Ministers' Deputies / Rapporteur Groups
GR-H
Rapporteur Group on Human Rights

GR-H(2005)1 11 February 2005
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Europe-wide ban on corporal punishment of children –
Parliamentary Assembly Recommendation 1666 (2004)
Draft reply

Item to be considered by the GR-H at its meeting on 22 February 2005

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Background

1. The Parliamentary Assembly adopted Recommendation 1666 (2004): Europe-wide ban on corporal punishment of children on 23 June 2004.

2. At their 892nd meeting (item 3.1, 8 July 2004), the Ministers' Deputies decided to bring it to the attention of their Governments. They also decided to communicate it to the Steering Committee for Human Rights (CDDH, to the European Committee for Social Cohesion (CDCS) and relevant sub-committees and to the European Committee of Social Rights (ECSR) for information and possible comments by 30 November 2004. Furthermore, they decided to communicate it to the Steering Committee for Education (CD-ED) for information and possible comments by 25 October 2004. Finally, they invited their Rapporteur Group on Human Rights (GR-H) to prepare a draft reply for adoption at one of their forthcoming meetings.

3. The Secretariat has prepared the following draft reply to the Recommendation in the light of the opinions received. The Rapporteur Group on Human Rights is invited to examine it with a view to its subsequent submission to the Deputies.

Concerning the Recommendation

4. The Parliamentary Assembly notes that, according to the European Committee of Social Rights, in order to comply with the European Social Charter and the Revised European Social Charter, member states must ban all forms of corporal punishment and any other forms of degrading punishment or treatment of children. It further notes that the European Court of Human Rights has found in successive judgments that corporal punishment violates children's rights as guaranteed under the European Convention on Human Rights. These decisions apply to corporal punishment in young offenders' institutions, in schools and in the family. Moreover, the Court has emphasised that banning all corporal punishment does not breach the right to private or family life or religious freedom.

5. The Assembly observes that all member states have ratified the United Nations Convention on the Rights of the Child, which requires them to protect children from all forms of physical or mental violence by adults while in their care. The Committee on the Rights of the Child, which monitors compliance with the Convention, has consistently interpreted the latter as requiring member states both to prohibit all forms of corporal punishment of children and to educate and inform the public on the subject.

6. The Assembly welcomes the current global initiative to end all corporal punishment of children and wishes to add its support to that already given inter alia by Unicef, Unesco, the United Nations High Commissioner for Human Rights, the Commissioner for Human Rights of the Council of Europe and the European Network of Ombudsmen for Children (ENOC). It considers that any corporal punishment of children is in breach of their fundamental right to human dignity and physical integrity and that children have a fundamental right to the same legal protection as adults. The social and legal acceptance of corporal punishment of children must therefore be ended.

7. The Assembly is concerned to note that, so far, only a minority of the forty-five member states have formally prohibited corporal punishment in the family and in all other contexts, while they have all banned corporal punishment in schools. However, this does not necessarily extend to residential and all other forms of childcare. It therefore invites the Council of Europe's Committee of Ministers to launch a co-ordinated and concerted campaign in all the member states for the total abolition of corporal punishment of children. It calls on the Organisation to make Europe a corporal punishment-free zone for children.

8. The Assembly invites the Committee of Ministers and the other Council of Europe bodies concerned, as a matter of urgency, to establish strategies, including technical assistance, for achieving this objective in conjunction with member states, and in particular to:

i. heighten the awareness of children, those who live and work with them and the general public of the total ban on corporal punishment and other forms of humiliating, inhuman and degrading treatment of children;

ii. ensure general awareness of children's fundamental rights, in particular their right to human dignity and physical integrity;

iii. encourage positive, non-violent forms of child-rearing and conflict resolution among future and existing parents, all other people who care for children as well as the public at large;

iv. offer children and young people the opportunity to express their views and be involved in planning and implementing activities to eradicate corporal punishment;

v. make sure that parents, particularly those experiencing difficulties with child-rearing, are offered the necessary advice and support;

vi. offer children confidential advice, counselling and legal representation so that they can respond to violence against them;

vii. guarantee effective and appropriate protection to children who are particularly vulnerable to harmful and humiliating punishment, such as disabled children and children in institutions or detention facilities;

viii. ensure that corporal punishment and other harmful and humiliating forms of discipline inflicted on children are included in the definition of domestic or family violence and that strategies to combat the violent punishment of children form an integral part of strategies against domestic or family violence.

