International No Smacking Day - Choose to Hug Not Hit: 2006

2006 Patmalar Ambikapathy: Chair of EPOCH( Tasmania) End Physical Punishment of Children

“International No Smacking Day –Choose to Hug Not Hit”is held each year on the 30th April to highlight and disseminate information about peaceful child rearing and conflict resolution in homes. We start from the policy statement that has been made by the Tasmanian Department of Health and Human Services in 2003, that child rearing need not involve the hitting of children. Most people accept the obvious premise that parents care about the wellbeing of their children and that most do their best to bring them up in the best way they know how. Parents know that children need to learn what is right and wrong in the home and in the world, and it is also the intent of parents that their children grow up with rules that inculcate self discipline. They would like to see their children grow up to lead positive lives to achieve their full potential, and in the process not cause harm or injury to themselves or others. So it makes sense not to harm and injure children whilst they are at home, or otherwise, we will be the first teachers of such behaviour to our children, by our example to them. The reality for society is that the loving, unpaid job of parenting is the one of the most important and onerous jobs or duties that anyone can be involved in, and yet the significance of good parenting has been largely undervalued by many of us. There has been a historical lack of up to date information, support and services that seek to prevent the abuse and neglect of children and “International No Smacking Day –Choose to Hug Not Hit”is designed to address this gap and provide support to parents who need advice, and an affirmation of those parents who are already committed to the peaceful rearing of children that does not involve hitting them.

Research has now shown that assisting good parenting that prevents child abuse and neglect, is important not just for children but for society too. I hope today to demonstrate to you how valuable the job of parenting is for society, and how we all need to support it, so that there is less stress in homes that can cause violent interaction between adults and children. I suggest that the benefits of peaceful resolution of conflict in homes will be felt by parents, children and society. The Mission Australia Youth Report of 2005 with respect to Tasmania, has produced results of a survey carried out, that indicate that a significant number of young people are concerned about physical abuse, and they cite stress and suicide as a major issue for them. On the other hand, it is of comfort to know that in Tasmania since the Law Reform Institute Discussion Paper in 2002 (that I commissioned when I was Tasmania’s first Children’s Commissioner), and their Final Report in 2003, there have already been many important shifts in thinking on the issue of physical punishment of children. This shift started all the way from the then Minister of Health and Human Services to his Department. Both have reviewed their past position on the acceptance of physical punishment of children, and are now unequivocal about stating that such child rearing practices are not necessary. Indeed the Division of Children and Families in the same Department, have commenced buying services for parenting programs from the community, that teach parents how to parent an discipline, without hitting their children ( the “Triple P Program”). This initiative started with Centacare Tasmania employing the first “Triple P”teacher in Tasmania, Sheila Banks (our first Convenor of EPOCH Tasmania), to run a program in Hobart. This training program is being rolled out in many other regions of Tasmania now. The psychologist who devised this parenting program has had seen it rolled out in countries as diverse in culture as Hong Kong and England, so you can see why it has generated the interest it has had in Tasmania. We can be very proud that in Tasmania, this initiative is being driven initially by principled and progressive community organizations like Centacare, and now by government and visionary individuals who deserve our great support.

This is an excellent start to necessary law reform, as New Zealand, our neighbour, have committed themselves to law reform and have already started to roll out programs as a spearhead to such change in the law. This is the other objective of EPOCH Tasmania, encouraging people to think positively about law reform that will give children equal protection of the law that adults have, from violence in the homes. We can take comfort from the fact that, law reform in countries that have achieved this change in the law, like some Scandinavian countries, have reaped results that must compel us to rethink our own common perceptions about child rearing that causes the emotional abuse of children. It is good to know that Denmark where a young prince is being reared by a Tasmanian mother, changed the law that allowed smacking, decades ago. Surely what is good enough for that little man is good enough for all our children! In Sweden for instance, since 1970, here has been a fall in juvenile crime (especially in narcotics related crime and theft), child deaths, youth suicide, children taken into care. We would agree that these outcomes that reflect increased public safety and public health are of benefit to the entire community. (J Durant (2000) A generation Without Smacking. Impact of Sweden’s ban on Physical Punishment: Save the Children Fund Publication:  http://www.savethehildren.com .

