Is it spanking or is it child abuse?
Prepared with materials from the Ontario Association of Children's Aid Societies website and an Article by Marvin Bernstein, Director of Policy Development and Legal Support for OACAS. (www.oacas.org/resources/OACASJournals/2004June/index.htm)
"Considerable media attention has been paid recently to the apprehension of seven children because the parents were using spanking to discipline them. Similar incidents in the past have sparked controversy and public debate about "spanking laws," the rights of parents to discipline their children and the need of society to protect those same children. The actions of the Children's Aid Society have been described as part of a crusade against spanking and the result of bad decisions made by dispirited social workers.
Considerable misinformation exists regarding the laws, both provincial and federal and the responsibility of Children's Aid Society staff to uphold legislation put in place by parliament as a reflection of public values. Those values, as expressed in Ontario's Child and Family Services Act, clearly state that the paramount purpose of child welfare interventions must be the safety, protection and well being of children. All actions taken in the recent Aylmer case have arisen out of the Children's Aid Society enforcing the Child and Family Services Act. This Act says nothing about spanking.
Unfortunately, the media doesn't always seem to appreciate the differences between simple spanking and abuse, and has not been helpful in drawing such distinctions to the public's attention. Such misinformation trivializes genuine concerns about child safety. What the Child and Family Services Act does outline is the duty of a Children's Aid Society to intervene when it receives reports that children have suffered abuse or are at risk of suffering abuse. This is the clear mandate of the Children's Aid Society, which is accountable to the court for actions taken to protect children and ensure their safety and well being. Government regulations in Ontario include corporal punishment that leaves marks or causes injury, or punishment with the use of implements as grounds for a Children's Aid Society to investigate for possible child abuse or future risk of harm.
A recent national report on child maltreatment in Canada indicated that in 31% of all cases referred to child welfare authorities physical abuse was the primary concern. Incidents of child abuse are usually connected to physical punishment or are confused with child discipline. There is a strong link between the use of corporal punishment and the abuse of children. Even mild forms of corporal punishment are associated with poor developmental outcomes for children.
The federal statute that deals with the issue of corporal punishment of children is the Criminal Code of Canada. Section 43 of the Criminal Code justifies the use of corporal punishment by parents and guardians to correct children. However, the criminal justice system is enforced by the police and Crown Attorney's office, and not the Children's Aid Society. While the criminal justice system and the child protection system may be present in a matter of alleged child maltreatment, the two systems operate separately.
The Ontario Association of Children's Aid Societies has supported the repeal of that section of the criminal code based on our belief that it discriminates against children by failing to provide for them the same protections that are offered to all other citizens. Its existence contributes to the maltreatment of children. The section has been used successfully by parents to justify the infliction of injuries in the name of discipline.
Although challenge of this section has been unsuccessful to date, it was generally agreed at a court hearing in 1999 that:
Faced with the legal context and the social consequences, it is easy to see why the Children's Aid Society should be concerned about the use of corporal punishment.
Judicial Limitations for the Interpretation of the Justifiable Limits of Corporal Punishment:
On January 30, 2004, the Supreme Court of Canada released its decision upholding the constitutionality of section 43 of the Criminal Code of Canada. This is the section of the Criminal Code of Canada that justifies the use of corporal punishment by parents, teachers and those standing in place of the parents, where the force is reasonable under the circumstances and is administered for the purpose of correction.
Every schoolteacher, parent or person standing in the place of a parent is justified in using force by way of correction toward a pupil or child, as the case may be, who is under his care, if the force does not exceed what is reasonable under the circumstances.
While upholding the constitutionality of section 43 of the Criminal Code, the Supreme Court of Canada has substantially narrowed the scope of section 43 as a defence against the assault of children by their caregivers and teachers. In the Judgment, the Court has attempted to carve out several limitations or a series of classifications and sub-classifications for assisting a court in deciding whether the physical force applied to a child was reasonable under the circumstances. These judicial limitations can be summarized as follows:
- 1) Only parents may use reasonable physical force solely for purposes of correction.
- 2) Teachers may use reasonable force only to remove a child from a classroom or secure compliance with instructions, but not merely as corporal punishment.
- 3) Corporal punishment cannot be administered to children under two or teenagers.
- 4) The use of force on children of any age incapable of learning from [it] because of disability or some other contextual factor is not protected.
- 5) Discipline by the use of objects or blows or slaps to the head is unreasonable.
- 6) Degrading, inhuman or harmful conduct is not protected, including conduct that raises a reasonable prospect of harm.
- 7) Only minor corrective force of a transitory and trifling nature may be used.
- 8) The physical punishment must be corrective, which rules out conduct stemming from the caregiver’s frustration, loss of temper or abusive personality.
- 9) The gravity of the precipitating event is not relevant, and
- 10) The question of what is reasonable under the circumstances requires an objective test and must be considered in context and in light of all the circumstances of the case.
While the CAS is responsible for investigating allegations of abuse and neglect as defined in the provincial Child and Famil