Anne S.Y. Cheung Department of Law, University of Hong Kong Anne.cheung@hku.hk May 2009

1. “Best Interests of the Child” vs. Best Intention of Parents– Justification and Limitation of Corporal Punishment by Parents before the Hong Kong Court? Anne S.Y. Cheung Department of Law, University of Hong Kong Anne.cheung@hku.hk May 2009

2. Aims A study of judicial attitudes in cases concerning corporal punishment at home in Hong Kong 1997-2007 Argues: the line between corporal punishment and physical abuse is murky and judges often adopted a motivation approach from parents’ perspective Not only inadequate but highly risky to children’s health and welfare Advocate for a ban of corporal punishment at home

3. The Murky Line: Training, Rearing, or Abuse? “I do it for your own good.” “I know what is best for you.”

4. Aug. 23, 2007 B9 Southern Weekend

5. SCMP Oct. 5, 2007 at A1

6. SCMP Oct. 5, 2007 at A4

7. Concepts Child abuse no widely accepted definition Physical abuse may involve “hitting, shaking, throwing, poisoning, burning or scalding, drowning, suffocating or otherwise causing physical harm to a child” (Bainham 2004)

8. Corporal Punishment The use of physical force with the intention of causing a child to experience pain, but not injury, for the purpose of correction or control of the child’s behavior (Strauss and Donnelly 1994)

9. The Challenge Physical chastisement/reasonable corporal punishment from abusive behaviour

10. Reality Check corporal punishment = bodily punishment

11. Current Approaches 1. Complete Abolition: as at March 2009, 24 countries have banned CP at home 2. A Matter of Degree reasonable chastisement (UK) Reasonable force (Canada) Justifiable assault (Scotland) 3. Parental Right: HK

12. How often are Children Hit by their Parents in HK? Out of 5841 students, aged 9 or above 58% expressed they had been slapped or hit before 44% admitted doing so From Study on Child-Friendly Family: Immune from Domestic Violence 2008 Cult of filial piety in Chinese society

13. How Prevalent is the Problem: Physical Child Abuse in 2007

14. Sentencing 2007 (Jan. to June)

15. Reported Judgments in 1997-2007 on Physical Child Abuse 15 cases in total 4 involved corporal punishment 3 ended in death Sentence ranged from 2 to 9 years of imprisonment in those 3 cases

16. HK Law Nothing directly on corporal punishment by parents

17. Assault Causing Grievous Bodily Harm 襲擊/ 侵犯他人致造成身體傷害 Intention: Df. Acted intentionally or recklessly (罔顧） Sufficient to prove that Df intended or foresaw that “some physical harm” might result Act: really serious harm: need not be permanent or dangerous, provided they seriously interfere with comfort or health Liable to imprisonment for 3 years

18. s. 27 Offences Against the Person Ordinance “if any person over 16 who has the custody, charge or care of any child wilfully assaults, ill treats, neglects, or abandons a child in a manner likely to cause unnecessary suffering or injury to the child’s health shall be guilty of an offence”

19. Other Common Law Offences Murder manslaughter

20. Before the Courts

21. HKSAR v. Takahashi Koyo and Chu Wing Hon皮 篋 焗 死 子 父 母 悔 一 生Sing Tao News Sept. 26, 2006

23. Charge: manslaughter; pleaded guilty Sentence: mother 2 years; father 18 months Death was “unintended”, “undesired consequence”, no malice “chose to discipline” “inappropriate correction” Mother: her intentional wrong was greater than husband Father’s “important support and sense of security to the young child” (implicit endorsement of probation officer’s report)

24. HKSAR v. Lam Lui-yin and others (2005) Charge: ill treatment or neglect of child, s. 27 of OAPO Child: 2 years and 4 month old, one of triplets Born prematurely, with heart and lung problem Died with 32 bruises, 30 abrasions Cause: severe head injuries

25. Beat with wooden ruler, leaving two of the bruises on D’s thighs On those two: not sufficient to constitute wilful ill treatment Unless routinely or regularly done (para. 116) But no evidence to prove that Squeeze his cheeks when he refused to brush his teeth leaving bruise marks on his face Judge found “excessive degree in order to chastise and discipline when he was ‘naughty’” (para. 5 sentencing)

26. Parents: admitted beating the D whenever he was naughty Claimed ‘no more than ordinary force’ Ct: “not overlooking or making light of the difficulties” the mother faced D was more difficult than the average child (para. 7 sentencing) Understandable that she felt “frustrated and enraged” when D refused to eat and vomit Sentence to 2 years imprisonment Df’s remaining children: a relevant factor in sentencing (para. 27 sentencing)

27. HKSAR v. Lam Wai Man 1999 Cruelty to child and manslaughter 9 years imprisonment Died with serious brain damage Mother caned the child when he was naughty and disobedient, at the time of death 21 months old Did not follow doctor’s advice to go to emergency > manslaughter and gross negligence

28. Lower Courts: Magistrates

29. Headline Daily Nov. 1, 2006 p.4

30. HKSAR v. HO (2007) Demanded 14 year old son to do rope skipping 1300 times a day Running for 50 laps, stretching legs muscle 1600 Canned his son when he lied that he had done so Admitted assault Sentenced to one year probation Out of good intention: son had poor health; lost control when found out son had lied

31. HK HeadLine April 18, 2009 p.2 31

32. Analysis Intention of parents reasonable degree of punishment BUT

33. United Nations Convention on the Rights of Children Article 19 States Parties shall take all appropriate legislative, administrative, social and educational measures to protect the child from all forms of physical or mental violence, injury or abuse, neglect or negligent treatment, maltreatment or exploitation, including sexual abuse, while in the care of parent(s), legal guardian(s) or any other person who has the care of the child.

34. Article 3(1) In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.

35. Analysis Parent centered rather than centre on needs or welfare of children Presumption is that it is a privilege of parents “privilege of discipline” (Chen 2007) Parents act in good faith But much abuse is the result of causing more harm than was intended or loss of self control If abuse is a continuum Healthy child growth does not need pain, any use of violence should be condemned