Research Topics: UN Convention On The Rights Of The Child

Civil rights and freedoms

Chapter Four Civil rights and freedoms Corporal punishment Civil rights and freedoms Corporal punishment CONCLUDING OBSERVATION . The Committee recommends that the State party: a) With urgency adopt legislation throughout the State party to remove the “reasonable chastisement” defence and prohibit all corporal punishment in the family and in any other contexts not covered by existing legislation; b) Promote positive, participatory and non-violent forms of discipline and respect for children’s equal right to human dignity and physical integrity, engaging with children and parents and all those who work with and for them, and carry out public education programmes on the negative consequences of corporal punishment. Relevant Articles of UNCRC: Article 19 of specific relevance. Commentary on progress a) With urgency adopt legislation throughout the State party to remove the ‘reasonable chastisement’ defence and prohibit all corporal punishment in the family and in any other contexts not covered by existing legislation. Legislation The power to remove the ‘reasonable chastisement’ defence lies with the UK Parliament in Westminster not with the National Assembly for Wales. Where the Assembly has power it has demonstrated its strong commitment to ending the corporal punishment of children, for example, it was the first administration in the UK to ban corporal punishment in child minding and day care settings. 1 To the Welsh Assembly Government’s credit in October 2002 (in response to the UN Committee’s Concluding Observations) they issued a Cabinet Statement indicating that it was intent on making representation to the UK Government to change the law to remove the defence of reasonable chastisement: “The recent observations of the UN Committee on the Rights of the Child concluded that current legislation in the UK does not comply with the principles of the UN Convention. It recommended that corporal punishment in families and all other contexts should be prohibited in law, concluding that action should be taken to promote non-violent forms of discipline, respect for children’s rights to human dignity, including through public education programmes. I shall write to John Denham expressing the support of the Welsh Assembly Government for these views.” 2 The UK Government refused to re-consider the case for legal reform. Then in 2004, a vigorous and high profile campaign took place, co-ordinated by the Children are Unbeatable! Alliance, to add a new clause to the Children Bill. This clause would remove the common law defence of ‘reasonable chastisement’ and give children ‘equal protection’. The UK Government rejected this opportunity to legislate on the matter from the outset and consistently briefed against the campaign, emphasising parents’ right to discipline their children and raising the spectre of parents being criminalised and brought before the courts. At the final vote in the House of Commons on November 2nd 2004 the Government refused to allow its own MPs a ‘free vote’ i.e. to vote according to their personal conscience, as is traditional in the UK in such matters. The proposed new clause () was defeated by 423 votes to 75. The Government instead threw its weight behind another clause (), which was presented as a compromise but which in fact endorsed the corporal punishment of children and introduced a new statutory defence of ‘reasonable punishment’. Clause 56 was strenuously opposed by the campaign but was approved by 284 votes to 208. It was enacted as Section 58 of the Children Act 2004) and came into force in England and Wales on January 15th 2005. Sir , spokesperson for the Children are Unbeatable! Alliance, said: “Section 58 of the Children Act perpetuates the archaic defence that allows children to be legally hit and hurt. It is unjust and does not satisfy our human rights obligations to children under UN and European agreements.” 3 In the concluding debate on the Children Bill the UK Government Minister for Children gave an undertaking to review the operation of Section 58 after 2 years. Welsh Members of the House of Lords and Welsh MPs made a notable contribution to the 2004 campaign providing the lead sponsor for the ‘equal protection’ clause in the House of Lords () 4 and two of the four sponsors in the House of Commons (). 