The United Nations Convention on the Rights of the Child (UNCRC) has applied to Hong Kong since 1994, and it defines a “child” as a person aged under 18. Having been signed in 1989, it became effective the following year, and now has 140 signatories. Article 19 requires that children be protected from “all forms of physical or mental violence, injury or abuse”, and this includes corporal punishment.
In 1979, Sweden became the first state to ban the physical punishment of a child, and it is now illegal in 63 countries. In Asia, corporal punishment was banned in Mongolia in 2016, in Nepal in 2018, and in Japan in 2020. When Japan proscribed it in all situations, it was done in an effort to protect children after a series of high-profile cases in which minors had faced grave abuse in the name of discipline.
On March 21, Wales became the latest jurisdiction to criminalize the physical punishment of a child by somebody responsible for its care. The Welsh first minister, Mark Drakeford, called it a “historic moment for children and their rights in Wales”, and the prohibition covers the smacking, hitting, slapping or shaking of a child. He said there “is no place for physical punishment in modern Wales”, meaning that everyone, regardless of age, deserves to be protected.
Corporal punishment is always intolerable, irrespective of whether it occurs in the school, the care facility, the correctional institute or the home, and the case for a uniform prohibition is overwhelming
In some common law jurisdictions, including Hong Kong, anybody suspected of physically harming a child is able to rely on the defense of “reasonable chastisement”. This, however, has left the door open for the infliction of untold misery on many children behind closed doors, and this is why Wales is the latest jurisdiction to eliminate this defense. Within the UK, Jersey and Scotland had previously done the same, and pressure is mounting for England and Northern Ireland to follow suit.
In any event, the “reasonable chastisement” defense is largely artificial. Most people have no idea of the point at which reasonable punishment becomes unreasonable, or when the force used becomes excessive. Many cases, moreover, are borderline, and suspects are evading prosecution because they are given the benefit of the doubt. Only clear-cut cases ever end up in court, and even these can result in acquittals because of the difficulties children face when testifying against family members or carers.
In Wales, however, the situation is now clear, and children are protected from assault in all situations. Drakeford says there will be “no more gray areas”, and children will have equal rights with adults when it comes to their physical safety. The police will no longer have to wrestle with the problem of whether particular chastisement has overstepped the mark. This means, as Wales’ commissioner for children, Sally Holland, has explained, that children now have “clear and unambiguous precedence and protection”.
The UN Committee on the Rights of the Child has helpfully defined corporal punishment as “any punishment in which physical force is used and intended to cause some degree of pain or discomfort, however slight”, and this is now proscribed in most, but not all, situations in Hong Kong. Whereas the Education Regulations prohibit corporal punishment by teachers, caning as a punishment for offenders has been unlawful since 1990. The Child Care Service Regulations ban physical punishment in child care centers, and caning is no longer an option for inmates who commit disciplinary offenses within the correctional institutions.
It is, however, in domestic situations that force can still be used against children, and this can no longer be tolerated by enlightened societies. It can be traumatic for the child, with long-term consequences. This is why, wherever possible, alternative punishments are preferable, such as a loss of privileges, a denial of pocket money or a curfew. Although it may be tempting to imagine that the problem is not serious in Hong Kong, the latest wake-up call shows otherwise, and must be heeded.
On March 22, the NGO, Against Child Abuse (ACA), published the results of the survey it conducted between November 2021 and January 2022, and involving 677 children, aged 6 to 17, and 470 parents with children aged 3 to 17. Whereas 49 percent of the children revealed that they had received corporal punishment from their parents or carers, 5 percent said they were “always” being punished. Physical punishment and verbal abuse can, says ACA, impair a child’s physical and mental health, and it also damages relationships.
In 2019, in its earlier survey, ACA discovered that 69.5 percent of the child respondents considered that physical punishment had affected them negatively. Many commented that they became alienated from their parents, underwent a loss of self-confidence, and suffered emotional distress. Incredibly, 76.9 percent of the children aged under 12 did not even know why they were punished, and this suggests that many of the punishments inflicted are irrational, which must hugely perplex the child. Quite clearly, therefore, violence in the home can lead to family breakdown, and nothing useful can ever be expected to come of it.
As regards the parents themselves, they were frank with ACA, with 60 percent admitting they had physically punished their children. Although they often realized that their actions were harmful, some admitted to resorting to force in stressful situations when they could not understand the emotional needs that were triggering the child’s unruly behavior or disobedience. Others admitted to being so tired and stressed that they simply lost control, and irrational disciplining like this not only generates grievances among its victims but also drives wedges between the parent and the child.
It was, of course, already known that today’s victims often turn into tomorrow’s abusers, but the extent was unclear. Of the adults surveyed by ACA, an astonishing 78 percent disclosed that they had themselves been physically punished during childhood. This shows there is a vicious cycle at play, and it is this that needs to be broken.
On one level, this may be attempted if the schools and social services can raise awareness among parents of the harm that corporal punishment can do to their children, and advise them to seek professional help if they cannot cope with their child’s behavior. On another level, it is high time for the physical punishment of children in all situations to be criminalized, as in the other 63 jurisdictions. It must be hoped, therefore, that the Commission on Children, chaired by the chief secretary, John Lee Ka-chiu, will have taken note of the ACA’s findings, and that, duly galvanized, it will now take the lead in demanding change.
If corporal punishment in all situations can finally be proscribed, it would be sensible for the necessary legislation to proceed in tandem with the mandatory reporting of child abuse, as the two are interrelated. After all, on Oct 6, in her policy address, the chief executive, Carrie Lam Cheng Yuet-ngor, said, “We are formulating a legislative proposal to provide for a mandatory reporting mechanism on child abuse cases,” and this is hopefully now in the pipeline. Mandatory reporting is also long overdue, not least because many of the children who are domestically harmed are too afraid to report it, or do not know who to tell, and this places a heavy responsibility on people who become aware of the situation to report it, hopefully before any long-term harm is caused.
All types of degrading treatment of children are unacceptable in modern Hong Kong, and a reality must be made of the protections to which they are entitled under the UNCRC. After all, the measure of the humanity of a society is the way in which it treats its weakest and most vulnerable members. Corporal punishment is always intolerable, irrespective of whether it occurs in the school, the care facility, the correctional institute or the home, and the case for a uniform prohibition is overwhelming. If it values its reputation, this is not an area in which Hong Kong can afford to be found wanting, and physical assaults on the child must now become a thing of the past.
The author, a senior counsel, is honorary consultant to the Child Protection Institute of Against Child Abuse, and was previously the director of public prosecutions of the Hong Kong SAR.
The views do not necessarily reflect those of China Daily.