‘Children should be seen but not hurt’

‘Spare the rod and spoil the child’ is a well-known expression, and until not long ago it was interpreted quite literally in schools, private homes and care institutions all over the country (and arguably all over the world).

Times have however changed, and following various recent legal amendments the expression has now been demoted to a largely proverbial level. Corporal punishment in Maltese schools was discontinued (officially, at least) when Malta ratified the UN Convention of the Rights of the Child in 1990: making those of us born before the 1980s the last of many long-suffering generations to have endured ‘the stick’ – usually in the form of a wooden ruler struck across the palm of the hand – or ‘the fish’, as the leather strap favoured by some schools was affectionately known.

But for many years afterwards it remained unclear whether corporal punishment was specifically prohibited at law, or whether schools had simply changed their disciplinary procedures in accordance with the Convention. There was no explicit ban under Article 62 of the Education Act 1988 (amended 2006), at least until this situation was rectified by a legal amendment last Monday.

And the situation was even less clear in domestic settings. Despite a clear prohibition of physical violence upon children in the Domestic Violence Act, there was a widespread perception that the ban on corporal punishment applied only to schools, and not to the discipline of children at home.

More worryingly still, there is compelling evidence to suggest that this same ban on corporal punishment (whether or not explicitly laid down at law) was only viewed as applicable in cases where the punishment actually resulted in bodily harm. And in its submissions to the UN Committee for the Rights of the Child five years ago, the Maltese government appeared to echo this sentiment.

Birching: a corporal punishment with a birch rod, typically applied to the recipient’s bare buttocks, although occasionally to the back and/or shoulders. It was the most common school and judicial punishment in Europe up to the mid-19th century, when caning gained increasing popularity.

Caning: caning was a form of corporal punishment that was generally administered in various schools up until the 1990s, usually applied to the hands and even buttocks, or in some cases, the knuckles.

Ferlas: former students from the Jesuit-run St Aloysius College will recall a form of corporal punishment that did not involved the cane, but the “ferula” or “ferlas”, a strip of lead or even whale bone covered in leather, administered on one hand. Hand-numbing punishments generated a life-long fear of the whip.

‘Reasonable chastisement’

In 2009 the UN urged Malta to amend Article 336 in order to, “Explicitly and entirely prohibit any kind of corporal punishment of children by law, even in cases of so-called ‘reasonable chastisement’ within the family (Italy and Germany)”.

Malta’s response, later described as ‘misleading’, was that “this was a misconception and in fact there is nothing to suggest that corporal punishment is permitted under Maltese Law… If any reasonable chastisement tantamounts [sic] to even slight bodily harm, this is an offence against the person. Hence, Malta cannot accept this recommendation”.

The UN Committee argued that “this assertion about Maltese law completely misrepresents the legality of corporal punishment in Malta, where in fact ‘reasonable chastisement’ by parents is lawful”.

On closer inspection, it transpires that the UN Committee was correct. Striking a child to mete out punishment was not entirely ruled out under Maltese law, which allowed for the possibility so long as the punishment did not ‘exceed the bounds of moderation’ (see box below for more specific details).

Malta would eventually acknowledge that the law was ambiguous on this point. The UN committee notes that “nevertheless, and positively, the Head of Delegation Mr Frans Borg, Permanent Secretary, Ministry for Justice, Dialogue and the Family, confirmed to the Committee that ‘if further clarification of the law was required, he would inform the capital of the need to amend the law to make it clear that corporal punishment was prohibited everywhere’.”

Nor was the UN Committee the only voice calling for a legal amendment. The Office of the Children’s Commissioner has officially endorsed an explicit ban since it was first set up. Its ‘Manifesto for Children’, published in 2007-2008, clearly stated that “not all corporal punishment is prohibited by law” and that “measures should be taken to explicitly prohibit any use of corporal punishment, in favour of positive and non-violent forms of discipline”.

But it was only this week that government finally passed legislation to remove the last remaining ambiguities from the law. This it did by means of one simple sentence: “Every person is guilty of a contravention against the person who, being authorised to correct any other person, exceeds the bounds of moderation, provided that, for the avoidance of any doubt, corporal punishment of any kind shall always be deemed to exceed the bounds of moderation.”

Hitting adults through children

Elsewhere there are indications that this legal amendment was becoming increasingly necessary, and not just to prevent cases of bodily harm. Research in fact strongly suggests that the negative effects of hitting children are by no means limited to the infliction of pain or violence.

A 2012 study by the American Academy of Pediatrics concluded that people who had experienced physical punishment as children were considerably more likely to experience mental illness. Their risk of mood disorders, including depression and mania, was 1.5 times greater than people who hadn’t been subjected to physical punishment. The risk of depression alone was 1.4 times greater, which was the same rate for anxiety. People who had been physically punished were 1.6 times more likely to abuse alcohol, and 1.5 times more likely to abuse drugs.

Separate studies also indicate that corporal punishment in childhood carries over to adulthood in terms of aggression.

There are other possible dangers, too. Family lawyer Lara Dimitrejivic argues that corporal punishment is not only a frequent factor in cases before the Family Court – itself an indication to the extent to which the phenomenon exists in Malta – but that in some cases it is even used as a means for one parent to hit out at the other.

“From a legal perspective and experience as a family lawyer, I have come across a number of cases where parents, particularly perpetrators in cases of domestic violence, have inflicted very harsh punishment on their children, especially on those children who are closer to the parent that is the victim: for example, when mother is the victim.”