9. Finally, the Assembly invites the Committee of Ministers to recommend that the member states:

i. enact appropriate legislation prohibiting the corporal punishment of children, particularly within the family;

ii. monitor the effectiveness of abolition through regular research into children's experience of violence at home, in school and elsewhere, the effectiveness of child protection services and parents' experience of and attitudes to violence against children;

iii. ensure that the relevant judgments of the European Court of Human Rights and the conclusions of the European Committee of Social Rights are fully applied.

Draft Reply

10. The Committee of Ministers welcomes Parliamentary Assembly Recommendation 1666 (2004): Europe-wide ban on corporal punishment of children, which it has studied with interest and transmitted to the member states' governments. The European Committee for Social Cohesion (CDCS) and the Steering Committee for Education (CD-ED) have submitted opinions on the Recommendation, which are contained in Appendices I and II.

11. The Committee of Ministers wishes to underline the importance it attaches to this issue and its commitment to protect children, a group in need of special protection in society, from all forms of violence. It recalls its Recommendations No. R (85) 4 on violence in the family, R (90)2 on social measures concerning violence within the family, and R (93) 2 on the medico-social aspects of child abuse, which emphasise the general condemnation of corporal punishment and other forms of degrading treatment as a means of education.1

12. The present Polish Chairmanship to the Committee of Ministers has reflected these concerns in its Programme, recognising that much remains to be done in the sphere of children's rights and stating that Poland will contribute to a discussion on ways of ensuring the protection of children against all forms of violence.

13. The Committee of Ministers observes that in Council of Europe member states, taken as a whole, the population below the age of eighteen numbers around 155 million individuals. The UN Convention on the Rights of the Child has been ratified by all member states and they are all expected to develop national action plans to ensure its full implementation. Nevertheless, there is a gap between the standards set and their effective implementation. Civil society is actively endeavouring to reduce this gap, inter alia, making use of the collective complaints procedure under the European Social Charter. The Committee of Ministers considers that the complexity of the issues at stake calls for a comprehensive strategy to coordinate the efforts of all key actors and to mobilise resources.

14. Consequently, the Committee of Ministers shares the view of the Parliamentary Assembly as to the need to begin, in all member states, a coordinated and concerted campaign for the abolition inter alia of corporal punishment inflicted on children. For this reason it has recently approved a transversal three year programme of action on "Children and violence" that will pursue three objectives, which are to (1) assist member states in implementing international standards at national and local levels, in particular the United Nations Convention on the Rights of the Child, the European Social Charter and the European Convention on the Exercise of Children's Rights; (2) by 2007, to propose a coherent and comprehensive set of instruments and methodological guidelines covering all aspects of the question as well as to (3) improve the visibility and the impact of Council of Europe's work in the field. As rightly underlined by the Assembly, both the UN Convention and the European Social Charter, aim to protect children against all forms of violence.

15. The above-mentioned programme will focus on three priority fields, which are: (1) the identification of strategies and measures aiming at the integration of the “children and violence” dimension in the policies related to social exclusion, children in institutional care, education and media, abandoned, displaced and stateless children, family, in particular effective parenting and urban life and intercommunity relations; (2) promotion of children's rights in general, notably within education systems, youth movements, social work and judicial proceedings and (3) effective legal protection of children against all forms of violence. The programme will thus, as requested in the Assembly's Recommendation, heighten the awareness of children, those who live and work with them and the general public inter alia on the need to protect children from all forms of violence, including corporal punishment. It will also ensure general awareness of children's fundamental rights, in particular their right to human dignity and physical integrity (paragraph 8 (i-ii, vii-viii)).

16. The three-year Integrated Project on "Responses to Violence in Everyday Life in a Democratic Society", that was concluded at the end of 2004, resulted in twelve general principles for use in formulating national policies on preventing violence in everyday life. These principles constitute guidelines that will be taken as background orientations within the programme on Children and violence.

17. The Committee of Ministers is pleased to be able to inform the Assembly that the programme will co-ordinate with external partners, international governmental and non governmental organisations, and that particular attention will be paid to the need to involve children. It agrees with the Assembly that children and young people should be given the opportunity to express their views and be involved in planning and implementing activities to eradicate corporal punishment also at the national level (paragraph 8 (iv)).

18. The need to encourage positive, non-violent forms of child-rearing and conflict resolution referred to by the Assembly, cannot be underestimated, nor can the importance of offering advice and support to parents experiencing difficulties with child-rearing (paragraph 8 (iii and v)). The Committee of Ministers has previously noted that children's rights are mostly infringed by persons who are supposed to be caring for them and who hold authority over them. It therefore welcomes the recommendations made by the Parliamentary Assembly in this respect.

