Issue link: https://maltatoday.uberflip.com/i/281887
maltatoday, SUNDAY, 23 MARCH 2014 11 News 'Children should be seen but not hurt' 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 Mal- tese Law… If any reasonable chas- tisement tantamounts [sic] to even slight bodily harm, this is an offence against the person. Hence, Malta cannot accept this recommenda- tion". The UN Committee argued that "this assertion about Maltese law completely misrepresents the legal- ity of corporal punishment in Malta, where in fact 'reasonable chastise- ment' by parents is lawful". On closer inspection, it transpires that the UN Committee was correct. Striking a child to mete out punish- ment was not entirely ruled out un- der Maltese law, which allowed for the possibility so long as the punish- ment did not 'exceed the bounds of moderation' (see box below for more specific details). Malta would eventually acknowl- edge 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 gov- ernment finally passed legislation to remove the last remaining ambi- guities from the law. This it did by means of one simple sentence: "Eve- ry person is guilty of a contravention against the person who, being au- thorised 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 be- coming increasingly necessary, and not just to prevent cases of bodily harm. Research in fact strongly sug- gests that the negative effects of hit- ting 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 ex- perience mental illness. Their risk of mood disorders, including depres- sion and mania, was 1.5 times greater than people who hadn't been sub- jected to physical punishment. The risk of depression alone was 1.4 times greater, which was the same rate for anxiety. People who had been physi- cally 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 expe- rience as a family lawyer, I have come across a number of cases where par- ents, 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 chastise- ment' 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 punish- ment for being too loud!" As such she welcomes last Mon- day's legal clarification. "I believe that it was long overdue that such behaviour be made punishable. Chil- dren 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 at- titudes towards them, when consid- ering that parents are there to 'men- tor' 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 per- petuate 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 domes- tic 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 meas- ures, will not only protect the vulner- able child, but also helps in creating a culture of more tolerance and under- standing and thus ensuring that any form of violence is unacceptable." Positive parenting Having pushed for these amend- ments for so long, Children's Commissioner Helen D'Amato is understandably satisfied with Monday's legislative changes. But in comments to MaltaTo- day, she also confirms that a cer- tain resistance, especially among parents, continues to exist. "This is a very, very important step," she asserts. "It establishes beyond doubt that it is a crimi- nal act to beat a child – 'li ssaw- wat', to be clear – even as a form of punishment." Nonetheless D'Amato acknowledg- es that not everyone agrees with this perceived leniency in parenting, and reveals that her efforts to end corpo- ral punishment – among other as- pects of the application of children's rights – have also earned her rebuke from sectors of the public. "From the feedback we are get- ting, 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 chil- dren 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 mat- ters," D'Amato recalls. "It would ap- pear 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 Chil- dren's Commissioner adds, "If you open it on the last page, it says you have to respect the rights of oth- ers…" Nonetheless she claims to under- stand 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 punish- ment." Lara Dimitrejivic agrees. "From a parenting perspective, both my hus- band 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 situa- tions 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". Helen D'Amato: "The amendments establish beyond doubt that it is a criminal act to beat a child"