I suggest that a change in the law will bring about a greater understanding of and a respect for children’s vulnerability and cause a change in society’s values about the true nature of aggression against children. This understanding and insight will change attitudes to methods of childhood discipline and reduce violence against children at home. I also suggest that when we travel on this path of law reform to ban the physical punishment of children, we will create a climate where there will be a clear message from society that parenting needs to be in an environment that is safe and free from any violence between members of a family. In the second part of this paper, I hope to take you on a journey from my heart and mind to yours, to convince you that such violence against children (which we all agree is unacceptable), needs preventative measures that necessitate law reform. This is but one of the steps we need to take to achieve less violence in homes against children, but it is an important and symbolic step to take as it will generate a powerful chain reaction in not only our behaviour towards children, but in our children’s attitudes about the acceptability of such violence in the home and in the community.

The newly elected government and the new Minister for Education David Bartlett has stated that he takes a very serious view about bullying in schools, not just between children but also between adults. This change can only benefit children and I will show you how in this second part. This is a very welcome initiative as how can children learn that bullying is not acceptable when they are in an environment where adults indulge in such unacceptable conduct. The Minister is to be congratulated for his principled stand and this is the example of political leadership to right entrenched wrongs that I would like to see permeate all agencies in Tasmania. The other policy position that must be noted as it augurs well for very little children is that the government was elected on a platform to give every child in Tasmania a good start, the best I hope that they can have. Making the home a safer place for children, by promoting alternatives to hitting them is a very logical extension of this policy and is in fact in harmony with it. This is a welcome shift in policy and one that has the potential to boost our child safety record in this state. I wish Lara Giddings the new minister for Health and Human Services all those who implement this policy the very best, and trust that the initiatives they have started will continue. We have such a small population and so few children on which to plan for our future in this state, so it makes sense from every angle, ethical, economic and social to make their development safety and wellbeing an important agenda for this new government.

Disclaimer: These are my views and do not bind EPOCH Tasmania Part 11: Children’s right to be protected from violence I have deliberately separated these two sections out, as promoting alternative methods of discipline that do not involve violence against children, is not the same as law reform. It is action that we choose to take now, before law reform, to support parents and reassure parents and the community that help is available. These initiatives are there to actually assist parents now to help them change any negative parenting practices they may have. For those who are not convinced we seek to encourage and persuade them to take an alternative view of how we can discipline children. All of us have a role here in the work we do now, to disseminate this important information.

Changing the law so that we outlaw this practice by repealing an archaic defence that is embodied in our criminal code is another step that we can take. This has to necessarily come after these activities, as in a democracy we prefer to govern with consensus, but must also be prepared with strong leadership to lead the community along better practice pathways in parenting that will give children greater protection in the law than they now have.

United Nations Convention on the Rights of the Child It would be appropriate to start with the United Nations Convention on the Rights of the Child (the Convention) as Tasmania is now contemplating human rights legislation. However, even before this legislation comes into being this Convention was accepted as the basis for earlier law reform for children, young people and their families in legislation known as the Children Young Persons &their Families Act 1997 and the Youth Justice Act 1997. The Convention, referred to by the Joint Parliamentary Committee in Tasmania, has confirmed that all children are the holders of intrinsic and inalienable human rights in equality with other members of the human family. The Convention states that they have a right to be safe and nurtured within their families, protected from all forms of harm and also have a right not be subjected to any form of discrimination or abuse in the home or anywhere else. As far as physical punishment is concerned, articles 19 and 37 of the Convention specifically set out the rights of children to be protected from such violence.

