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Changing the law on physical punishment – rights, research and policy

Changing the law on physical punishment – rights, research and policy. Anne B. Smith NZ-UK Link Foundation Visiting Professor University of Otago. Underlying theme. Moral imperative of children ’ s rights to make a difference in children ’ s lives;

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Changing the law on physical punishment – rights, research and policy

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  1. Changing the law on physical punishment – rights, research and policy Anne B. Smith NZ-UK Link Foundation Visiting Professor University of Otago

  2. Underlying theme • Moral imperative of children’s rights to make a difference in children’s lives; • The role that research and researchers can play in promoting reforms to enhance children’s rights; • The importance of relationships between researchers, advocates and policy-makers.

  3. Difference between discipline andpunishment • Disciplineis guidance of children’s moral, emotional and physical development, enabling them to take responsibility for themselves • Physicalor corporal punishment is the use of force (however light) to cause pain, but not injury, for the purpose of correction or control

  4. Physical Abuse or Physical Punishment? • Contested line between abuse and neglect; • Main difference is frequency and intensity; • No agreement amongst experts; • Depends on cultural values; • In one US study “non-abusive spanking defined as 2.5 times in 24 hour time space, abusive spanking defined as 6 times a day (Cheng, 2000; Whipple & Richey, 1997); • In some countries when there are injuries to children this is ‘reasonable chastisement’

  5. Human Rights All corporal punishment is now clearly recognised as a human rights violation by both international and regional human rights monitoring bodies and mechanisms. … But despite the almost universal acceptance of the CRC, the systematic recommendations of the Committee on the Rights of the Child, the concurring recommendations of other Treaty Bodies, and the judgements and decisions of regional human rights mechanisms and high level supreme and constitutional courts in all regions, adults are still resisting and delaying the realization for children of a right which adults take for granted for themselves. (Newell, 2011, p. 22)

  6. The UNCRC – Unequivocal Obligation to Eliminate PP • Article 19 protection from all forms of physical or mental violence, injury or abuse, measures to prevent maltreatment; • CRC Concluding Observations consistently recommended abolition; • CRC General Comment No 8 (2006); • CRC General Comment No 13 (2011) – recommends paradigm shift, non-negotiable rights, links to Articles 2, 3, 6, 12.

  7. New Zealand Law before 2007 • Based on English common law (in turn based on Roman Law); • Section 59 of the Crimes Act (1961, amended in 1990) – parents justified in using force to correct a child “if force used is reasonable in circumstances”; • Used successfully to defend parents for hitting child with bamboo stick, belt, hosepipe, piece of wood, putting a child in chains.

  8. New Lenses on Childhood Childhood Studies and Children’s Rights • Children’s agency, right to participate, status as subjects not objects, persons not possessions; • Childhood socially constructed within historical and social contexts; • Changing generational relationships, increasing family democracy, decreasing expectation of unquestioning obedience; • Children not passive objects of discipline; • Decreasing violence in one generation reduces it in the next (General Comment, 13, 2011).

  9. Children’s Voice • “The power of children to articulate their experience and have their account validated in public settings may play an important role in changing values and practice with respect to corporal punishment” (James Garbarino, 2005) • Seeing physical punishment from the child’s perspective is a powerful tool for sensitizing adults.

  10. Other Relevant Theoretical Perspectives • Ecological Theory (Bronfenbrenner) • Sociocultural Theory (Tomasello, Vygotsky) • Attachment Theory (Ainsworth) • Social Learning Theory (Holden, Patterson)

  11. Research on Physical Punishment “Today research showing the risks associated with physical punishment is robust, the convention has been integrated into the legal and policy frameworks of many nations, and 31 [now 33] countries have enacted prohibitions against the physical punishment of children. These three forces – research, the convention and law reform – have altered the landscape of physical punishment.” (Joan Durrant, 2012, p. 1373)

  12. Child Obedience and Problem Behaviour • Compliance – 3 studies showed  compliance, 1 study showed no relationship, 1 showed ; • Antisocial Behaviour – 12 out of 13 studies showed ; • Parent Education Project –causal relationship parent education physical punishment and children’s externalising behaviour (Beauchqine et al, 2005)

  13. Other Unintended Consequences • Mental health problems (12 out of 12 studies) • Heightened levels of cortisol in toddlers (Bugental et al, 2003) • Disrupted parent-child attachment (13 out of 13 studies) • Delayed cognitive and language development (7 out of 7 studies)

  14. Qualitative StudyRussell, 1996, p. 69 “You will do as you’re told and you won’t question. My mother would use the wooden spoon; my father was more into bare hands. …If you were naughty, they almost took it as a personal affront, they just seemed so offended by it, like you were insulting them. I was basically very good and I was hit frequently. I’m sure through being smacked it made me do so silly things without thinking…The message I got from them when they hit me was not “what you’re doing is bad, don’t do it again”. The message I got was ‘we don’t love you’.”