19. As the European Committee for Social Cohesion (CDCS) points out in its opinion it will take account of the Assembly's concerns in its activities in this field. A report prepared within the Forum for Children and Families on: “Protecting children against corporal punishment – awareness-raising campaigns”, has just been issued, and another report on “Eliminating Corporal Punishment: a human rights imperative for Europe's children” is to be issued soon. At the end of 2004, it launched a new project that is directly related to the issue in question, namely “Supporting parenting in the best interests of the child”. Within this framework the possibility of drawing up guidelines for peaceful parenting without the use of physical force, will be considered. A working party on parental skills, especially for preventing and combating violence affecting children, was set up in January 2005 inter alia for this purpose.

20. It should also be recalled that in the framework of the 2005 European Year of Citizenship through Education, specific attention is being given to the promotion of the Charter for democratic schools without violence of the Council of Europe, which is a tool that children can use themselves for asserting their rights in a very practical way.

21. Like the Parliamentary Assembly, the Committee of Ministers considers that it is of crucial importance that children who have been exposed to violence be offered confidential advice, counselling and legal representation so that they can respond to violence against them (paragraph 8 (iv)). It has recently approved Specific terms of reference for a Group of Specialists on Assistance to Victims and Prevention of Victimisation (PC-S-AV), which will update Recommendation No. R (87) 21 on assistance to victims and the prevention of victimisation. It has already asked the Group of Specialists to consider inter alia the problem of repeat victimisation, especially in connection with domestic violence, trafficking and property offences. It will instruct the Group to consider the particular situation of children that are victims of violence.

22. The Committee of Ministers underlines the important role that non-governmental institutions can play particularly in providing confidential advice and counselling. The question of legal representation is usually brought up after the child has received advice and counselling, if a criminal procedure is starting. The Committee of Ministers agrees with the Assembly that it is important that legal aid and advice is free of charge for the child. In this respect it refers to the European Convention on the Exercise of Children's Rights (CETS No.: 160).

23. With respect to the Assembly's invitation to the Committee of Ministers to recommend member states to enact appropriate legislation prohibiting corporal punishment of children, particularly within the family (paragraph 9 (i)), it recalls that Article 17 of the European Social Charter, according to the case-law of the European Committee of Social Rights, requires a prohibition in legislation against any forms of violence against children.2 The Committee of Ministers also wishes to underline the importance of appropriate legislation in this field, although the ban on violence against children, including corporal punishment, may well be concluded in the general criminal provisions covering assault and battery. It again wishes to stress the importance of information campaigns raising awareness about children's rights in this respect.

24. The Committee of Ministers supports the Assembly in its call for member states to conduct regular research into children's experience of violence at home, in school and elsewhere, the effectiveness of child protection services and parents' experience of and attitudes to violence against children (paragraph 9 (ii)).

25. As regards its role in supervising the implementation of the judgments of the European Court of Human Rights and the conclusions and decisions of the European Committee of Social Rights, the Committee of Ministers stresses that it considers this to be one of its most important tasks to which it pays the utmost attention (paragraph 9 (iii)).

26. Finally, the Committee of Ministers wishes to inform the Parliamentary Assembly that it recently held an exchange of views with Professor Pinheiro, Independent expert appointed by the UN Secretary General to lead the UN Secretary General's Study on Violence against Children. He has been entrusted with the task of providing ”an in-depth global picture of violence against children and propose clear recommendations for the implementation and improvement of legislation, policy and programmes relating to the prevention of and responses to violence against children.” The Council of Europe has been invited by UNICEF to collaborate for the organisation of the regional consultation for Europe and Central Asia and the government of Slovenia has agreed to host the consultation, which will take place in Ljubljana on 5-7 July 2005. The Council of Europe will therefore play a key role in the organisation of the regional consultation and will have an important impact on the UN Study.

Appendix I

Opinion of the European Committee for Social Cohesion (CDCS) on Parliamentary Assembly Recommendation 1666 (2004) on a Europe-wide ban on corporal punishment of children
(adopted at the CDCS 13th meeting on 2-3 November 2004)

1. The European Committee for Social Cohesion (CDCS) has closely examined Parliamentary Assembly Recommendation 1666 (2004) on a Europe-wide ban on corporal punishment of children. Through its Strategy for Social Cohesion, in particular the revised version of March 2004, the committee continues to assert its commitment to protecting children and ensuring that all children develop to their full potential.

