Prohibiting all Corporal Punishment of Children: Learning from States which have Achieved Law Reform

2014 ◽  
Author(s):  
Author(s):  
Laetitia-Ann Greeff

This article compares the law reform methods employed by South Africa and New Zealand to eliminate the defence of ‘moderate and reasonable chastisement’ to a charge of common assault, to determine the best possible law reform strategy for Australian jurisdictions, within the context of its federal system of governance. South Africa and New Zealand banned corporal punishment on a national level, with South Africa prohibiting the use of corporal punishment by way of the judicial condemnation of the Constitutional Court in 2019, and New Zealand’s legislation to ban corporal punishment through Parliamentary processes in 2007. Corporal punishment in the home is still legal in Australia if administered by parents or those in loco parentis. This article focuses on the three Australian States that have enacted human rights legislation—Victoria, the Australian Capital Territory (ACT) and Queensland—and the impact of this legislation on judicial law reform. In this regard, the doctrine of parliamentary sovereignty is discussed in terms of its ability to limit public interest litigation’s viability to strike down inconsistent legislation. The article suggests that all three countries can learn from one another concerning the successes and/or failures of law reform. Furthermore, the article concludes by acknowledging that even though formal abolition is the norm in South Africa and New Zealand, corporal punishment remains widespread. Parents and those in loco parentis must be supported by continual education initiatives to bring about requisite social and cultural change.


2005 ◽  
Vol 12 (2) ◽  
pp. 139-158 ◽  
Author(s):  
Joan E. Durrant ◽  
Staffan Janson

Over the past 70 years, Sweden has implemented a series of proactive legal reforms aimed at eliminating the corporal punishment of children in homes, schools and institutions. The most recent of these reforms took place in 1979 when Sweden became the first nation to explicitly abolish corporal punishment. The primary purposes of the ban were to recognize and affirm children's rights to security of the person and to inform the public and professionals that corporal punishment is neither socially acceptable nor legally defensible. It was expected that, over time, parents would demonstrate decreasing support for this practice and decreasing use of it. Ultimately, it was expected that the ban, and the legal reforms that led up to it, would contribute to lower levels of parental violence toward children. In the present article, evidence from a variety of sources is examined to assess trends in child physical abuse in Sweden over time. It is concluded that acts of violence against children have declined dramatically in Sweden over recent decades corporal punishment is infrequent, serious assaults are uncommon, and child abuse fatalities are extremely rare. Implications of legal reform for the well-being of children are discussed.


2005 ◽  
Vol 12 (2) ◽  
pp. 189-211 ◽  
Author(s):  
Mark Carter

In Canadian Foundation for Children, Youth and the Law Versus Canada the Supreme Court rejected the Foundation's arguments that the corporal punishment defence denies children rights that are guaranteed to them under the Canadian Charter of Rights and Freedoms. The author argues that among the unfortunate aspects of the Court's decision is the extent to which it identifies the perpetrators of violence against children, rather than the children themselves, as the most deserving recipients of concern about victimization in the debate over the retention of the corporal punishment defence. By failing to extend basic human rights protections to our most vulnerable citizens, the Foundation decision raises troubling questions about the effectiveness of the Charter and the relationship of Charter litigation to other law reform strategies.


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