5 Six other Welsh Parliamentarians spoke in favour of the ‘equal protection’ clause and over a quarter of the 40 MPs in Wales voted for it. 6 Although the campaign for legal change did not succeed there is a general acknowledgement that it raised awareness of the issue of physical punishment and generated some high quality debate and media coverage. This has helped shift the consensus further towards reform. A number of key agencies notably the Association of Chief Police Officers (ACPO) and the Association of Directors of Social Services (ADSS) made public both their opposition to Section 58 and their belief that ‘equal protection’ would not lead to the criminalising of parents. In contrast to the UK Government, in October 2002 the Welsh Assembly Government with the Cross Party support of a majority of the National Assembly’s 60 Members, became the first government in the UK to take a principled stand against the physical punishment of children. 7 Since then it has consistently urged the UK Government to act to remove the ‘reasonable chastisement’ defence. In January 2004 during a debate on the Children’s Green Paper, over two thirds of the National Assembly for Wales voted to signal its regret that the UK Government had failed to take action: “The National Assembly regrets that the UK Government continues to retain the defence of reasonable chastisement and has taken no significant action towards prohibiting the physical punishment of children in the family” (In favour 41, Abstain 3, Against 9)8 In May 2004 during a debate on the Children Bill in the National Assembly for Wales, the Minister stated: “…I am pleased that Members have … raised the issue of the opportunity that we hope this forthcoming legislation will offer the Government to take a stand, as the Welsh Assembly Government has taken a stand, in favour of children’s rights by removing the defence of reasonable chastisement . . . . .This is not about criminalising parents; this is about ensuring that children have the same rights as adults regarding physical punishment and ensuring that this opportunity is used. I hope that the Government will support an amendment to the Bill and that there will be a free vote to take this forward.” 9 b) Promote positive, participatory and non-violent forms of discipline and respect for children’s equal right to human dignity and physical integrity, engaging with children and parents and all those who work with and for them, and carry out public education programmes on the negative consequences of corporal punishment. The Welsh Assembly Government stance against physical punishment was expressed within the context of providing support to parents as well as a child’s right to be protected. In the Cabinet Statement of October 2002 the Minister said: “Whatever the legal position, I believe that our approach needs to be based on support for positive parenting. The key is to support parents and others who care for children and to promote positive relationships in families. We must seek to change social attitudes so that physical punishment of children is no longer considered acceptable, no matter what context” 10 Since January 2004 the Welsh Assembly Government has funded ‘Sdim Curo Plant!/Children are Unbeatable! in Wales 11 to provide them with advice and guidance on what forward measures can be taken using the powers of the Assembly to act, primarily in the fields of health, child protection, domestic abuse, parenting support and community regeneration. The Welsh Assembly Government has so far published four key documents 12, which expressly underline its commitment: CHILDREN AND YOUNG PEOPLE: RIGHTS TO ACTION (FEBRUARY 2004) “The Assembly Government believes that the current legal defence of ‘reasonable chastisement’ should be ended. We wish to encourage respect for children’s rights to human dignity and nonviolent forms of discipline, including through public education programmes. We have made representations to the UK Government about this. We do not accept that smacking teaches children how to behave as they grow up. Children who are smacked are more likely to believe that the strong get their own way and that violence is an acceptable manner of expressing a view or dealing with anger or