Sometimes there is little doubt that the bounds of ‘reasonable chastisement’ would have been exceeded.

Dimitrejivic adds: “Punishments would vary from simple hitting to throwing objects at them, and I have seen cases where children were also burnt with cigarettes as a punishment for being too loud!”

As such she welcomes last Monday’s legal clarification. “I believe that it was long overdue that such behaviour be made punishable. Children are vulnerable and very often innocent bystanders to the world around them. It is even more serious, when they become victims of their parents’ behaviour and aggressive attitudes towards them, when considering that parents are there to ‘mentor’ them and teach them between what is right and wrong in a loving and caring way.”

Moreover, she argues that such patterns of behavior also tend to perpetuate themselves.

“Children do what their parents do, and therefore if they are brought up in an environment where hitting and slapping is normal, they would also behave and act that way. By way of example, in the majority of the cases that I come across vis-a-vis domestic violence, there is generally always a pattern whereby the perpetrator would have been brought up in an environment of abuse. ‘Controlling’ parents, even through legal measures, will not only protect the vulnerable child, but also helps in creating a culture of more tolerance and understanding and thus ensuring that any form of violence is unacceptable.”

Positive parenting

Having pushed for these amendments for so long, Children’s Commissioner Helen D’Amato is understandably satisfied with Monday’s legislative changes. But in comments to MaltaToday, she also confirms that a certain resistance, especially among parents, continues to exist.

“This is a very, very important step,” she asserts. “It establishes beyond doubt that it is a criminal act to beat a child – ‘li ssawwat’, to be clear – even as a form of punishment.”

Nonetheless D’Amato acknowledges that not everyone agrees with this perceived leniency in parenting, and reveals that her efforts to end corporal punishment – among other aspects of the application of children’s rights – have also earned her rebuke from sectors of the public.

“From the feedback we are getting, I would say that some parents are afraid of losing control over their children… arguing that they can’t even correct their own children any more…”

In some cases reactions were downright hostile. Earlier this year, the Children’s Commission issued a publication entitled ‘My Rights’, detailing the rights accorded to children under the UN Convention, and distributed on a nationwide basis to schoolchildren aged 10 to 12.

“We received angry phone-calls telling us, among other things, not to interfere in private, domestic matters,” D’Amato recalls. “It would appear that some people still consider their children to be their own private property…”

Among the frequent complaints was that no corresponding effort was made to inform children of their duties and obligations towards their parents. “They can’t have read the publication very closely,” the Children’s Commissioner adds, “If you open it on the last page, it says you have to respect the rights of others…”

Nonetheless she claims to understand some of their concerns. “It is important to stress that we are not advocating a free-for-all when it comes to raising children. This is not about letting children do what they like. Parents will remain parents. Of course we must keep guiding our children. But we are all for positive parenting. All we are saying is that there is no need for corporal punishment.”

Lara Dimitrejivic agrees. “From a parenting perspective, both my husband and I have always been against any form of corporal punishment on children. We have three kids of our own, the eldest being 16 and the youngest three, and have always humbly believed to have ‘disciplined’ our children by talking to them and explaining that such behavior or action is wrong. In extreme situations they have been grounded and deprived for a short while of things they enjoy such as the TV and the computer. In hindsight, particularly when dealing with a 16-year-old boy today, we believe that this approach to correcting children is clearly being reflected in his behaviour with his peers, younger siblings and us…”

How the law has changed

Before this week’s amendments, the UN Committee on the Rights of the Child identified four problem areas in Maltese legislation:

> Home (lawful): Legal confirmation of the “right” of parents to impose “reasonable chastisement” is found in the Civil Code 1870, which states that a parent may be deprived of the rights of parental authority “if the parent, exceeding the bounds of reasonable chastisement, ill-treats the child, or neglects his education” (article 154), and the Criminal Code 1854, which makes it an offence for a person who “being authorized to correct any other person, exceeds the bounds of moderation” (article 339). There were no detailed definitions on either ‘reasonable chastisement’ or ‘bounds of moderation’.

> Schools (no explicit prohibition): Corporal punishment is considered unlawful in schools, but there is no explicit prohibition. Article 62 of the Education Act 1988 (amended 2006) addresses good behaviour and discipline in schools and makes no provision for corporal punishment, but does not explicitly prohibit it. There is no explicit prohibition of corporal punishment in the Teachers (Code of Behaviours) Regulations 1988.

>  Penal system (no explicit prohibition): Corporal punishment is unlawful as a sentence for crime: it is not available as a sentence under the Criminal Code, the Children and Young Persons (Care Orders) Act 1980 and the Juvenile Court Act. It is reportedly unlawful as a disciplinary measure in penal institutions, but we have been unable to identify prohibiting legislation.

> Alternative care settings (lawful): Corporal punishment is lawful under the provisions for “reasonable chastisement”. Residential institutions are governed by the Children and Young Persons (Care Orders) Regulations 1985, which do not prohibit corporal punishment.

Amendments to Act 336 of the Criminal Code have addressed these issues by specifically prohibiting corporal punishment in all cases. The full text reads:

“Every person is guilty of a contravention against the person who being authorised to correct any other person, exceeds the bounds of moderation, provided that, for the avoidance of any doubt, corporal punishment of any kind shall always be deemed to exceed the bounds of moderation”.