The Rights of Children Part Two: Children's rights and child discipline

By Katherine Covell, PhD

This is the second article in a continuing series exploring the rights of the child. Dr. Covell is a professor of psychology at Cape Breton University, and the executive director of the Children's Rights Centre.

Illustration by Kim Rosen

One of the major challenges faced by parents is teaching children how to behave in a socially responsible manner. Discipline is important for all children. It is through discipline that children internalize the rules, values, and beliefs that help them become respectful and contributing members of society. The UN Convention on the Rights of the Child does not specifically address what type of discipline parents should use with their children. However, the Convention and social science data are in agreement that non-violent — that is, non-physical — discipline is in the best interests of the healthy development of the child. Unfortunately, Canadian law, unlike that of many countries, continues to allow for the use of physical punishment with children.

Child abuse and spanking

Article 19 of the Convention requires Canada to provide protection to children from all forms of abuse. There is now general agreement that it is not possible to distinguish physical punishment from physical abuse regardless of parental intent, degree of force, or extent of injury. In addition, there is very compelling evidence, recognized by Health Canada, that the use of any degree of physical punishment is a major risk factor for serious physical abuse of children. Not surprisingly, where the use of physical punishment is banned, child physical abuse is uncommon, and death from child physical abuse is almost unheard of. In contrast, in Canada children are overrepresented as victims of physical abuse, and the chance of being a victim of family homicide is greatest in the first year of life.

Article 3, the overarching principle of the Convention, says that governments must ensure that the best interests of the child are a primary consideration in all laws, policies, and practices that are of relevance to children. There is significant evidence that physical punishment is neither in the best interests of the child, nor, in fact of parents. Although physical punishment may bring immediate compliance, the longer-term consequences are profoundly detrimental to the healthy development of the child and the parent-child relationship. The physical consequences include cuts and bruises, bone fractures, and central nervous system damage. The behavioral and psychological consequences include poor parent-child relationships, increased rates of childhood behavior problems, aggression and antisocial behaviors such as bullying, dating violence, criminal violence, depression, and low self-worth.

Although such problems associated with the use of physical punishment are acknowledged by Health Canada, there has remained a reluctance to change Canadian legislation to ban the parental use of physical punishment. Adults and animals are protected from physical assault under Canadian law. Children do not have the same protections.

Section 43 of Canada’s Criminal Code provides a legal defense for the parental use of physical punishment. There have been numerous recommendations to repeal Section 43, including the recent legal challenge arguing that it constitutes age discrimination and is therefore a violation of children’s rights under the Canadian Charter of Rights and Freedoms, and the UN Convention on the Rights of the Child. In January 2004, the Supreme Court of Canada upheld the constitutionality of Section 43 determining that it is not discriminatory or inconsistent with the rights of the child. However, they did impose new limitations on the parental use of physical punishment. These limitations are that physical punishment:

• must be used only for ‘correction’,
• cannot be administered to children under 2 or teenagers,
• cannot be administered to children with disabilities or ‘contextual factors’ that mean they will not learn from it,
• cannot be on the head or involve the use of objects,
• should not be ‘degrading, inhuman, or harmful’,
• should be ‘of a transitory and trifling nature’, and
• must not result from caregiver frustration, loss of temper, or abusive personality.

These limitations are a very small step in the right direction, but they remain ambiguous and open to wide interpretation. More importantly, only a complete ban on the use of physical punishment would be consistent with the rights of the child.

International pressure

In fact, the UN Committee on the Rights of the Child (the body which oversees governments’ compliance with the Convention) has criticized Canada for its refusal to fully ban the parental use of physical punishment. In October of 2003, in its review of Canada’s compliance with the provisions of the Convention, the following statement was made: “The Committee is deeply concerned that the State Party has not enacted legislation explicitly prohibiting all forms of corporal punishment and has taken no action to remove Section 43 of the Criminal Code which allows corporal punishment.”

Canada’s answer is evident in its 2005 report to the UN Global Study on Violence Against Children. In essence, the stated position of the government is that whereas it encourages the use of alternate strategies for discipline, it wishes to continue to allow the physical discipline of children between the ages of 2 and 12 years because it does not wish to criminalize parents for “reasonable” force used against children.

