Council of Europe

The legal framework

by Peter Newell
Global Initiative to End All Corporal Punishment of Children

So – the legal framework for prohibiting and eliminating all violence against children in 15 minutes!

A clear and complete legal framework is fundamental, but not of course sufficient: law needs to be linked to educational and other measures. Without clear and explicit national law prohibiting all violence, all other measures will be undermined and ineffective.

All states have an immediate human rights obligation to protect all children from all forms of violence in all settings. States’ obligations are to prevent all forms of violence, to respond to violence effectively when it occurs and to provide necessary treatment, rehabilitation and compensation to child victims. There must be real remedies when protection fails. States must also regularly monitor the extent of violence against children, in order to measure the effectiveness of protection and progress towards elimination of all violence. The very comprehensive draft Council of Europe guidelines underline this, providing necessary detail.

Respect for human dignity is the foundation of human rights, as is clear from the Universal Declaration and other core instruments. Human rights are universal, and the particular task of the United Nations Convention on the Rights of the Child (CRC) is to confirm that children too are holders of human rights: a very necessary task given the traditional low status of children as possessions, not people. It is this low status that makes children particularly vulnerable to violence.

The CRC is plainly the most comprehensive instrument for children. I’ve no time to go systematically through it, but if you do so article-by-article, it is clear that more or less all of it is relevant to achieving children’s right to protection – to ensuring effective prevention, response, remedies and monitoring. It’s very welcome that the Council of Europe’s human rights mechanisms – the European Court of Human Rights, the European Committee of Social Rights, the Committee on the Prevention of Torture – and of course this programme and the new platform – are applying the CRC.

In my short time, I’m going to raise some of the legal issues which have so far proved most difficult. All of them derive from the low status of children, resulting from adult reluctance to respect them as people and rights holders. And all demand clear and explicit domestic legislation.

First: the prohibition of all violence against children. You would think this was uncontroversial as well as long overdue – but if so you misjudge the capacity of adults for hypocrisy and double standards. Can you imagine an effective programme to challenge violence against women, or elderly people, being built in any state on laws which authorise violence disguised as domestic discipline? Every country has a criminal law on assault which protects adults from all forms of physical violence wherever we are, including in our homes, offices and at meetings like this.

But when it comes to children, the reality in many states remains totally different. Only in a minority of Council of Europe states do children share with adults equal legal protection from being hit and hurt deliberately.

Ancient laws are still alive and scarring millions of childhoods across Europe. No state can pretend it has an effective child protection system while its law still authorises violence. There is now a clear consensus across the international human rights treaty bodies that respect for human dignity requires the prohibition and elimination of all corporal punishment. While the European Court has not as yet produced a clear judgment asserting children’s right to equal protection, in A v UK it found the punishment of a young English boy breached Article 3, that the United Kingdom was responsible because of its law allowing “reasonable chastisement” and that children, as vulnerable individuals, require the state to provide “adequate protection” including “effective deterrence”. The execution of that 1998 judgment is still being supervised 10 years on by the Committee of Ministers. The United Kingdom has limited the scope of the defence but parents can still defend violence as “reasonable punishment” (and Scotland has introduced the transparent concept of “justifiable assault” of children). It will be a travesty of human rights if other states accept this in the supervision process, as providing adequate protection and effective deterrence of violations of Article 3. There are also decisions of the European Committee of Social Rights against some other member states, demanding clear prohibition, which are not being pursued adequately by the Committee of Ministers.

There are only a few states now whose law openly authorises violence, but there are others where the silence of the law is interpreted as allowing disciplinary violence. The Council is working courageously to achieve a Europe free of corporal punishment, as it achieved a Europe without the death penalty. Doing so demands rigorous application of human rights obligations by all the institutions – including the CM. It will confirm children’s justifiable cynicism about adults’ commitment to children’s rights if political pressure or apathy interfere with the supervision of judgments and decisions of fundamental importance to children.

Moving on, Article 12 of the CRC demands that states respect children’s right to express their views on all matters that affect them, to give those views “due weight” and to ensure children are heard in proceedings affecting them. The effective reflection of this right in national legislation includes ensuring:

• that it is respected by all those involved in decision-making in individual cases, including in all examinations and interventions (and to give credit where it is due, my country has an excellent explicit provision implementing this);

• that it is respected in the planning and evaluation of child protection systems: we need to systematically invite all children who get involved in child protection and who are able to understand to give their views on the system and its impact; was it effective, did it add abuse to that already suffered?

There is only one way to measure progress towards eliminating violence against children, which is through confidential interview studies with representative groups of children, and also with parents and other carers to identify the experience of babies and young children. Other data collection, on reporting, investigations and so on tells us nothing about the actual level of violence, and nothing about progress towards elimination.

Then other related issues of confidentiality and privacy: it does not help children to have systems to protect them which ride roughshod through their rights to privacy and their evolving capacity to make decisions for themselves. The protection of babies and young children requires vigilance by all who come in contact with them; mandatory reporting is absolutely right. But with older children with capacity to understand their situation, we have to be very careful about reporting. We know from research with young adults that a big majority of those who suffered even extreme abuse in their childhoods told nobody; a major reason was their distrust of the system’s ability to improve things for them. As well as publicised access to conventional services, children with the capacity to understand need to have additional, well-publicised access to confidential services (confidential help lines, while valuable, are not enough) – services which will only break confidence and over-ride the child’s wishes if they believe they must do so in order to protect the child or others from immediate risk of serious injury or death. There is a great reluctance of adults to allow children a right to confidential advice, and it comes from the same old concepts of children as possessions or objects.

Moving on, the new Council of Europe conventions on trafficking and on sexual abuse and exploitation provide detailed frameworks that need reflection in national law. The latest convention effectively tackles prevention; including treatment of offenders. Ending impunity does not demand mindless pursuit of punishment or denial of due process for perpetrators; these are forms of violence in themselves. We are no longer going to lock sex offenders up and throw away the key, so – with due regard for public and child safety – we must focus on treatment and rehabilitation. When parents are the perpetrators, we have to be particularly sensitive to ensure that interventions, including prosecution of parents or separation of children, is only pursued when necessary to protect a child from significant harm and in the best interests of the victim child.

Another issue, bravely tackled in the new Council of Europe Convention on the Protection of Children against Sexual Exploitation and Sexual Abuse is the privacy obligation to respect children’s own sexuality and to ensure that when involved in sexual abuse or exploitation they are treated as children first and always as victims not criminals. As the Council’s Commissioner for Human Rights wrote in a recent “Viewpoint”, states must stop making children criminals. Child sex offenders need treatment not criminalisation; putting children as young as 14 or even 11 through a trial for rape is an obscene form of deeply destructive violence. I hope this project will soon focus on the difficult issue of the age of criminal responsibility and the importance of separating the concepts of responsibility – we want children to understand their responsibilities – and criminalisation. So that, as the CRC requires, separate and distinct juvenile justice systems are developed which respect all children’s rights up to 18.

Finally in this quick tour of just some of the difficult issues, we have to ensure through legislation real remedies for children, without which rights have no meaning. Child rights legal advocacy is still in its infancy; the CRC, whether incorporated or not, is not yet being consistently applied as a legal instrument. But the Council, and this project in particular, are taking very exciting steps.

We need to recognise, as the guidelines do, that what we are about is challenging and changing deeply negative adult attitudes to children. Our long-term aim must be to create societies which no longer need special laws and special protection systems for children, because their inherent values respect children in reality more – not less – than adults.