The Nordic Committee for Human Rights
NCHR
For the protection of
Family Rights in the Nordic countries
THE EFFECTS OF THE SWEDISH
ANTI-SMACKING LAW - CONSULTATION PAPER.
|
|
Ms Justice Mary Laffoy,
High Court.
Four Courts,
Innsquay
WHEN
PARENTS BECOME VICTIMS
THE SWEDISH
LAW ON THE ABOLITION OF PHYSICAL PUNISHMENT OF CHILDREN - PARENT AND
GUARDIANSHIP CODE OF 1979 Chapter 6,
section 1
This paper was produced in
anticipation of the Irish Government's consultation paper on the discipline of
children by their parents.
Summary of main points
• The Swedish law on the abolition of the physical punishment of
children has resulted in hundreds of normal parents being harassed by the
police and social authorities, prosecuted, sentenced and criminalised, because
they have smacked their children for bad behaviour.
• The claim made by EPOCH (End Physical Punishment of Children) that
only one Swedish parent has been prosecuted for smacking a child since 1979 is
far from the truth. In reality, there have been hundreds of cases, but they are
difficult to trace because they appear alongside cases of assault and battery.
• While having the appearance of being altruistic and humanitarian, the
1979 law has led to unwarranted interference in private and family life, and has
caused serious damage to the relationship between parents and their children,
to the detriment of the family.
• Before the Bill abolishing the physical punishment of children was
presented to the Swedish Parliament, several leading lawyers expressed strong
misgivings. Their fears that the law would lead to prosecutions of parents who
employed mild physical sanctions, while doing nothing to reduce the number of
cases of genuine child abuse, have materialised.
• Parents belonging to ethnic minorities and parents with strong
religious convictions, in particular, have been victimised under the 1979 law.
• The social authorities and the courts enforce the law concerning the
child's right not to be subjected to physical punishment, irrespective of what
the child has done. Many Swedish parents are therefore afraid of their children
and dare not correct them for fear of being reported to the police, indicted
and fined or sent to prison.
• The law against physical punishment does more damage to children than
a smack from a mother or father. When the authorities intervene in the life of
a well-functioning family, its life is destroyed. There is nothing that can
mend the resulting hurt, pain and bitterness, and the children are the losers.
• When children are removed from their supposedly 'abusive' parents and
taken into care, they suffer the torture of forced separation from parents,
brothers and sisters, and other relatives and friends. They are also exposed to
the risk of real abuse. Such children are frequently subjected to physical,
mental, and even sexual abuse, but social workers seldom listen to the
complaints of children in care.
• The 1979 law has caused incalculable damage to countless families
where allegations have been made and investigations carried out, even where the
charges have been dropped at an early stage.
• The law has given rise to cases where children have accused their own
parents of ill-treatment, without appreciating the consequences of their
actions. The public prosecutor then takes over the case and may pursue it even
where the parents deny any abuse and where children withdraw their accusations.
In this way, the legislation has been directly responsible, not only for the
destroying relationships between parents and children, but also for the
break-up of many marriages and families.
The damage caused by this legislation is so serious that it should not
be followed by any civilised country. Rather,
WHEN
PARENTS BECOME VICTIMS.
Introduction
I, the undersigned
Ruby Harrold-Claesson, LL.M, am a lawyer in private practise in Gothenburg
In February 1999 I
wrote a paper concerning the above mentioned law and sent it to the British
Government because according to information from Families for Discipline,
the said government was due to publish a paper on the discipline of children. I
am now in possession of the British Government's consultation paper.
During a visit to
Unfortunately,
information about the innumerable cases where parents in
About the law
The Swedish law
abolishing physical punishment of children - called the Anti-smacking law - was
passed in 1979 to commemorate the UN Year of the Child. The law was said to be
a "primarily a valuable pedagogical support in the efforts to convince
parents and others that no forms of violence are allowed to be tools in the
raising of children." ( .. främst
som ett värdefullt pedagogiskt stöd i strävandena att övertyga föräldrar och
andra om att inga former av våld får vara medel i barnens fostran).
Instead, the law
has resulted in hundreds of normal parents being harassed by the police and the
social authorities. Some parents have been prosecuted in the Courts, and
sentenced and thus being criminalised, because they have smacked their
misbehaving children.
