Ireland is one of the last EU member states who have not completely banned corporal punishment of children.
Using force against a child is illegal. However, traditionally, parents have had the defence of “reasonable and moderate chastisement” in disciplining children. This common law defence was confirmed in Article 37 of the Children Act 1908.
Since 1997, there has been an outright ban on corporal punishment in schools, with teachers liable to be charged with assault under the Non-Fatal Offences against the Person Act. However, this was not extended to parents or others acting in loco parentis as they retained the defence of “reasonable chastisement”. The Children’s Act 2011 removed the statutory defence, but the common law defence lived on. Guidelines for foster care, residential centres and child care facilities all prohibit corporal punishment, but none of that is underpinned by legislation.
Earlier this year, the Association for the Protection of All Children issued a complaint against Ireland. The Council of Europe ruled that the lack of a clear ban on smacking in Ireland violated children’s rights under the European Social Charter. Following publication of the decision in May 2015, Minister for Children and Youth Affairs, James Reilly pledged to review the “reasonable chastisement” defence.
Children’s rights groups, including the ISPCC and the Children’s Rights Alliance have been campaigning for change in the law to remove the defence and ensure that children have equal protection and rights under the law. They argue that as you cannot hit an adult in Ireland; the law should be no different for children. Senator Jillian van Tournhout campaigned for the change, and stated that:
“Adults have a talent for inventing euphemisms to make them feel more comfortable while they inflict pain and humiliation, such as spanking or smacking. The truth is that, for a child, all of this is violence, and if it were directed at an adult, it would constitute criminal assault.”
The Government now propose to remove the defence entirely by way of amendment to the Children First Bill 2014. The Ombudsman for Children welcomed this decision, which he confirms “at long last places Ireland on an equal footing with the vast majority of European Member States”.
Kate Moloney & Rebecca Townsend