemingly do have a different opinion on whether it was moderate. Some feel, if one is to judge from comments made by stakeholders in the field of child abuse, that it was.

Was the beating administered with an instrument not fit for the purpose and calculated to produce danger to life or limb? Reading this in a Trinidad and Tobago context, is a belt not fit for the purpose of administering physical punishment? Even if it may be thought unsuitable—was it used in a manner to produce danger to life or limb?

These are the questions we must ask ourselves in a dispassionate assessment of whether the mother of the 12-year-old was engaging in lawful correction. It is instructive to note that in an unscientific survey by one media house over 70 per cent of the respondents believed the mother’s actions were justified in the circumstances. Ironically enough in a study done in New South Wales in 2011 a majority of respondents (72 per cent) thought that lawful correction was a reasonable defence for a parent charged with assault of a child.

In the final analysis, therefore, before we rush off to pass laws to ban corporal punishment in the home—consider what other measures of discipline are there that would be effective or appropriate to discipline a particularly difficult child. Should reasonable chastisement be condemned out of hand?

• Dana S Seetahal is a former independent senator