2. Its subordinate committee, the Forum for Children and Families, held a symposium in November 2002, with contributions from children, on the corporal punishment that all too many children suffer throughout Europe. The issue of corporal punishment remains sensitive and divides not only teachers, guardians and parents, but also lawmakers. This is precisely the point that the Assembly brings to the Committee of Ministers' attention.

3. Within its field of responsibility, the European Committee for Social Cohesion regards children as fully fledged human beings with individual rights enshrined in numerous international and national texts. The CDCS refers in particular to the European Social Charter and the Revised Social Charter, essential instruments in the field of social rights, from which ensues the obligation to protect children against ill-treatment, including corporal punishment. It hopes that States parties will fully observe their commitments in this respect.

4. The Committee supports the idea of children enjoying equal protection before the law. While therefore recognising the human rights dimension of the issue, the CDCS wishes to underline that the image of children and their status are constantly evolving in all areas of life and that, since the adoption of the United Nations Convention on the Rights of the Child in particular, the overall trend has been towards greater respect, protection and attention for children.

5. The CDCS understands that the Assembly recommendation is motivated by internationally recognised concerns about the defence of children's fundamental rights. In the private sphere of bringing up children, however, it believes that the Council of Europe's role should primarily be to help raise awareness of the issue and draw up recommendations and guidelines on positive forms of child rearing.

6. Having opted for this approach, the CDCS makes sure that the texts drawn up under its auspices include the recommendation that children's human dignity should be respected and they should be brought up without the use of corporal punishment. The CDCS is also intending shortly to publish two relevant reports prepared within the Forum for Children and Families following its debate of November 2002: one on awareness-raising campaigns, “Protecting children against corporal punishment – awareness-raising campaigns”, and the other on progress towards the abolition of corporal punishment in Europe, “Eliminating Corporal Punishment: a human rights imperative for Europe's children”.

7. In addition, the CDCS will be launching a new project by the end of 2004 that is directly related to the issue in question, namely “Supporting parenting in the best interests of the child”. If the Committee of Experts on Children and Families (CS-EF) deems this to be a priority, it will be possible under the project to draw up guidelines for peaceful parenting without the use of physical force.

8. The CDCS therefore welcomes the recommendations made by the Parliamentary Assembly in point 8 of Recommendation 1666. It believes that the issues of bringing up children are crucially important and should occupy a key place in the inter-sectoral project on Children and Violence beginning in 2005. The CDCS will make sure that the activities in its field take account of the Assembly's concerns.

Appendix II

Opinion of the Steering Committee for Education on Parliamentary Assembly Recommendation 1666 (2004) on a Europe-wide ban on corporal punishment of children

The Steering Committee for Education:

1. Having taken note with great interest of Parliamentary Assembly Recommendation 1666 (2004) on a Europe-wide ban on corporal punishment of children;

2. Considers the subject of the recommendation to be highly relevant, particularly paragraphs 1 to 6;

3. Welcomes Parliamentary Assembly Recommendation 1666 (2004) on a Europe-wide ban on corporal punishment of children, which fits in with the general philosophy of the work of the Steering Committee for Education;

4. Subscribes, where all the recitals are concerned, to this draft recommendation and points out that it is in conformity with the national legislation in force in a number of member states;

5. Shares the view of the Parliamentary Assembly as to the need to begin, in all member states, a coordinated and concerted campaign for the abolition of all corporal punishment inflicted on children;

6. Nevertheless draws attention to the importance of a precise definition of the "corporal punishment" covered by the recommendation, in order to avoid abuses thereof;

7. Would like it to be made clear to which category of penalty (administrative, criminal, etc) any teaching staff making use of such corporal punishment would be liable;

8. In respect, more particularly, of paragraph 4:

8.1 notes that the concern of the Parliamentary Assembly is akin to that expressed in the provisions of Article 3 of the UN Convention on the Rights of the Child;

8.2 nevertheless notes with regret that this Convention is not always applied;

9. Welcomes the idea of beginning a coordinated and concerted campaign in all member states to achieve the final abolition of corporal punishment of children;

10. Would like such information campaigns to be run in schools, educational associations and the NGOs which work in the education sector;

11. Calls for greater participation and involvement of parents in every stage of the process intended to eradicate such corporal punishment from schools.

Note 1 Appendix, point 14.
Note 2 Conclusions XV-2, Vol. 1, p. 29.


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