This is a weak argument. First, it is not at all necessary, or likely, that the removal of Section 43 would evoke widespread prosecution of parents. In fact, in Sweden, the banning of all physical punishment has not resulted in increased rates of prosecution for child physical assault, or in rates of removal of children to out-of-home care.

Also, the Canadian criminal code includes other options. The common law defenses of de minimis and necessity will remain in place, preventing prosecution for trivial offense. This would allow a light tap on the buttocks (de minimis), and the use of necessary physical interventions such as restraining a child into a car seat, or breaking up a fight between siblings (necessity).

Finally, past cases have made it evident that there is too much variation in how judges define reasonable force. In our courts, “reasonable” physical punishment of children has been allowed to include punishments that have resulted in bruises, nosebleeds, welts, swellings, and chipped teeth, and punishments such as kicking an eight-year old across a room.

Clearly, Canada’s record and position are at odds with the fundamental rights of the child. The good news is that efforts for repeal continue. At the time of writing, for example, Senator Celine Hervieux-Payette has, for the second time, tabled a bill in the Senate Chamber to repeal Section 43. And there is growing awareness of the benefits of non-violent strategies for the socialization and discipline of children.

Better discipline

Discipline that is consistent with children’s rights would respect the dignity and rights-bearing status of the child and promote the healthy physical and psychological development of the child. Since teaching the child is the primary purpose of discipline, the focus here is on reducing unwanted behaviors by taking proactive measures.

The Convention offers guidelines here by obliging parents to guide their children in their exercise of their rights (Article 5) and through the principle of participation (Article 12), both in accord with the child’s evolving capacities.

Implicit in the exercise of rights is the exercise of responsibility and respect for the rights of others. Teaching children to be socially responsible can be challenging. Much can be taught, however, through parental behaviors. Parental modeling of positive behaviors, social problem solving, fairness, and justice is one effective means to raising a socially responsible child. Providing the child with role-taking opportunities and explanations of the feelings of others, both effective teaching tools, will be most effective when parents themselves are modeling concern for others. Rewarding the child with positive attention for prosocial behaviors such as sharing and helping is also effective.

Ensuring clear communication of what is expected from the child is important. A young child may not understand what it means to “be good when we go out”, or “play nicely with your brother”. However, she will understand that she must hold a parent’s hand in a parking lot or a shopping mall and share her toys when playing with other children, and explaining the reasons for these rules helps the child learn how to make good choices.

Rules, routines, and consistency help with communication. For example, it is easier for a child to be compliant if he knows that toys and books are to be shared, that she can expect dinner to be followed by bath, story, and bed.

In order to make the right choices in daily life, children need to believe their decisions matter. Providing opportunities for the child to express herself, think, and reason; make choices and learn about their consequence; and take part in family decision making respects the child’s rights to participation and improves the child’s decision-making skills and self-esteem. It is, of course, important that the child be limited to choices among acceptable alternatives. For example, a young child may be allowed to choose among apple juice, orange juice, or milk, whether to wear her red coat or blue coat, or whether to learn to play the recorder or the violin, rather than simply being asked his wishes. Input into family rules and opportunities to negotiate changes to family rules help the child learn the purpose and benefits of rules and promote compliance with them.

Age-appropriateness, as noted in the Convention, is a key factor in parental guidance and in the respect of participation rights. Discipline must be appropriate to the developmental level of the child. Difficulties with socializing children can arise when a parent’s expectations or communications are beyond the capacities of the child.

Unfortunately, Canada has no required courses in child development. However, there are many resources that can help parents understand what to expect at various developmental stages. It may be especially important that parents learn about the developmental necessity of growing independence in young adolescence and of the particular importance of a healthy peer group at this stage.

Knowledge of child development helps parents respect the child as an individual somewhat prone to making mistakes, and helps parents understand their children’s feelings and motivations. Misbehaviors often reflect a tired or ill child, a child in need of parental attention, or a child who does not know (or has forgotten) what is expected. If one must punish a child, a non-violent strategy such as time out should be used together with explanation of why the behavior was inappropriate and opportunity for reparation. Hitting children never helps.