frustration. We believe that we must respect what children themselves have told us: that a smack serves to create distrust, fear and dislike, but is not the best way to instill respect for the adult or acceptance of their values. The Assembly Government has banned smacking in every form of public and regulated care in Wales. We want to make sure that parents and carers have the information and advice they need on effective ways of dealing with children’s behaviour, including alternatives to physical discipline. We are funding a public education programme including the production of information leaflets and the provision of advice.” NATIONAL SERVICE FRAMEWORK FOR CHILDREN,YOUNG PEOPLE AND MATERNITY SERVICES (SEPTEMBER 2005) “Children and Young People’s Framework Partnership Plans [to] include joint working arrangements to promote and deliver parenting education that includes: ….Suggesting appropriate methods for managing children’s behaviour that supports the Welsh Assembly government’s views that physical punishment of children is unnacceptable” PARENTING ACTION PLAN (MARCH 2005 PUBLISHED FOR CONSULTATION) “The Welsh Assembly Government believes that smacking children is wrong. We do not think it encourages adults, children and young people to respect each other. We believe that there are better ways of dealing with difficult behaviour and teaching children right and wrong. We know that many parents would like advice on how to get this right. We think that one of the booklets given out to parents should include tips on how to bring children up without using smacking.” The final Parenting Action Plan will be published in autumn 2005 and the booklet about ‘Alternatives to Smacking’ is likely to be distributed through the universal Health Visitor service from 2006 onwards. TACKLING DOMESTIC ABUSE:THE ALL WALES NATIONAL STRATEGY (MARCH 2005) “This strategy aims to increase the safety of women and children/young people by recognising the need for:…Encouraging policies that oppose the smacking of children and seeking to promote alternatives to physical discipline..” Wales is the only part of the UK where physical punishment of children is accepted as being part of the spectrum of domestic abuse. In January 2004 a group of Assembly Members and Welsh MPs went on an official fact finding visit to Sweden organised by ‘Sdim Curo Plant!/Children are Unbeatable! and Radda Barnen (Save the Children, Sweden). This proved to be extremely valuable in informing politicians about how legal change can be introduced and public education undertaken. ‘Sdim Curo Plant!/Children are Unbeatable! has regular meetings with the Minister for Children and the Welsh Assembly Government’s Cabinet sub Committee for Children and Young People is due to review progress in October 2005. The Alliance continues to press for a properly funded campaign of public education supported by an increased level of parenting support. ‘Sdim Curo Plant!/Children are Unbeatable! has also met civil servants in the Welsh Assembly Government to discuss ways to translate ideas into operational planning and delivery at a local level. ‘Sdim Curo Plant!/Children are Unbeatable! is currently working to develop public awareness initiatives at a community level in partnership with NGOs, local authorities and health agencies in order to demonstrate what can be achieved. These can then be adapted or replicated by others. We are seeking funding to evaluate these initiatives so that we can show what works best to change public attitudes and parental behaviour for the benefit of Welsh children and young people. All relevant information will be submitted to the review of section 58 of the Children Act 2004 in the autumn of 2006. Conclusion Wales is acknowledged to be leading the way on the issue of physical punishment within the UK. However the mixed messages coming from the two Governments (UK and the Welsh Assembly) are confusing for parents, public and young people. Whilst the political commitment from the Welsh Assembly Government is genuine, there is a lack of resources to fund both public education and an adequate level of support for parents and this, combined with the continued existence of the legal justification for hitting children, remains a serious difficulty in making further progress. Credit:ivythesis.typepad.com