The Convention is also an expression of international law that we have agreed should be applicable to our country and the Joint Parliamentary Committee in their report of 1996 affirmed such rights. The above legislation accepting the principles of the Convention, was passed in 1997. As such we are honour bound to pass legislation to outlaw the smacking of children that is allowed as a defence to parents in our Criminal Code and in the Common Law. Australia signed this Convention in 1990 and Tasmania affirmed it in legislation in 1997, and over 15 years later federally and 10 years later in this state, may I respectfully suggest law reform is long overdue. Allow me to quote Article 19 of the Convention that states:

“1. States Parties shall take all appropriate legislative, administrative, social and educational measures to protect the child from all forms of physical or mental violence, injury or abuse, neglect or negligent treatment, maltreatment or exploitation including sexual abuse while in the care of parent(s), legal guardian(s) or any other person who has the care of the child.

“2. Such protective measures should , as appropriate , include effective procedures for the establishment of social programmes to provide necessary support for the child and for those who have the care of the child, as well as for other forms of prevention and for identification, reporting, referral, investigation, treatment and follow-up of instances of child maltreatment described heretofore, and, as appropriate, for judicial intervention.”

In addition Article 37 (a) states that: “No child shall be subjected to torture or other cruel, inhuman or degrading treatment or punishment.”

The United Nations Committee on the Convention on the Rights of the Child in Geneva notes that the rights to safety that children have, are being compromised by a delay in repealing all laws that allow parents a defence to the hitting of children. I would like to most respectfully suggest that preserving such a law, is not an example of good international citizenship as this law excuses parents from the crime of assault when they hit and harm their children. We inherited this English common law doctrine which is reflected in our Criminal Code and only law reform can change this law that undermines the safety of children.

We have had enough time to think about what the right thing to do is, and the Division of Children and Families have embarked on a parental learning program. The Department of Health and Human Services’change in policy about the acceptability of such violence in child rearing, has also been achieved in response to the Law Reform Report. These necessary policy steps before such law reform have already been taken, so we should venture down this path with much more confidence now that ever before in the history of this state. The new Labor government that won the recent elections had a clear majority for its policies, and one was to give children the best possible start. Can anyone argue that a childhood free from being hit is not a good start for every child in this state? As the government has this mandate, I suggest that as a first step, it simply repeals section 50 of the Criminal Code that allows parents this defence. Those who oppose a full law reform, cannot object to this as the Common Law defence of lawful chastisement will still exist. A simple repeal ( as the repeal to the same defence that teachers once had), will be cost free and have no impact on the budget, and can be done easily as the government has the majority in Parliament.

The present law on “domestic discipline”in Tasmania In Tasmania our Criminal Code uses the words “domestic discipline”and “correction”in section 50 and there s an inherent acceptance that if force is used against children it can be ‘reasonable’if it is used for ’correction’. The law gives no guidance on what type of ‘force’is ‘reasonable’, so there is a wide range of physically punitive measure taken against children that have variously been sought to be justified by parents who have harmed their children. Indeed many decisions in made in our courts of law have allowed extraordinarily harsh forms of discipline against children. This concept of reasonable force also begs the question why any force against a child can be considered reasonable. Surely it is much more reasonable for the law to protect children from the excesses of parental power over them and not permit the use force against children at all? Given their tender age, vulnerability to being damaged, and lack of adult maturity about moral wrong doing, should our role and the role of the law be instead, to protect them from any form of violence? What can we do about this law that fails to properly protect children in homes? We can look at repealing it, and when I was Children’s Commissioner in Tasmania, I commissioned the Law Reform Institute of Tasmania to look at just that. They brought out an excellent discussion paper in November 2002, that I commend to you that argues the pros and cons of the issue. You can obtain on line at:  http://www.law.utas.edu.au/reform/Pubications/Physical%20Punishment/Physicalpunishment.pdf .

The need for criminal law reform to remove excuses for violence against children Those who seek to preserve the status quo in the law, seek to rely on an anachronistic and obsolete law that is no longer sanctioned for other adult members in the family home. Family violence legislation in 2004 sent a strong message to the community that physical assault between adults will be severely dealt with. This has had strong opposition, but the government passed this legislation that is now common place in America where most states have a pro arrest policy. Victoria was also looking at such law reform and now has it, as from July 2005, so were ahead of them. However, in Tasmania, the courts have allowed parents a defence to the common law assault of children, in circumstances that amount to various degrees of unacceptable harm and very serious injury to children. With this law, parents do not know how far they can go, and many have differing opinions on what is reasonable. What may be considered as acceptable hitting, is entirely subjective in the mind of adults and particular families, and any consideration of what type of ‘smacking’is lawful or unlawful is also difficult ‘in the heat of the moment’. As such, this test is inherently dangerous as parents may unwittingly harm their children using what they believe is reasonable force, commit a crime and yet, the law as it now stands, can excuse them of this crime.

