Punishment or discipline? Children and youth are persons, not property

Our commitment to advocacy requires us to accept and promote the principle that children and youth are persons rather than property. It also commits us to uphold the basic rights enshrined in the United Nations Convention on the Rights of the Child (1), which has been ratified by all but three nations of the world (the United States and Somalia, who have signaled their intention to ratify by formally signing the Convention, and Timor-Leste, which became independent only in 2002) (2). At the 2003 Annual Conference of the Canadian Paediatric Society (CPS) in Calgary, Alberta, the CPS Board passed a motion advocating the revision of the Criminal Code of Canada in the best interest of children and youth with respect to section 43 (s 43). As it stands today, s 43 qualifies the laws pertaining to assault, permitting parents, guardians and teachers to use “reasonable” force to discipline children (3). It states: “Every school teacher, parent or person standing in the place of a parent is justified in using force by way of correction toward a pupil or child, as the case may be, who is under his care, if the force does not exceed what is reasonable in the circumstances” (3). The Canadian Foundation for Children, Youth and the Law is challenging s 43 in the Supreme Court of Canada based on the argument that it infringes on a child's equality rights under section 15 of the Canadian Charter of Rights and Freedoms (4,5). Terminology describing the use of force in children can be confusing. The terms “corporal punishment” or “physical punishment” apply to threats and acts, often violent, that are intended to cause pain or instill fear for the purpose of discipline. Attempts to distinguish such punishment from physical abuse in terms of force, parental intent or extent of injury have not been successful (6). These terms do not apply to more effective forms of discipline that involve setting of boundaries, detention or restraint, such as ‘time-out’ for a young child, or ‘grounding’ for a teenager. Nor are they applicable to restraint used by parents or caregivers to prevent harm to themselves or the child. s 43 is an ethical anachronism, conceived in a time that long predates the United Nations Convention on the Rights of the Child – the s 43 defense (to what would otherwise constitute assault under the Criminal Code) has existed in Canadian criminal legislation since the 1892 Criminal Code! Children and youth now have status, and are no longer the ‘property’ of their parents. There is extensive scientific evidence that certain forms of physical punishment, such as spanking, do not improve the psychosocial development of children or youth and, of greater concern, growing evidence that they may be detrimental (7). There is also the possibility that physical punishment may escalate to physical and emotional abuse (2). Since 1979, 11 nations have explicitly abolished all forms of physical punishment by parents and all other caregivers (many never had such a defense in their laws) (8) and at least 90 have legally abolished physical punishment from their school systems. Their example shows that it is unnecessary to criminalize parents who use physical punishment (except in situations that meet the legal definitions of child abuse). Instead, we need to educate parents and gradually change the culture of our society toward alternate (effective) forms of discipline. The revised Criminal Code should ensure that those providing care to children are still protected from charges of assault when restraining children in their care, such as for their own safety. However, legislative change and tools to educate families in need of help in learning effective discipline are essential. Given the weight of the scientific and moral positions, physical punishment is no longer acceptable as ‘discipline’. It offends our most fundamental principles regarding violence. Viewed from the perspective of children and youth, s 43 is an assault on their basic human rights. As paediatricians, we must urge that this anachronism be removed and that the Criminal Code of Canada be revised in the best interests of children and youth.

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