Jillian van Turnhout (Independent) | Oireachtas source

I move amendment No. 6:

In page 20, after line 21, to insert the following:“28. The Non-Fatal Offences Against the Person Act 1997 is amended by the substitution for section 24 of the following—

“Abolition of common law rules in respect of immunity from criminal liability for punishing a child

24. Any rule of law under which any person is immune from criminal liability in respect of physical chastisement of a child, whether the person is a parent or guardian of the child, a person with custody of the child either temporarily or indefinitely, a teacher, or a person in loco parentis in respect of the child either temporarily or indefinitely, is hereby abolished.”.”.

I would like to begin by acknowledging and thanking Peter Newell of the Global Initiative to End All Corporal Punishment of Children, which promotes the universal prohibition and elimination of corporal punishment. I have worked with Peter for many years on this issue, including when I was the chief executive of the Children's Rights Alliance.

In November 2012, the people of Ireland voted to enshrine children’s rights into the Irish Constitution and while the result was appealed, the decision was signed into law on 28 April 2015. I am delighted to have an updated copy of the Constitution, which firmly places children's rights at its heart. Article 42A.1 states clearly: "The State recognises and affirms the natural and imprescriptible rights of all children and shall, as far as practicable, by its laws protect and vindicate those rights."

What I am proposing in this amendment is to ensure that all citizens are equal in the eyes of the law. Why do we still believe it is acceptable for corporal punishment to be in our laws? The Committee on the Rights of the Child defines “corporal” or “physical” punishment as any punishment in which physical force is used and intended to cause some degree of pain or discomfort, however light. Most such punishment involves hitting, smacking, slapping or spanking children, with the hand or with an implement such as a whip, stick, belt, shoe or wooden spoon, etc. However, it can also involve, for example, kicking, shaking or throwing children, scratching, pinching, biting, pulling hair or boxing ears, forcing children to stay in uncomfortable positions, burning, scalding or forced ingestion. In the view of the committee, corporal punishment is invariably degrading.

Adults have a talent for inventing euphemisms to make them feel more comfortable while they inflict pain and humiliation such as spanking or smacking. The truth is that, for a child, all of this is violence and if it was directed at an adult it would constitute criminal assault. I am very conscious that when I raise this issue, people often believe it is a judgment on how they were raised. I take this opportunity to welcome my mother, Jenny, to the Visitors Gallery and she will concur that I was raised with the phrase “you’re not too old for the wooden spoon” ringing in my ears. Thankfully, she never had to use the spoon. I wonder whether it is only in Ireland that the wooden spoon is not seen solely as a kitchen utensil but as a weapon. Times have moved on and our understanding of the effects of corporal punishment on children has increased.

There are many other good reasons to ban corporal punishment: it causes serious harm to children; it teaches children that violence is an acceptable way of solving conflicts; it is ineffective as a means of discipline and there are positive ways to teach, correct or discipline children which are better for the child’s development and health; and it is more difficult to protect children from severe abuse if some forms of violence are legitimate. In tandem with this, we must provide parents with sufficient support in bringing up their children, including educating and supporting parents to develop good parenting skills.

Some 28 states in wider Europe have prohibited all corporal punishment, including in the family. Another 51 states have clearly and publicly committed to achieving a full ban. Ireland has been found in violation of the European social charter by the Council of Europe body, the European Committee of Social Rights. I hope the Government will find itself in a position to accept this amendment because it is the right thing to do. We must uphold and protect children’s rights.

In preparing from this debate I read a quote from Janusz Korczak, who as any children's rights activist would know is a Polish-Jewish paediatrician, educationalist and children’s author. In 1925 in his book “The Child’s Right to Respect” he said:

In what extraordinary circumstances would one dare to push, hit or tug an adult? And yet it is considered so routine and harmless to give a child a tap or stinging smack or to grab it by the arm. The feeling of powerlessness creates respect for power. Not only adults but anyone who is older and stronger can cruelly demonstrate their displeasure, back up their words with force, demand obedience and abuse the child without being punished. We set an example that fosters contempt for the weak. This is bad parenting and sets a bad precedent.

In a publication in Sweden to mark over 30 years on from Sweden’s abolition of corporal punishment, their then Minister, Maria Larsson, wrote:

When violence is used against children, their confidence in the adult world is damaged. And there is good reason to believe that if this violence is exercised by the child’s own parent, or by someone else close to them, the damage is greater.

Sweden introduced its laws in 1979 and they are now over 35 years in place.

Since 2006, the European Union has emphasised the promotion and protection of children’s rights as a priority issue. The European Parliament, in a 2009 resolution on the situation of fundamental rights across the Union, called for a total ban on corporal punishment in all member states. Again in November 2014, the Parliament adopted a resolution calling on member states to uphold their obligations and combat any form of violence against children, “including by formally prohibiting and sanctioning corporal punishment against children”.

Recently at UN level, Ireland through our permanent representative to the United Nations, David Donoghue, and our mission to the UN, has had a central role in the process as co-facilitators of the negotiations together with Kenya on "Transforming our world: the 2030 Agenda for Sustainable Development”. Goal 16.2 is to "End abuse, exploitation, trafficking and all forms of violence against and torture of children." Colleagues, children’s rights experts and advocates in Ireland concur.