Judging from decisions in the courts of Tasmania, even courts and the police have difficulties with the test of what is reasonable. This wide and systematic uncertainty in the law and a tolerance and acceptance of assaults on children, is nothing less than a denial of children’s equal right to protection of the law that adults enjoy. These are matters of concern but of equally great concern is the notion that the harming of a child by an adult can be excused, by rationalising the force used as ‘reasonable’if it was for the purpose of ’correction’.

The assumption of reasonableness of violence against children in the law I respectfully suggest that, in the 21st century, in any discussion on the physical punishment of children it would be necessary to question the underlying assumption that we appear to have in the law, that the use of such punishment against children can be “reasonable”. I suggest that it is possible that the law evolved on the basis of beliefs that are no longer supported by research and the evolution of more humane values that we now espouse.

In the eighteenth century, capital punishment of children was considered reasonable, and in the nineteenth, the flogging and incarceration of child offenders with adults was considered reasonable. This we know to our shame happened in Port Arthur when we were a penal colony of a foreign state. We do not consider these punishments at all reasonable now, and even the Supreme Court of the United States of America has in March 2005 stated that the capital punishment of those who committed crimes as juveniles is no longer acceptable. This ruling overturned years of misguided belief that such punishment was reasonable.

In addition, legislation could have been based on several societal assumptions about such harsh adult conduct, for instance that:

force amounting to physical punishment did a child no harm;
Such force was of benefit to a child;
physical punishment was necessary for the child’s “own good“.

However, with the evidence we now have, we know better, in that even if force does not cause physical harm it can cause emotional injury that we may not be able to detect or which may not be apparent until much later in a child‘s life.

I suggest that in the 21st century we can no longer accept that such harm caused by physical punishment is “reasonable”. Medical, psychological and criminological research (that I will refer to later), published by Margaret McCain and Fraser Mustard, in Canada, David Olds in America and David Farrington in Cambridge England, provide conclusive evidence that such negative and abusive forms of child rearing impact adversely on a child’s future life, and have adverse consequences for society too.

Only parents in Tasmania, are exempt from complying with established research and evidence based best practice guidelines. They are the only adults that the law seeks to protect when they harm children, and I respectfully suggest that we have to question this societal as well as this legal assumption.

Recent legal changes to the assumption of reasonableness Advances in our thinking as a society can be demonstrated by the removal of this defence for teachers in Tasmania. The removal of this defence overturned decades of belief and acceptance that the common law defence of ‘reasonable chastisement’of children by teachers, was appropriate. It was only in 1999 that we withdrew this defence for teachers, presumably because we as a society believed that such an abusive and coercive method of teaching was unreasonable.

Paradoxically, the law still preserves this defence for parents who are a child’s first teachers in the home. In my view the discharge of this function of parents as teachers, requires the utmost good faith from us. The use of reasonable force that harms a child either physically or emotionally, is hardly an action taken in good faith.

We now also know that children are harmed when they witness violence between their parents, so we no longer find it acceptable to subject them to such interaction. Our expectation now is that it is no longer reasonable for parents to expose children to such abusive interpersonal conduct. I have quoted a list of research papers in a Report I presented to the former Minister of Health and Human Services in Tasmania in 2002 on the harm caused to children by witnessing violence between carers, and that list is now available on the Children’s Commissioner’s website at : www.childcomm.tas.gov.au under “Papers and Reports”and this Report is titled “Services for Children Accompanying Parents who are Victims of Violence”(June 2002).