In my judgement,
the law against physical correction of children is a violation of people's
private and family life, thus being a violation of basic human rights.
In 1992 the chief
of police in Umeå, Sören Alfredsson and I, the undersigned Ruby
Harrold-Claesson, referred
The
One of the cases
that I had reported to the European Commission - The Refugee mother case- was
the subject of the tenth annual moot-court competition, The Sporrong-Lönnroth Prize, ¹) for the Nordic countries held in
The case for the
competition was presented as a hypothetical case in Hjo, a little town near the
lake Vättern in the Province 'Suspect', as follows: Gizzur Bluetooth and his
Finnish wife Riisa, had two children, Rosa born in 1979 and 'Kalle' born in
1985. The parents were Christians and they followed the Bible-teachings
"whom the Lord loveth, he chastiseth". The parents therefore used
different methods to correct their 'delinquent' e.g. smacking the child or
locking him or her in the tool-shed for half an hour or so. One day,
_________________
¹) The
Sporrong-Lönnroth Prize, was founded in commemoration of the first two applicants
to have won a Human Rights case against
²) Prof. Jacob W.F. Sundberg, University of Stockholm,
professor in Philosophy of Law and International Law, was the President of the
Sundberg Commission and official reporter to the European Commission for Human
Rights. He has issued several volumes on Human Rights in
On
³) Please see picture postcard taken at
UN Conference on Human Rights
Because of the
damages that the anti-smacking law has inflicted on so many families in
EPOCH
In December 1991,
EPOCH (End Physical Punishment of Children) launched a campaign in
According to
EPOCH's brochure, only one Swedish parent has been prosecuted for
smacking a child since 1979. That is several hundred cases far from the truth.
A list of some cases will be found as an appendix to this paper. The list is
necessarily incomplete due to the difficulty in tracing such cases in Court
records, where they all appear under assault and battery.
The Anti-smacking law
The Swedish law
reads: "Children are entitled to care, security and a good upbringing.
Children are to be treated with respect for their person and individuality and
may not be subjected to physical punishment or any other humiliating
treatment".(Parents and Guardianship Code, Chap. 6, article
1)(Föräldrabalken 6:1)
The law ranks all
physical punishment of children i. e a slap on the hand, on the cheek or on the
bottom, as assault and battery. Sending children to their room is regarded as
"other humiliating treatment".
At a first glance,
the law may appear altruistic, demonstrating care and humanity towards the
younger generation. However, it has resulted in serious interference in
people's family and private lives, and has damaged the relationship between
parents and children - to the detriment of the family. The social institutions
have, in many cases, unnecessarily taken over the parents' responsibility for
their children and thus broken up their families.
Swedish cultural
patterns do not support the Family as an institution. In
THE TRAVAUX PREPARATOIRES
Before the Bill
abolishing physical punishment of children in
The State prosecutor (Riksåklagaren) commented: "One can wonder if the law, even in
future, ought not to leave space for a difference between children and adults
when it is a question of judging physical punishment or other humiliating
treatment. This could be achieved by adjusting the contents of the proposed law
so that the child should not be subjected to physical punishment or other
humiliating treatment of a kind, which is punishable under the penal code. Thereby
we would point out that treatment not deemed criminal or worthy of being
criminalised would be clearly exempted. In
the first place I am not at all referring to cases of abuse, but rather to the
fact that many cases of treatment, which would be humiliating for an adult, and
thus punishable under the law, must be accepted by children.... As far as I
have understood the proposed Bill it is not primarily aimed at increasing the
rate of criminalisation, but rather as a codification of the views which
are prevalent in the society. It would be most unfortunate for the
law-enforcing authorities if the proposed Bill should open a pipeline of police
reports which lead to nowhere."
The Regional Prosecutor in Östergötlands remarked:
"For my part, I do not think that this law will have the effect of
reducing the number of cases of child ill-treatment. I do not think this law is
going to have any effect at all. (...) I could imagine as a possible negative
effect that, in the future, people are going to run to the police with reports
about child abuse both in urgent and in non-urgent cases, now that there is a
law which says, that children must not be physically punished in any way. This
will lead the police and prosecutors to investigate a greater number of cases than
before and even in many cases where there is no reason for an indictment. Such an effect of an extended possibility of accusation is
undesirable and many unjustified police investigations will certainly have very
negative consequences for the children in many cases."