Civil rights and freedoms

Chapter Four Civil rights and freedoms Corporal punishment Civil rights and freedoms Corporal punishment CONCLUDING OBSERVATI...

Children and Social Policy

Social Policy and Childhood: An Overview   The United Nations Convention on the Rights of the Child   It has been suggested that ‘the Convention of 1989 and the World Summit of 1990 are watersheds in the history of children’ (1992). Although no everyone is so optimistic about its potential ( 1989) and it is clearly still too early to assess its full effects, the United Nations Convention on the Rights if the Child is arguably the most significant development in UK policy towards children since 1945. Ratified by the UK in December 1991, the Convention sets out a number of detailed standards and principles that are intended to govern the way states deal with children.   Under the terms of ratification, governments were required to ‘make the principles and provisions of the Convention widely known by appropriate and active means to adults and children alike’ (Article 42). Guidelines from the UN Committee on the Rights of the Child advocated the widest possible popular participation and public scrutiny of the whole process. In the event, there has been almost no debate in the UK and it is likely that very few people – adults or children – are aware of the Convention’s existence. The response of the government in the UK has been justifiably described as ‘more of a whimper than a bang’ ( 1992). In its first Report to the UN Committee on the Rights of the Child, the UK government declared that ‘ratification of the Convention did not require any amendment to UK legislation’ (1994). When it comes to the detail of the specific articles of the Convention this is an arguable position. Many of the provisions are fairly broadly drawn – deliberately so, to encompass the circumstances of all nations. The Convention accepts that due account should be given to ‘the traditions and cultural values of each people’ and makes allowance for ‘the national conditions and means’ of signatories. This being so, it is not difficult to make out a case that UK policy is in line with most of the specific provisions of the Convention Even at this level, however, the opposite can also be argued, and we shall examine a number of the specific provisions in later chapters. Certainly, the government’s report on its progress in implementing the Convention has come under attack from a number of voluntary organisations (8 February 1995) and been dismissed as ‘a deeply complacent document, dishonest by omission and providing no recognisable picture of the state of our children’ (1995,).  Whatever its direct impact on UK legislation and policy, however, we would argue that the Convention’s real potential lies in its underlying principles and values. Because, despite the government’s claim that ‘the UK’s perception of children’s rights and needs is closed aligned with the philosophy of the Convention’ ( 1994), we would suggest that the core values of the Convention are significantly different from those that have shaped policy in the UK. In particular, we would cite the following elements of the UN Convention which differentiate it from UK policy:   � children are visible and central � children are people with inalienable human rights � children have a right to special assistance � children’s own views should be given due weight � greater emphasis on state rather than family responsibility.     Children’s central position   Although it is the least tangible difference in emphasis, the fact that the UN Convention places children squarely in the centre of the picture is perhaps the most fundamental shift in perspective. The recognition of the child’s position within the family is present in the Convention in the Preamble and again in Article 18. The latter out lines the duty of states to provide support for families to assist them in their child-rearing. But nothing in any part of the Convention detracts from the fact that it is the rights of the child that are at issue. As  (1989) has pointed out:   It represents adult society’s public declaration to children and young people that they are valued members of the community with shared civic obligations and deserving, as well as owing, respect to others. (p. 60)     Children are people   On the face of it, nothing could be more banal than the claim that children are people in their own right. In fact, the claim carries with it two importance implications. The first is that children are valued for what they are now rather than what they might become in the future. In contrast with so much of the UK debate on policy for children there is no reference in the Convention to ‘investment’ as a justification for children’s rights. The second is that children, as people, must be entitled to human rights on the same basis as everybody else. As Penelope Leach has argued, the phrase ‘children’s rights’ is needed not because we are identifying a separate category of rights but because children have been excluded from those which are universally human ( 1994). The importance of the stress on children’s human rights, as opposed to other more frequently applied concepts such as their ‘welfare’ or ‘needs’, is that rights confer dignity and respect. As  (1992) has suggested, ‘because children have lacked the moral coinage of rights, it has been easy to brush their interests aside.’ A good example of this is the case of corporal punishment. If children possess the same human rights as adults, then by definition they should enjoy the same protection from being hit by another person. Yet in the UK children have no protection from corporal punishment within the family – an issue we shall discuss further in Chapter 8. Accepting children’s rights as human beings does not mean that they should be treated as adults. The Convention differs from the more extreme children’s rights perspectives which emphasise children’s autonomy (1978; 1975). Children’s vulnerability is recognised with the consequent right of protection, including occasionally protection from the consequences of their own actions. Children are not, as  (1977) put it, ‘abandoned to their rights.’  