In Tasmania in December 2004, proactive legislation was passed to deal with violence between partners, and under this new law, there are greater penalties if children witness such violence. However, this law is not applicable to violence against children, so we are only going part of the way in protecting children with this new law. The view of my Children’s Council when I was Children’s Commissioner, was that violence against children needed to be considered as “domestic violence”as well, and I agree with this. I am sure children beaten anywhere in the world and their peers would support this view, but adults who have the power to pass laws for children appear not to accept the simple logic of this obvious truth.

The test of reasonableness in the use of violence against children Can It can be argued that the legal requirement that the force used on children be ‘reasonable‘, was made to protect parents and not children? I think not, as there is an alternative to this view in that it can be argued that the word “reasonable”was used, because legislators did not wish to see force that was ‘unreasonable‘, and which could harm children, be used to excuse adult behaviour. Yet, the way the courts, the police and social workers etc conduct this test at present in Tasmania, seems to indicate that it is generally parents that are protected and not children. The test of “reasonableness”is of concern as:

1. The test is always after the injury or harm has been inflicted on the child;

2. The perception of reasonableness is that of the parents, social workers, police and the courts, all of whom are adults;

3. No regard is had of what the injured child’s perception of reasonableness is.

4. It ignores the requirement of Article 3 of the Convention that states we need to act in the best interests of the child.

5. Article 12 of the Convention is ignored although it states we must: ... assure to the child who is capable of forming his or her own views the right to express those views freely in all matters affecting the child, the views of the child being given due weight in accordance with the age and maturity of the child Let us look at some of the views of children in Tasmania on this important issue.

Children’s view of the reasonableness of violence against them by adults Given the way the law is implemented in Tasmania, a repeal of this defence is essential as a prerequisite to the protection of children more effectively in the law. We need to ensure that no one is be able to shield behind the abuse of children in the name of “reasonable”“force”for the purpose of “domestic discipline”or “correction”under our Criminal Code.

14 year old girl Beating “because of one’s anger and frustration should be banned as it is teaching a child that physical discipline in an aggressive way is acceptable”

10 year old girl Beating “might teach the child that hitting is a way to get people to do things”

These are just two of the views I received and in the main, although children were forgiving of parents who hit them, they preferred not to be hit. This mirrors the situation of many spouses who suffer assault at home, and yet we do not use this as a reason for not having laws that outlaw such violence between adults.

Parents rights In any campaign for law reform in this area, there is a temptation for some to avoid addressing the evidence and research findings, and instead limit the discussion to a debate between children’s rights and parent’s rights. There is an alternative view expressed in the Tasmanian Law Reform Institute discussion paper at page 37, where there was a reference to a publication by the Office of Law Reform in Northern Ireland dated September 2001, called “Physical punishment in the home-thinking about the issues , looking at the evidence”that stated at page 9 that:

“Parents’rights exist to be exercised for their children’s benefit while the children are learning and growing to maturity”

This view of parents rights from Northern Ireland, where Judeo Christian values are entrenched, emphasises the responsibility that parents have to children, to instruct them in a manner that benefits them instead of harming them.

In addition a major impediment to law reform is a widely held misapprehension, that the law gives parents a ‘right’to hit children, and as such any law reform in this area is an interference with this perceived parental ‘right’to hit children. However, the common law that both our countries have inherited, does not grant parents a ‘right’to hit children, and they have never had this ‘right’. Such a ‘right’is in contradiction of the common law of assault that forbids the hitting or even the threatening of anyone that causes them fear that they will be hit.

It has always been illegal to hit anyone, and all that parents have had, is simply a mere defence to the crime of assault. The defence that parents now have, that some see as a ‘right’, has been drafted in a way that allows parents to go beyond small smacks to big smacks and then where does that stop? Sometimes children are gravely hurt or even lose their lives with smacks. This requires us to extend the boundaries of this debate beyond the narrow perspective of parents rights, as there is an alternative argument based on the concept of the best interest of the child that is more persuasive. Let us take a look at that alternative concept in the civil law.

