Disciplining a child - what are the legal limits?

Thirdfox

I was just wondering about the limits currently imposed in Ireland. Not here to debate the morality of choosing to physically discipline your child, just the legalities...

I believe "slapping"/smacking is still allowed? Though I've found articles from the Human Rights Commissioner from 2007 that called for a ban. I believe in England it's permissible to strike the child as long as no mark is left from the initial force? e.g. flick their finger you don't lose your child, use the belt and you're in trouble.

Haven't found much material on this from my 5 minutes of googling...

dermot_sheehan

The common law defence of "reasonable chastisement" depends on the facts and what the trier of fact thinks is reasonable. It was abolished in 1997 by the non fatal offences against the person act with respect of teachers.

In the ECHR case of A v. United Kingdom the Strasbourg court however held the U.K. in permitting such a defence for the stepfather of a child who was beaten repeatedly with a garden cane violated article 3 of the convention (prohibition on torture).

Thirdfox

So the law in this area is unclear then? (Common law being supplanted by the ECHR?) Though of course the ECHR not being a binding document - and garden cane seems pretty exceptional.

edit: or did it get incorporated into statute - I've found reference to
"reasonable punishment" (section 58 of the Children Act 2004). - scratch that, that's only in England - so in Ireland there is no statutory provision on this either way?

dermot_sheehan

Common law defence is still there and is an issue of fact. One jury in a trial of a section 3 assault prosecution could consider the circumstances constitute reasonable chastisement, another jury could find otherwise.

but there is an argument that ireland may be liable in strasbourg for having such an extensive defence to an assault on a child.

I don't think it could be seriously argued s. 2 of the European Convention Act 2003 abolished the common law defence. Dublin City Council v. Bowers holds the bounds of irish courts interpreting irish law in a convention compliant manner is much more limited then the uk courts.

An abolishment or restriction of a defence to a criminal charge implicitly by incorporating an international treaty into irish law would in my view not be constitutionally certain enough to abolish this well established defence.

Goesague

Reasonable chastisement is a variable concept See [URL="javascript:;"]Rex v. Donovan[/URL] [1934] 2 K.B. 498, C.C.A.where marking a girls bottom with a cane was stated to be normal punishment. There is no way therefore of stating any hard and fast rule. The way things are going it will be an offence to eyeball a child soon.

epgc3fyqirnbsx

The proposed constitutional referendum on the rights of the child may affect this. If a child is to have specific constitutional protection from harm then surely it is forseeable that chastisement may be likened to assault.

Has the proposed wording been published yet?

Goesague

A child that is not chastised will suffer miore harm than one that is. All children need chastisement.