Corporal Punishment at Home

A Right not to be Hit?

Law & Society

Seminar
Anne S.Y. Cheung
2011
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Will you punish your child

if
How

Corporal punishment by parents is a

controversial method of discipline.
Would you support outlawing it in Hong
Kong? Why and why not?

Suggested Approach and

Outline
1.
2.
3.
4.
5.
6.

Introduction: Frame the issue

Do you have a stance?
Why is it so controversial?
What is CP?
Legal position in HK
Legal position in other countries? Leading
case?
7. Other writings: academic; outside legal
field
8. Your Conclusion & your stance
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Why is it controversial?
CP vs. abuse vs. education by
parents
Conceptual difficulty

Why is it controversial?
Role of the state
Children vs. parents?
Parents (family autonomy; privacy)
vs. state intervention
Childrens rights vs. state (failure to
protect them)

Corporal Punishment
The use of physical force with the
intention of causing a child to
experience pain but not injury, for
purposes of correction or control of
the childs behaviour e.g. spanking,
slapping, hitting, physical
punishment (Murray Straus)

Abuse
Physical abuse: physical injury or
suffering to a child, or failure to
prevent so, where there is a definite
knowledge, or a reasonable suspicion
that the injury has been inflicted
(SWD, HK)

Physical Abuse
anything that interferes with the
optimal development of a child
(David Gils)
whether the behaviour puts the
child at risk of injury (physical or
psy) that is greater than the risk of
alternative modes of child rearing
(Murray Straus)
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Legal Position
HK: s. 27 Offences against the
Person Ord.
Complete ban: UNCRC; ECtHR;
Sweden
Moderate: depends on
reasonableness

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HK: parental rights

What is it?
Problem with this approach
HKSAR v. Takahashi Koyo and Chu
HKSAR v Lam Liu Yin (2005)

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Complete Prohibition
Sweden
Civil law: what does this mean?
Canadian: minority judgment (DM30)
Equality and discrimination; body and
dignity; security of weak and
vulnerable > C as second class
citizen
Freeman: dignity
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A v. United Kingdom
Facts?
Issue
Whether the UK should be held
responsible for failing to protect him
from his stepfather under article 3
ECHR, which had subjected him to
inhuman or degrading treatment or
punishment (para. 16)?
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What constitutes illtreatment?

English law: defence to use
reasonable chatisement
Treatment of sufficient severity
Depends on

nature and context of the treatment, duration,

physical and mental effect,
sex,
age,
state of health of the victim (para. 14)
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What does the case

illustrate?
After the case, what is the English
approach?
S. 58 Children Act (2004) (DM28)
Reasonable chastisement cannot be
used as defence if
No implement; no injury mark on
body
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Reasonable Chastisement
US; Canada
For educational purpose
Reasonableness: age, extent of
understanding; force and seriousness
of beating
Problem: fuzzy restraints
Suggested guideline DM10 Larzelere
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Medical-Psychological Study

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Cycle of Violence

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Pathway to the stress response.

Appropriate
Caregiver
response
Signal of
danger;
e.g.
maltreatme
nt,
absence of.
Caregiver

Return
to calm
state

hyperarousal!

No
response
or

Inappropria
te response

Fright or
fight or
flight

Dissociation
hypoarousal.

Your Views?

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