Best interests of the child Law reforms in the 20th century in family and child welfare law now require us to focus on what is in the best interest of the child, rather than on what rights parents have. It also requires us to interpret what is meant as ‘parental rights’in a more restricted way than we did before. Gillicks Case in the English House of Lords, as far back as twenty years ago, is authority for the proposition that whilst a number of decisions relating to children are normally left to the parents, this is not an absolute right exercisable at their unfettered discretion. This right must be exercised in the interests of the child, and this echoes the Northern Ireland view, that it must be exercised for the benefit of the child. I suggest that inadvertently or deliberately causing physical and emotional injury to a child for the purpose of “correction”or ‘discipline”is not in that child’s interest or benefit.

These views expressed in England and Northern Ireland are also consistent with our rejection of the old “Roman law”notion, that children are ‘chattels’over whom their father had the power of life or death. We all agree that this is a repugnant proposition now.

Rights over a child vs Best Interests of the child I suggest that our discussion on law reform, should not be based on an assumption that promoting the right of children to be safe from violence means taking away ‘rights’ parents have. It should not be seen as a debate between parents rights versus the rights of children but be seen in the context of what is in the best interests of the child, based on established findings and research evidence. Given the changes we have seen in legislation in the twentieth century, it would be simplistic to maintain an adversarial position, or to ignore the new knowledge we have gained in child development.

In addition, we cannot suggest without any evidence, that the sole purpose of section 50 of the criminal code In Tasmania is to preserve and confirm the ‘right’of parents to use physical force to correct children. Before we make this assumption, we need to assess the possible reasons why Parliament gave parents this defence that excuses them when they assault children. It may be that given the norms and values of the early twentieth century, parents and legislators believed in good faith that, children needed to be disciplined and corrected using ‘reasonable’physical ‘force’even if it causes pain or injury. It is conceivable that this is the rationale behind why such a defence was created, and not because it gave parents rights over their children’s bodies. There is no reason why we cannot revisit this rationale now in a thoughtful and measured manner, and not in an instinctive reaction based on fears that such a change can negatively impact on us as adults.

It is only “smacking”and this is not child abuse How often have we heard this rationalization about the hitting of children, and the statement that it is “only a smack”? Some may consider that a smack is not child abuse, but abuse always starts with a smack. In any event, any hitting or smacking of a child is an assault at law now, and more importantly it is an abuse of power by bigger more powerful people against those who are smaller, weaker and the most vulnerable in the community. How can we sanction the hitting of children and yet have an outcry ( as there was recently), when there was elder abuse exposed in some nursing homes? Both these members of our community are vulnerable and assaults against either are unacceptable. No one would say small smacks of elder citizens are acceptable or not a form of emotional abuse at the very least.

Why is this double standard, sometimes espoused by those who are older and may have been reared on smacks? Why are we older people surprised and horrified when smacks are dispensed against elders by those who now care for them in our old age? Are we frightened it may happen to us? Well it most unfortunately can if we have reared those dispensers of abuse against elders, with smacks in their childhood. They may have learned the lessons that may have been taught at home, about how to control or contain behaviour by intimidation and smacks. I respectfully suggest that the ramifications of seeking to ethically condemn smacks against the elderly and condone smacks for children are questionable, and we really need to re think our attitudes and values on all forms of abuse.

Partial law reform to redefine the defence An alternative for law reform to ban physical punishment of children, is to define how children can and cannot be assaulted. There are some who may wish to take this lesser route of what is euphemistically called “clarifying”the law, but which in fact gives parents the option of hitting children in a manner that will be made acceptable in the law. Both England and New South Wales have sought to define what type of force exercised against children is legitimate, and this is in my respectful view, such a violation of children’s right to be safe from abuse. Telling parents how they can and cannot hit children beggars belief, as it seeks to legitimise some forms of assault on children. Yet, this is seen as a rational response to the need to protect children from excessive physical punishment!

We also need to ask, if we take this option, why we are protecting adults before we protect children? Are our needs as mature adult’s greater than theirs, and are we as helpless and as vulnerable as they are? No, if we go down this road, we are well and truly putting adults perspectives, perceptions and needs before that of children. I am in no doubt about that, and many in England too oppose their recent so called clarification of the law as to how parents can hit children. At the very least physical punishment is an ugly form of bullying inflicted by adults on children.