Cabinet Minister Gabriel Romanus also expressed
several reservations. He wrote: "What we in everyday language call child
abuse is a serious evil which society should use all its efforts to combat...
However, the gap between real child ill treatment and the slight bodily
corrections, which can arise in child rearing is wide. Some of these acts can
not even be classed as battery at a lesser degree (minor assault) such as
appear in the penal code." He continued, "From what has been brought
forward during the period of consultative opinions, it would certainly be most
unfortunate if the State could intervene and prosecute and punish every, let it
be so tiny, breach of the prohibition of physical punishment."
EXTENSION OF THE PENAL SPHERE
The apprehensions
of the State Prosecutor and the Regional Prosecutor in Östergötland have
materialised. The Swedish law on the abolition of physical punishment of
children has given rise to a series of court cases where "normal Swedish
and immigrant parents" have been, and still are being prosecuted because
they take their parental responsibility, and correct their children -
physically where necessary. The "anti-smacking Law", which regards
all physical punishment of children as assault and battery has, in fact,
extended the domain of The Penal Code.
It should be noted
that the law particularly targets immigrant parents and parents belonging to
religious convictions. The National Board of Welfare (Socialstyrelsen) pointed
out that the information to the immigrants must be clear and unequivocal that
no immigrant will not be able to avoid prosecution by referring to the
child-rearing practices in his home country, where parents smack their
children. The Board also appealed for
information for the religious groups who systematically use "loving
smacks" in bringing up their children.
The Standing Law
Committee declared that "The Law (prohibiting smacking) therefore removed
the uncertainty that has prevailed following the legislation reform of 1966 as
to whether or not lighter hands-on corrections of children is punishable when
it is performed by the custodian, and which has been expressed inter alia in
the (..) verdict from 1975." (Bestämmelsen
(om agaförbud) undanröjer således den osäkerhet som efter 1966 års lagändring
rått om i vilken utsträckning lättare, handgripliga tillrättavisningar av barn
är straffbara, när de företas av vårdnadshavaren, och som kommit till uttryck
bl.a. i den ovan nämnda domen från år 1975.)
The Committee
continued: "First and foremost, bodily punishment means the infliction of
bodily damage or pain upon the child, even if it is very slight or quickly
forgotten. The focus is on the use of violence as a means of punishment, i.e. a
measure directed at the child for something that he did or did not do."
(Med kroppslig bestraffning menas främst handling som
medför att barnet tillfogas kroppsskada eller smärta, även om störningen är
helt lindrig eller hastigt övergående. Det är endast användande av våld i
bestraffningssyfte som avses, dvs åtgärder som riktas mot barnet i efterhand,
för något det gjort eller underlåtit.)
On
From what I can
see the fears of the sceptics have been confirmed.
Public Opinion
In September 1991
a SIFO-poll showed that 35 % of the Swedish mothers who were interviewed,
deemed it right and proper to smack their children. A further 35 % were thought
to hide their views on the subject.
However, social
workers and the courts enforce the law concerning the child's rights not to be
subjected to physical punishment, irrespective of what the child has done. The
law has thus given rise to absurd situations. Many Swedish parents are afraid
of their children and dare not chastise them because they know that they can be
reported to the police, indicted and fined or sentenced to prison.
Swedish youths
born during and after the 1970s are often provocative, loud and rowdy,
uncontrolled and uncontrollable. The Swedish Embassy in
Radio and Newspaper debates
In March 1992, I
started a radio debate on "Child upbringing in
The European Commission on Human Rights
Judging from the
number of indictments and judgements I have in my possession, there has been hundreds
of cases, where normal parents have been prosecuted, fined or sentenced to
prison for child abuse or have been very close to being prosecuted, for trying
to discipline their children. Some of these cases have been focused on in the
media.
In such cases, the
children are almost invariably taken into public care and separated from their
"abusive" parents. In order to ensure the protection of the children
the social workers limit the visiting rights of the parents and their children.
