notes for seminar 2

7/25/2019 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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notes for seminar 2

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