notes for seminar 2
Transcript of notes for seminar 2
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Corporal Punishment at Home
A Right not to be Hit?
Law & SocietySeminarAnne S.Y. Cheung
2011
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Will you punish your child
ifHow
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Corporal punishment by parents is a
controversial method of discipline.
Would you support outlawing it in HongKong? Why and why not?
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Suggested Approach andOutline
1. Introduction: Frame the issue
2. Do you have a stance?
3. Why is it so controversial?
4. What is CP?
5. Legal position in HK
6. Legal position in other countries? Leading
case?7. Other writings: academic; outside legal
field
8. Your Conclusion & your stance 4
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Why is it controversial?
CP vs. abuse vs. education byparents
Conceptual difficulty
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Why is it controversial?
Role of the state
Children vs. parents?
Parents (family autonomy; privacy)vs. state intervention
Childrens rights vs. state (failure to
protect them)
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Corporal Punishment
The use of physical force with theintention of causing a child toexperience pain but not injury, for
purposes of correction or control ofthe childs behaviour e.g. spanking,slapping, hitting, physical
punishment (Murray Straus)
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Abuse
Physical abuse: physical injury orsuffering to a child, or failure toprevent so, where there is a definite
knowledge, or a reasonable suspicionthat the injury has been inflicted(SWD, HK)
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Physical Abuse
anything that interferes with theoptimal development of a child(David Gils)
whether the behaviour puts thechild at risk of injury (physical orpsy) that is greater than the risk of
alternative modes of child rearing(Murray Straus)
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Legal Position
HK: s. 27 Offences against thePerson Ord.
Complete ban: UNCRC; ECtHR;Sweden
Moderate: depends onreasonableness
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HK: parental rights
What is it?
Problem with this approach
HKSAR v. Takahashi Koyo and Chu HKSAR v Lam Liu Yin (2005)
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Complete Prohibition
Sweden
Civil law: what does this mean?
Canadian: minority judgment (DM30) Equality and discrimination; body and
dignity; security of weak and
vulnerable > C as second classcitizen
Freeman: dignity
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A v. United Kingdom
Facts?
Issue
Whether the UK should be heldresponsible for failing to protect himfrom his stepfather under article 3ECHR, which had subjected him toinhuman or degrading treatment orpunishment (para. 16)?
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What constitutes ill-treatment?
English law: defence to usereasonable chatisement
Treatment of sufficient severity
Depends on nature and context of the treatment, duration,
physical and mental effect,
sex,
age,
state of health of the victim (para. 14)
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What does the caseillustrate?
After the case, what is the Englishapproach?
S. 58 Children Act (2004) (DM28)
Reasonable chastisement cannot beused as defence if
No implement; no injury mark onbody
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Reasonable Chastisement
US; Canada
For educational purpose
Reasonableness: age, extent ofunderstanding; force and seriousnessof beating
Problem: fuzzy restraints Suggested guideline DM10 Larzelere
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Medical-Psychological Study
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Cycle of Violence
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http://inastrangeland.files.wordpress.com/2010/12/childdoll.jpg -
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Pathway to the stress response.
hyperarousal!
hypoarousal.
AppropriateCaregiverresponse
Returnto calm
state
Noresponse
Fright orfight orflight
Inappropriate response
or
Signal of
danger;e.g.maltreatment,
absence of.Caregiver
Dissociation
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Your Views?
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