However, it is argued that this is a good option so that parents will know in what way they are allowed to hit children and I cannot agree with this, as not only is it unethical but it is also discriminatory. It will simply allow us to reframe what physical harm we can do to children and ignore the emotional harm we may be causing them. In October 2004, the Ombudsman in Tasmania had in her report on past abuse of children in care that :

“One of the strongest impressions to emerge from the Review was that physical and emotional abuse can cause damage and scar lives as much as sexual abuse. It was apparent from the interviews that sustained emotional abuse almost invariably accompanied physical and sexual abuse and may well have had the most long lasting effects”.

With this knowledge that is expressed at an official level, we can no longer maintain that any form of physical abuse of children is acceptable in any law reform proposed. Let me summarise other aspects of my opposition to this option:

-It sends an ambiguous message to parents that only severe, persistent harm is unacceptable and that anything less is not criminal or actionable;

-It will also pose difficulties for welfare authorities and police who investigate physical abuse as they will have to decide what is criminal and what is not.

-Lesser crimes against children will be minimised to a welfare and child protection issue outside the protection of the criminal law.

-If decisions are made by welfare authorities, that an action is not criminal, this allows them to prejudge whether to refer a criminal assault to police or not.

-It therefore denies police their jurisdiction and discretion on whether to take legal action or not;

-It pays no regard to scientific evidence of emotional harm and injury to children;

-It also pays no regard to the fact of permanent damage to the brain development of young children who are subjected to abusive physical punishment.

-We will leave it to social workers, police, lawyers and judges to come up with the answers as to what is abusive or not.

We need to have the courage to make this decision about what is abusive ourselves, and not leave it to the law. We need the courage to say that all physical punishment should be banned, on the basis that any assault on a child is unacceptable. It is my view that only a complete abolition of physical punishment will protect children from violence effectively. Educating and informing parents on what is or is not permitted under the law, and what parts of the body the force can be applied to etc. would hardly remove the present risk of injury and harm to children, and continue the present uncertainty about what type of hitting is lawful or unlawful. The perpetuation of ambiguity in the law is the problem with recent law reform in England and has been criticised on this basis.

In 2002 the Chief Justice of the Family Court of Australia the Honourable Alistair Nicholson stated in Tasmania, when he came to make the awards in the competition I ran for children’s views about banning physical discipline that:

“You can’t fortunately any more beat a woman, you can’t beat animals yet for some reason you can beat children. To me it seems very strange that it should be the only remaining defence available against a charge of assault... It is not smacking we’re directing this toward, what we’re primarily directing the attention at is that this defence is used as an excuse for abusing children and to me that’s not acceptable by a society. Everyone talks about the small smackers but the problem is that the defence is relied on by people who are delivering a lot more than tiny smacks- it is used to get out of quite serious charges...I think it’s better if you remove the defence altogether and then it’s always up to the prosecuting authorities as to whether the matter is serious or not. I’m concerned that under the system that’s operating now, prosecuting authorities are more reluctant to bring a proceeding against a parent when they’re met with this defence...” (The Examiner Newspaper September 2002 at Page 12)

Changing attitudes to children A prohibition of all types of physical punishment, is essential if we are to change attitudes about what is the abuse of children not only for parents but for all agencies that provide services to children. An unequivocal statement of the law that does not allow for any variations in the interpretation of the law would also have the benefit of avoiding the confusion and ambiguity that is apparent in all systems in Tasmania. This lack of clarity too could also be very demoralising for police, social workers, teachers, doctors and all those who are expected and are mandated to report abuse, and take action to protect children. Any qualifications in the law that excuse conduct that causes harm to a child, offers children little protection in reality, and it has been expressly stated in England, that such reform is worse than no law reform.

I would also suggest that other information about reasons for the need for law reform need to be brought to the attention of the public. This must go hand in hand with the appropriate training of service providers, based on the following research evidence that has emerged. I will look at some of this information now that suggests the need for law reform but from a different perspective, based on child development research, public safety and public health concerns.

For more of this article you can download the attached pdf.

Patmalar Ambikapathy: Chair of EPOCH( Tasmania) End Physical Punishment of Children.