Association for the Protection of All Children (APPROACH) v Ireland
The European Committee on Social Rights has found that Ireland is in violation of Article 17 of the Revised European Social Charter on the grounds that it has not prohibited all forms of corporal punishment of children.
The complainant organisation alleged that Ireland is in violation of Article 17 on the basis that there is no explicit and effective prohibition of all corporal punishment of children in the family, schools and other settings. It referred to Committee’s previous finding that Ireland was in breach of Article 17 in the case of World Organisation v. Torture (OMCT) v. Ireland, Complaint No.18/2003 in 2004. It alleged that the Government has taken insufficient action to remedy the violation of Article 17 of the Charter found in that case. The complainant argued that the continued existence of the common law defence of reasonable chastisement allows parents and other carers to continue to inflict corporal punishment on children in violation of the Charter. It submitted that although guidelines and regulations pertaining to foster and residential care prohibit corporal punishment, the failure to enshrine the prohibition in law is problematic.
Furthermore, while corporal punishment is banned in pre-school establishments by the Child Care (Pre-School Services) Regulations 2006, section 58 of the Child Care Act 1991 exempts child minders caring for children of relatives, children of the same family or not more than three children of different families from the scope of the prohibition. Thus, children in such settings can be subjected to corporal punishment.
The Government argued that notwithstanding the common law defence of reasonable chastisement, existing legislation protects children within the family and in care (notably the Children Act 2001 and the Criminal Justice Act 2006). It submitted that significant protection exists for children in care, both in foster and residential care under the relevant standards and inspection systems. It also pointed to measures taken to enhance the protection of children since the last complaint on the issue, including structural, constitutional and legislative reforms.
The Committee found that there is now a wide consensus at both the European and international level among human rights bodies that the corporal punishment of children should be expressly and comprehensively prohibited in law. The Committee recalled its finding in OMCT v Ireland and noted that since that decision, there have been no developments as regards the protection of children from corporal punishment in the home. With regard to children in foster and residential care, the Committee remarked that while the relevant guidelines and practices provide children with a significant level of protection, this does not equate to a statutory prohibition. The Committee further noted the exemption from prohibition of corporal punishment for child minders as outlined above. In light of the failure to prohibit and penalise all forms of violence against children in all settings, the Committee again concluded that Ireland is in breach of Article 17.
In response to the ruling, the Minister for Children and Youth Affairs said officials from his Department had begun talks with the Department of Justice on removing the defence of reasonable chastisement.
Survey: Short Online Course on Alternatives to Detention
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Submission on the Children and Family Relationships Heads of Bill
Read about the Clinic Submission to the Joint Oireachtas Committee on Justice, Defence and Equality here.