It should also be noted, that the real problems for the children start when
they are separated from their parents and placed in foster homes. There, the
children are often abused, both mentally and physically - even sexually - but
the social workers seldom listen to the complaints of children in care. The
forced separation from parents, brothers and sisters, other relatives and
friends and being placed in new surroundings is abusive in the extreme.
Because of this
absurd state of affairs, Sören Alfredsson and I filed a complaint against
The Inquisition
I am therefore
urging the Irish Government to take heed to the concrete evidence presented
here concerning the situation of parents and children in
The fact of the
matter is this: Children have been informed of their rights and so they use
their rights to demand more freedom to do as they please. They report their
parents in the aim of obtaining freedom, unaware of the consequences of their
report to the social authorities or the police. Their aim is not at all to see
their parents charged and sentenced - perhaps to prison. When the children
realise the seriousness of their accusations they try to withdraw them, but
they are held to their stories - without any consideration of the damages that
the children themselves incur. The social authorities, police and prosecutors
are all too willing to assist the children in ruining their relationship with
their families and their future lives. By proceeding with the prosecution of
the parents, the authorities expose the children to unnecessary mental torture.
The resentment
that the parents feel towards their children whose unacceptable behaviour was
the direct cause of the charges against the parents, has resulted in the loss
of normal, loving parental guidance for these children. The guilt felt by the
children has also seriously damaged the parent/child relationship.
The stress and
strain that the prosecution of the parents and the taking of their children
into public care have caused the break-up of many of the families involved.
Most of the parents involved in these cases divorced during the time they were
being prosecuted for having physically punished their children. Several have no
contacts at all with their children due to the damage caused by the actions
against their parents.
All this prompts
the following questions:
1 - Why is it
deemed such a pressing need to 'free' children from responsible parental
guidance?
2 - Why is the
ideal parental role - that of the laissez-faire parent - so different from that
which existed only a few decades ago?
3 - Who stands to
gain from the new cultural norms and to which end has this been implemented?
The answer to
these questions may lead to other questions of extreme importance for our views
on children and the process of socialisation. For example: How can we change
the cultural norms that work in disharmony with other norms and which put
people into conflict with each other or contribute to the rise of problems in
society?
I have compiled a
dossier of 25 cases - representing fifty percent of the cases that I have collected
for my thesis. They are spread out over time from 1978 - 1999. My examination
of the cases shows that in 15 of the 25 cases in the dossier, the parents
involved are immigrants. The remaining ten parents are intellectuals,
practising Christians and people with traditional beliefs.
As I mentioned
earlier, these cases are very difficult to find because they are all masked
under the heading 'assault and battery' - a category of cases which is very
prevalent in
A paper similar to
this one was sent to the British Government in January 1999.
The consultation
paper presented on
The children's
lobby is demanding a total ban on corporal punishment of children. Their views
however, are not supported by scientific findings. The lobbyists and the
experts that they forward to support their cause are ideological advocates first and scientists
second.
I would therefore
invite the Irish Government to visit http://www.nkmr.org/english
where the following articles are published:
1 - Destroying the Family:
Swedish style by Eric Brodin (published in the Washington Inquirer, was excerpted from Eric Brodin's
address given to the Eagle Forum's Annual Conference,
2 - Taboos - smacking
parents by James Heartfield (published in the June 1999 issue of LM
magazine.)
3 - How to control
adults by means of children's rights by Lynette Burrows (HUMAN LIFE
REVIEW, Vol. XXV, No. 2, Spring 1999)
4 - Angels
of Antichrist by Peter Klevius (Issues of Child Abuse
Accusations, Spring 1996.)
In closing I quote James Heartfield in his June
1999 article: "The consequences of
I am willing to put my research including the 25 cases that I have
mentioned above at the service of the Parliamentary Commission on Child
Abuse.
Ruby Harrold-Claesson
Lawyer,
President of the NCHR.
Report
from The Family Education Trust, London,
By Lynette Burrows
Smack of the
Nanny State?
By James Kay
Head to head: Smacking
BBC News
Sweden and The BBC
FYC News article
Why
smacking should not be banned
By Norman Wells
Sweden's
smacking ban: more harm than good
By Robert E Larzelere
Smacking
and the Law - a European Perspective
By Ruby Harrold-Claesson
Confiscating
children: When parents become victims
By Ruby Harrold-Claesson