In preparing for debate on this Bill, Tanya Ward, chief executive of the Children’s Rights Alliance said:

The Children’s Rights Alliance unites over 100 organisations working with children and their families across the country. Since our establishment in 1995 we have repeatedly called for the removal from Irish law of the defence of reasonable chastisement of children.

Research is clear that corporal punishment has no benefits and can cause children physical and psychological harm and can lead to short and long-term effects on their safety, health and development. There is no justification for corporal punishment and it is clearly at odds with Article 42A of the Constitution which “recognises and affirms the [ ... ] rights of all children” and commits to protect and vindicate those rights by its laws. Children have an absolute right to be protected from harm and abuse under the UN Convention on the Rights of the Child which Ireland ratified in 1992, there are no exceptions.

This coming January, Ireland’s progress on children’s rights will be examined by the UN Committee on the Rights of the Child, the Committee criticised Ireland’s position on corporal punishment in 1998 and 2006 and are likely to do so again in 2016. The Children’s Rights Alliance has been leading the civil society engagement with the UN Committee and has prioritised corporal punishment as a key concern. There is no reason to delay, Ireland has a moral and legal duty to protect children from corporal punishment.

Grania Long, chief executive of the ISPCC says:

As the national child protection charity, the ISPCC has long supported a ban on physical punishment of children. Through our national listening service, Childline, we hear on a daily basis the impact of violence towards children. Last year we responded to nearly 37,000 contacts from children regarding abuse or welfare, and many were from children who were anxious, traumatised and scared in their own home, due to violence.

We strongly support the amendment to remove the defence of reasonable chastisement, and believes that it meets the spirit and intent of the Children First legislation. Whatever the circumstance, there is no reason why the law should permit a defence of hurt or violence towards a child. Far too often, the debate centres on the needs or preferences of parents, rather than the rights of the child. The recent change to our constitution following the Children’s Referendum requires us to think very differently and put children at the heart of our considerations. Seanad members therefore have a long overdue and timely opportunity to place in law the right of a child to be safe in their own home, and we hope this opportunity will be grasped, in the best interests of children.

I am very conscious of the role of parents, so I contacted Laura Haugh, mum-in-residence and spokesperson for MummyPages.ie. She says that MummyPages.ie is Ireland's largest online parenting community and its members wholeheartedly support the campaign to repeal the defence of reasonable chastisement by parents and childminders of up to three children in Irish law. She says that slapping another person, especially a vulnerable child is wrong in all circumstances. She believes that allowing slapping by a caregiver to a child under the term "reasonable chastisement"' is legalising physical violence to another person and a form of child abuse. It demonstrates that it is okay for a person to hit another person and that it is okay for a bigger or stronger person to hit a smaller or weaker person.This kind of behaviour can lead to intense abuse in the home for the child who does not learn quickly from reasonable chastisement and is at complete odds with what is acceptable in today's adult society or, indeed, the school playground. Initially, the child is so hurt by the physical action and emotional breakdown of trust between parent and child that he or she forgets what he or she has done wrong. What we want in effective discipline is for the child to understand what he or she has done wrong and the consequences of his or her actions for others. We want the child to feel remorse but, ultimately, to still believe that he or she is a person of value. Slapping does not promote this.

Ms Haugh believes the main principle in promoting desirable behaviour is for the child to feel good and, therefore, be good. This is why regular positive affirmation of good behaviour is a much more effective tool than any other in the context of maintaining this type of behaviour. It is now well researched that when responding to an incident with a child that requires discipline, tuning in to the child to understand exactly why he or she misbehaved, helping him or her to realise how his or her behaviour might affect others and consistent follow-through with age appropriate consequences is much more effective than physical chastisement, no matter how reasonable the latter perceived to be.

I am conscious of the comments made last February by Pope Francis. While I did not appreciate his comments, it was encouraging to see the response both nationally and at the level of the Vatican. In particular, I wish to cite the letter toThe Irish Timesby Mary McAleese, who noted that the Vatican is a signatory to the UN Convention on the Rights of the Child and that the committee monitoring this wants all corporal punishment of children to be banned. She added that, in submissions to that committee last year, the Vatican said it did not promote corporal punishment, citing "respect for the inviolability of physical life and the integrity of the person". The Vatican has responded by appointing Peter Saunders, founder of the National Association for People Abused in Childhood, a UK-based organisation, to the Pontifical Commission for the Protection of Minors. Mr. Saunders was asked lead the non-violence against children working group of that commission. I contacted Mr. Saunders earlier today and he advised me that the working group members are unanimous in their position that there is never an instance where violence or reasonable chastisement is ever justifiable. Irish abuse survivor Marie Collins is also a member of the Pontifical Commission for the Protection of Minors. In discussions with both Marie Collins and Peter Saunders, I have found they are extremely supportive of Ireland updating its laws to bring into effect a ban on corporal punishment here.

Marta Santos Pais, Special Representative of the Secretary General on Violence against Children, advocates that corporal punishment can be prevented. She states, "By supporting caregivers in the use of non-violent child rearing practices; by promoting advocacy and social mobilisation to safeguard children's dignity and physical integrity; by reforming laws to introduce a clear ban of all forms of violence including corporal punishment, we can make a real difference in the life of children, all children, everywhere and at all times".

Ireland is now out of step with parents, children's rights advocates and international best practice. With this amendment, we have a way to unite and agree that all citizens are equal.