The UN Study on Violence against Children urges States to: “prohibit all forms of violence against children, in all settings, including all corporal punishment, harmful traditional practices, such as early and forced marriages, female genital mutilation and so-called honour crimes, sexual violence, and torture and other cruel, inhuman or degrading treatment or punishment, as required by international treaties, including the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment and the Convention on the Rights of the Child.”
States must enact and enforce legislation to effectively prohibit, prevent and respond to all forms of violence against children. Some forms of violence against children, such as corporal punishment, are tolerated by society. In such cases, it is particularly important for the law to be explicit and ban these practices.
Unfortunately, most children are not yet fully protected by law from all forms of violence in all settings. In countries where there has been progress, further efforts are required to narrow the gap between law and practice.
The law must convey an unequivocal message that children’s right to freedom from all forms of violence must be safeguarded everywhere and at all times. To prohibit violence, some countries have undertaken constitutional reforms, while others have introduced new provisions in family and criminal codes, in child protection and domestic violence legislation.
Legal prohibition must be supported by detailed provisions in specific pieces of legislation, both to address distinct forms of violence, such as sexual abuse and exploitation, trafficking or harmful traditional practices, and to tackle violence in specific settings, including schools, care and justice institutions and in the home.
Enabling laws and regulations in relevant legal fields are also critical to give full meaning to the prohibition. This increases States’ capacity to deter incidents of violence, to protect the children concerned, to ensure appropriate support for the process of enforcement and to end impunity.
Examples of legislation containing a general prohibition on violence against children
The Federal Constitutional Act on the Rights of Children 2011 contains 8 articles defining the rights of the child with Articles 1 and 5 guaranteeing all children the right to protection and a non-violent upbringing. Article 1 affords every child the right to protection and care that is necessary for his/her well-being, development and in consideration of his/her own best interest. Article 5 explicitly states that every child has the right to a non-violent upbringing, prohibiting corporal punishment, the infliction of mental suffering, sexual abuse and other abuses and confirming that every child has the right to protection from economic and sexual exploitation. The second paragraph of Article 5 provides that every child who is a victim of violence or exploitation has a right to adequate compensation and rehabilitation.
There is a range of constitutional and statutory provisions that prohibit violence against children in Ireland, including those relating to assault, cruelty and endangerment.The Children First Act 2015 was passed by the Irish parliament on 11 November 2015 and came into effect on 11 December 2015 to afford more comprehensive provisions for the care and protection of children from harm by requiring that providers of services to children prepare child safeguarding statements and formalizing reporting procedures to the Child and Family Agency. Harm is explicitly defined in this Act as “(a) assault, ill-treatment or neglect of the child in a manner that seriously affects or is likely to seriously affect the child’s health, development or welfare, or (b) sexual abuse of the child, whether caused by a single act, omission or circumstance or a series or combination of acts, omissions or circumstances.” Section 28 of the Children First Act repeals the common law defence of “reasonable chastisement” by way of an amendment to the Non-Fatal Offences Against the Person Act 1997, thereby achieving prohibition of corporal punishment in the home.
The new Constitution came into force in August 2010. Article 29 prohibits any form of violence from either public or private sources. This ban is binding for all State organs and all persons. Article 53.d provides that “every child has the right to be protected from abuse, neglect, harmful cultural practices, all forms of violence, inhuman treatment and punishment, and hazardous or exploitative labour.”
Lao PDR Law on Preventing and Combating Violence against Women and Children (No. 56/NA Vientiane Capital City, 2015) aims to eliminate all forms of violence against women and children including any behavior that may result in danger, harm, physical, psychological, sexual, or economic suffering [or damage to] the property of women and children by defining the principles, rules, and measures in place for preventing violence as well as provisions of assistance for victims of violence, in order to protect and uphold the rights, dignity and interests of women and children, with a view towards gender equality, peace, justice and public order.
The Law on the Rights of the Child 2016 explicitly confirms children’s right to be protected from violence, including corporal punishment (art. 7.1, unofficial translation): “Children have the right to be protected from crime, offences or any forms of violence, physical punishment, psychological abuse, neglect and exploitation in all social settings.”; Law on the Rights of the Child (Feb. 5, 2016), Mongolian Legal Information Integrated System website (in Mongolian).
Article 4 of the Code of Children and Adolescents affords children the right to moral, psychological and physical integrity. It also prohibits torture, cruel or degrading treatment. Forced labour, economic exploitation, prostitution, trafficking, the sale of children and other forms of exploitation are considered extreme forms of violence. The Law prohibiting the use of physical and other humiliating punishment against children and adolescents of 2015 (“Ley que prohibe el uso del castigo físico y humillante contra los niños, niñas y adolescents”) introduced a new Article 3A in the Code of Children and adolescents: “Children and adolescents, without exception, are entitled to good treatment, which means to receive care, affection, protection, socialization and nonviolent education in a harmonious, supportive and nurturing environment in which comprehensive protection will be provided, either by their parents, tutors, or legal representatives, as well as their teachers, administrative, public or private authorities or anyone else.” The right to good treatment is reciprocal among children and adolescents.
The Swedish Penal Code contains an extensive list of articles prohibiting sexual violence against children. Other articles prohibiting physical and psychological violence also apply when the victims are children, although children are not specifically mentioned. The Children and Parents Code was amended in 1979 to include a ban on physical punishment and humiliating treatment of children. Chapter 6, section 1 of the code highlights that “Children are entitled to care, security and a good upbringing. Children are to be treated with respect for their person and individuality and may not be subjected to corporal punishment or any other humiliating treatment.” Sweden was the first country to introduce a specific ban on corporal punishment of children.
Legislation establishing comprehensive child protection systems
Law 13.431 establishes a comprehensive child protection system to safeguard the rights of child victims and witnesses of violence. The legislation urges the federal government, states and local governments to develop comprehensive and well-coordinated policies to secure children’s right to freedom from violence in all settings, including the home and family.
Law 13.431 recognizes the right of the child to access information and legal representation, to participate in decisions affecting her/him, to protection from re-victimization and to benefit from reparation and relevant support services.
The law also establishes accessible, safe, confidential and child-friendly reporting, counselling and complaint mechanisms for child victims and witnesses of violence, recognizing the right of a child who has experienced violence to be listened to by a well-trained professional and in a child-friendly environment.