  15. Childhood Studies • Compliance – construction of children in research as the passive recipients of parental authority; • Exploration of children’s perspectives on physical punishment:- NZ children reported being hit with spatulas, tennis rackets, spoons, belts; feeling sad, angry, unloved and scared; punished by many family members; 92% reported being physically punished (Dobbs et al., 2006)

  16. Children’s Perspectives • If they changed the law then a lot of people will realize what they had done to their child and they would probably … be happy that the law was changed. If they don’t change the law they will think ‘Oh well, the child doesn’t mind so we can keep on doing it’ (UK child, Willow & Hyder, 1998, p. 52). • “Adults have more power … They can get really mad and swear … and stuff … Children’s can’t do anything because they don’t have enough power. We have to do what they say. Adults can … hurt them” (Australian child, Saunders & Goddard, 2010, p. 135).

  17. The Influence of Research: 2004/2005 Literature Review • Initiated by Children’s Issues Centre and funded by Office of the Children’s Commissioner • Government officials input into scope of review • Two reports produced, one free for parents • Widespread publicity to key findings • Lobbying of politicians by NGOs and flooding them with information • SKIP (Strategies for Parents, Information for Kids)

  18. Preliminary Developments • Member’s Bill (drawn by ballot) – Green Party, Sue Bradford, 2007 – 1st reading 63 in favour and 54 against; • Bill went to a Select Committee, supported by majority; • 2nd reading – 70 in favour, 51 opposed • Proceeded to a Committee of the House • Lengthy line by line debate in House • Easter recess – meeting Bradford, PM Helen Clark and LoO John Key • Compromise amendment (police discretion)

  19. Different Perspectives on Law Opposed • Many individual members of the public • Fundamentalist Christian groups (Family First) • Some politicians (but few after Select Committee hearings) Supportive • Commissioners for Children • NGOs (Barnardos, UNICEF, Save the Children, Plunket Society, EPOCHNZ etc) • Professionals (pediatricians, teachers, family lawyers, social workers, leaders mainstream churches) • Majority of politicians • Māori and Pasifika orgs

  20. New Zealand Law Change • Bill passed into law on May 2nd, 2007 – 113 MPs in favour, 8 opposed; • June 2007, NZ became first English-speaking country to ban all physical punishment of children through the Crimes (Substituted Section 59) Amendment Act 2007; • “Nothing in subsection (1) or in any rule of common law justifies the use of force the purpose of correction”[subsection 1 describes situations where force may be used – eg to prevent criminal offence].

  21. The Failure to Educate • CRC (Gen Comm 8) argued for “comprehensive awareness raising of children’s rights to protection and of the laws that reflect this right.” • No NZ government attempt to change public opinion or to educate the public about the law change (cf Sweden before their law change; UK NSPCC campaign in 2007) • Even NGOs are not active on issue – “let sleeping dogs lie” feeling.

  22. Aftermath of Prohibition • Attitudes • OCC Omnibus Survey (2007): Fewer parents endorsed smacking (still more than half did) • Ministry of Health Study (2008): 4.5% parents used PP • Lawrence & Smith study (2008): ½ parents not to understand it • Referendum (2009): “Should a smack as part of good parental correction be a criminal offence in NZ?” (87.4% voted “No” - only 54% turnout) • MSD and Police Reviews – no evidence of unnecessary state intervention

  23. Preliminary Findings of a New Study – Dr Julie Lawrence • Longitudinal study of 805 families from birth – periodic data collection • At 18 months (2011-2012) “Do you currently avoid using any discipline practice with your child that you experienced during your childhood?” About ¼ said “Yes”. • Majority of these (75%) said they would avoid physical punishment – reasons included legislation, their parents’ use of it, harmful effects.

  24. Does legislation makes a difference? • European cross-country comparison shows countries with legal prohibition of physical punishment (Austria, Germany and Sweden) had less violent parenting and more negative attitudes to physical punishment than countries with no legal prohibition (France and Spain) (Bussman, Erthal & Schroth, 2011). • Legislation accompanied by publicity campaigns likely to be even more effective.

  25. International Context • 33 states with full prohibition:Albania, Austria, Bulgaria, Congo, Costa Rica, Croatia, Cyprus, Denmark, Finland, Germany, Greece, Hungary, Iceland, Israel, Kenya, Latvia, Liechenstein, Luxembourg, Netherlands, New Zealand, Norway, Poland, Portugal, Moldova, Romania, South Sudan, Spain, Sweden, Togo, Tunisia, Ukraine, Uruguay, Venezuela. • 2 states prohibited by Supreme Court (not in legislation): Italy, Nepal. • 21 states committed to prohibition/legal reform: • 142 no commitment.

  26. Conclusions • New Zealand has made progress toward implementing Article 19 – some distance to go yet; • The reforms were a result of the following factors:- • UNCRC • Commissioners for Children • Advocacy by NGOs • Input and dissemination by researchers • Support of professionals and mainstream churches • Political window of opportunity • Attitudes and practices are changing but further public education and parent support needed

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