Consultation on the Children (Abolition of Defence of Reasonable Punishment) (Wales) Bill
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Tystiolaeth i’r Pwyllgor Plant, Pobl Ifanc ac Addysg ar gyfer craffu Cyfnod 1 Bil Plant (Diddymu Amddiffyniad Cosb Resymol) (Cymru) |
Evidence submitted to the Children, Young People and Education Committee for Stage 1 scrutiny of the Children (Abolition of Defence of Reasonable Punishment) (Wales) Bill |
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CADRP-384 |
CADRP-384 |
About you
Name: Anne McGillivray
Role: Professor of Law, University of Manitoba (retired)
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As Professor of Law, University of Manitoba, I dedicate much of my work to the rights of children and to child corporal punishment including its legal and social history, its deep violation of children's rights including the right to inviolability of the person (the right to live free of violence and in particular state-sanctioned violence) and its deleterious impact on the emotional, physical and developmental health of children. I participated in the first Canadian challenge to the Criminal Code defence of correction and I continue to advocate for repeal. I have ties with Wales through my father who was born and raised in Caerphilly. I would love to see Wales lead the way for the British Isles in abolishing this defence.
Child Corporal Punishment: Selected Titles
A. McGillivray, “Children’s Rights, Paternal Power and Fiduciary Duty: From Roman Law to the Supreme Court of Canada” 2012 (18) International Journal of Children’s Rights 21-54
A. McGillivray,“Nowhere to Stand: Correction by Force in the Supreme Court of Canada” in Sanjeev Anand, ed., Children and the Law: Essays in Honour of Professor Nicholas Bala. Irwin Law, 2012. Pp. 57-76
A. McGillivray,“Canada: The Rocky Road of Repeal” with Cheryl Milne in Anne Smith and Joan Durrant, eds., Realizing the rights of children: Global progress towards ending physical punishment. London: Routledge, 2011. Pp. 98-111
A. McGillivray,“Changing the child punishment law: Is Bill S-209 a backward step?” with Ron Ensom in Ontario Public Health Association Bulletin May 2009. Invited op-ed, republished in Saskatchewan Trial Lawyers Association, Saskatchewan Advocate, September 2009 and in Alberta Civil Trial Lawyers Association, Child Welfare Litigation Group, October 2009
A. McGillivray,Report to the Senate Standing Committee on Legal and Constitutional Affairs, Section 43 of the Criminal Code, Ottawa, 5 June 2008
A. McGillivray,“Child Corporal Punishment: Violence, Law and Rights” (with Joan Durrant) in Ramona Alaggia and Cathy Vine, eds., Cruel but not Unusual: Violence in Canadian Families. Wilfrid Laurier University Press, 2006. Pp. 177-200
A. McGillivray, “Child Physical Assault: Law, Equality and Intervention” 2004 (30) Manitoba Law Journal 133-166
A. McGillivray, A Preliminary Report on Corporal Punishment with Respect to Indian Residential Schools in Canada, July 2003
A. McGillivray,“‘He'll learn it on his body”: Disciplining Childhood in Canadian Law’ (1998) 5 International Journal of Children’s Rights 193-242
A. McGillivray,“R. v. K. (M.): Legitimating Brutality” (1993), 16 Criminal Reports (4th) 125-132
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I fully support the repeal of this antiquated and dangerous defence. Public opinion and parental disciplinary techniques have for the most part changed. The law must also change. Research shows a deep decline in support for hitting children over the past two decades. The dissonance between how we now think about children and their rights, and the law permitting child corporal punishment inherited or resurrected from long-dead notions of paternal power, is rapidly increasing. This has a chilling effect on policy developments meant to protect children from violence, it confuses police response to domestic violence, and it leaves social workers in high confusion about what to tell parents. The corporal punishment defence gives dangerously mixed messages about good parenting. A huge and impressively careful body of research shows convincingly that corporal punishment, however light, places children at high levels of risk of self-harm including depression and addiction and of antisocial behavior including violence toward other children, emotional and neurological injury, learning problems and violence toward spouse and children in future relationships. The science is clear on the harm done by even 'mild' punishment. And mildness is of course in the eye of the beholder. Despite much discussion with professional colleagues about finding some middle way or compromise, I cannot find one and I am very sure there isn't one. Repeal this law.
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People worry about intrusive policing and criminalizing otherwise decent parents. There is and always will be space in the justice system for the enlightened use of discretion by police, prosecution and the judiciary. Defences for assault are myriad and cover any situation in which the assault of an adult or child may be necessary including the protection of others and the protection of property. What can't happen is assault after the fact, which is corporal punishment. It has been abolished as punishment for crimes, as prison and reformatory discipline, as shipboard discipline, and (for the most part) as school discipline. It has no place in the family. Given the discretion exercised by the justice sysem, the 'wholesale criminalization' of parents is is a red herring.
People also worry about the reaction of those whose religious beliefs or training supports child assault. While freedom of thought, conscience and belief is a fundamental human right, all rights stop short at the violation of the rights of others. Children have the clear right at international law to not be subjected to violence. Corporal punishment however light is violence. No right of mine can justify my violation of a right of yours. The hyper- protection given to religious belief in state law is highly problematic and is not consistent with the international obligations of states.
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The Bill is a very good thing, a move in the right direction, consistent with contemporary knowledge and understanding of childhood as a time of swift and subtle neurological and social development. Children's rights is no more than a simple acknowledgment of the facts of childhood and the needs of children. Corporal punishment laws are an extreme violation of children's rights and the nature of childhood. Wales is doing a very good thing.