A number of feminist writers have taken issue with the concept of ‘rights’, on the basis that it involves an individualistic and masculine view of the world ( 1982). However, it is important to stress that the UN convention, and the model of children’s rights it espouses, goes a long way to meet this criticism in that it does not see children as autonomous individual but rather promotes the fact that they have an important interdependent relationship with their family.  The emphasis (Article 3) on ‘the best interests of the child’ clearly preserves a strong element of paternalism within policy towards children. In this respect, the Convention does little to solve the dilemma of the conflict the protection of children on the one hand and respect for their autonomy as human beings on the other. Indeed, some of its critics suggest that the Convention errs too far in the direction of children’s welfare rather than their rights ( 1989). We would agree with  (1992), however, when he argues that protection and autonomy should not be seen as a dichotomy. Any programme of children’s rights must recognise and reflect both principles. The virtue of a strong emphasis on children’s rights to respect and dignity, which is central to the values underpinning the Convention, is that it confines paternalism, even if not totally eliminating it.   Children’s right to special assistance   This principle, enshrined in the preamble to the Convention, was further endorsed at the 1990 World Summit for children, where 159 nations assented to the proposition: That the lives and normal development of children should have first call on society’s concerns and capacities and that children should be able to depend on that commitment in good times and in bad (1990)   The idea that children should have first claim on society’s resources is not a novel one. It would certainly be given lip service within UK social policy. The important point to stress, however, is that, by locating the principle within a framework of children’s rights, it does not depend upon either a sentimental image of childhood or on an ‘investment’ motive. Children are entitled to have first claim because they are essentially victims of adults. As  (1987) put it: ‘children are by definition weaker and more vulnerable than adults – their suffering is both greater and more clearly the responsibility of adults.’  The point is well underlined by the evidence, presented to UNICEF by  (1990), relating to the effects on children of social and economic policies in the UK during the 1980s. Bradshaw concluded: ‘Children have borne the brunt of the changes that have occurred in the economic conditions, demographic structure and social policies of the UK.’ Children’s relative powerlessness to protect themselves from the consequences of decisions taken by adults justifies their right to special treatment. This is not a theme that is reflected either explicitly or implicitly in UK policy on children.   Giving weight to children’s views   Article 12 of the Convention grants the child the right to have his/ her views heard and be ‘given due weight in accordance with the age and maturity of the child’ and it is true that this principle has found its way into UK social policy and is enshrined in the Children Act 1989. As we have already indicated, though, the scope of the Children Act 1989 is relatively narrow. It certainly does not ensure that children’s voices are hard in all areas of social policy. Indeed, the principle of giving the child a voice is remarkably muted in UK social policy – even in areas such as education. The United Nations appears to have been unaware of the irony involved in producing the Convention without any reference to the views of children. But perhaps this serves to underline the fact that rights on paper are only a first small step in improving children’s lives. Bringing about the institutional changes required to make the rights a reality is more problematical. This is particularly true when it comes to giving children a voice in matters that concern them. This is an issue we shall return to in our final chapter.   Emphasis on state rather than family responsibility   The Convention does, as we have already pointed out, recognise ‘the responsibilities, rights and duties of parents’ in relation to children (Article 5). The Preamble affirms the importance of the family to children’s welfare – to an extent that some critics find unacceptable ( 1989). Nevertheless, there is a clear difference in emphasis, with regard to the respective responsibilities of family and state, between the Convention and the values underpinning UK policy. There is no sense in the Convention that the family is primarily a private institution. The responsibility of the state to support families caring for children is emphasised much more strongly.    The difference between the UN and UK philosophies is most clearly illustrated by comparing the approach to early years’ childcare. This is cited specifically in the Convention as a service that should be provided as a right for all children of working parents, but UK legislation and policy establishes no such right. Instead, as we shall discuss in Chapter 6, local authorities have a duty under the Children Act 1989 to provide day care for the much more restrictive category of ‘children in need’.   Conclusion There is considerable scope for debate as to whether in practice the UN Convention will advance the cause of children in the UK. Most of the sections dealing with substantive rights are necessarily unspecific and open to wide variation in interpretation. Children would have more to gain, perhaps, if the Convention were to open up greater discussion about the principles and core value that shape social policy in the UK. The contrast between the commitment to respect for the child, which is so central to the UN Convention, and the indifference to children which runs through UK policy is surely the key lesson.   Credit:ivythesis.typepad.com

Children and Social Policy

Social Policy and Childhood: An Overview The United Nations Convention on the Rights of the Child It has been suggested that ...

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