Freedom from all forms of violence

Violence against children is a violation of their human rights, a disturbing reality of our societies. It can never be justified whether for disciplinary reasons or cultural tradition. No such thing as “reasonable” levels of violence is acceptable. Legalized violence against children in one context risks tolerance of violence against children generally.

Louise Arbour, United Nations High Commissioner for Human Rights (as she then was)
World Report on Violence Against Children, UN Seretary-General’s Study: 2007, p. 7
(former Supreme Court of Canada Justice)

Article 19 of the Convention on the Rights of the Child (CRC) establishes a child’s right to live free from all forms of violence. Violence includes physical or mental violence, injury or abuse, neglect or negligent treatment, maltreatment or exploitation, including sexual abuse, and encompasses both intentional and non-intentional forms of harm to a child. All forms of violence should be prohibited, without exception.

Children should be recognized as rights-bearing individuals and not just victims to adequately prevent and address the multiple harms children experience. This is a paradigm shift away from a narrow focus on the child’s bodily survival with fear of imminent harm and loss of life as the primary concern. It encourages legal professionals and others to take a more holistic approach. It recognizes the many aspects of a child’s life affected by violence and holds others in the family, community and government accountable in preventing and addressing violence affecting the child. (GC No. 13 (2011), para. 11)

Canada has many laws in place to protect children from violence. However, Canadian law, policy and practice still falls short of complete fulfilment of the child’s right to be free from all forms of violence such as in the areas of mental or emotional harms. For example, s. 43 of the Criminal Code protects the use of reasonable physical corporal punishment by parents to correct children despite the Committee on the Rights of the Child denouncing the use of corporal punishment. Widespread social and cultural attitudes and beliefs that condone violence against children also continue to pervade society and inhibit the adequate enforcement of the laws in place. Protections often react to consequences of violence experienced by children rather than proactively addressing root causes. 

INTERNATIONAL LAW

A child rights-based approach to child caregiving and protection requires a paradigm shift towards respecting and promoting the human dignity and the physical and psychological integrity of children as rights-bearing individuals rather than perceiving them primarily as ‘victims’.

General Comment No. 13 (2011) on the right of the child to
freedom from all forms of violence (“GC 13”), para. 3(b)

Interpretive Sources

  • General Comments No. 13 on the right of the child to freedom from all forms of violence, 8, 9, 10, 11, 12, 14.
  • General Comment 13 serves as a valuable tool of interpretation for the scope, purpose and applicability of Article 19 and outlines that all forms of violence should be prohibited, without exception, as a child has an absolute right to full physical and psychological integrity (GC 13 para. 17). A detailed legal analysis of the content and scope of Article 19 is found at paras 17 to 58 of General Comment 13.
  • GC 8: the right of the child to protection from corporal punishment and other cruel or degrading forms of punishment
  • GC 10: children’s rights in juvenile justice
  • GC 9: the rights of children with disabilities
  • GC 11: Indigenous children and their rights under the Convention
  • GC 12: right of the child to be heard
  • GC 14: the right of the child to have his or her best interests taken as a primary consideration

Canadian Law

Case Law

  • Canadian Foundation for Children, Youth and the Law v. Canada (Attorney General), [2004] 1 SCR 76: Whether s.43 of the Criminal Code and the defense for parents and teachers using reasonable physical force to discipline children offended ss.7,12 or 15(1) of the Charter. The Court found that s. 43 was constitutional. In the analysis, the Court looked at articles 19, 5 and 37(a) of the CRC. Paragraphs 32 to 34 of the decision cite the CRC, Article 19 and other international human rights obligations as part of the Court’s analysis.
  • M. (M.) v. United States of America, 2015 Carswell Que 11505: The minority cites Article 19 of the CRC and Canada’s ratification of the CRC as evidence that “protecting children from harm is a universally accepted goal”. Although the majority referenced the CRC and the importance of giving careful consideration to the best interests of a child who may be impacted by a parent’s extradition, the Court nonetheless upheld the extradition of the mother despite the serious consequences to the children, citing, inter alia, the importance of complying with Canada’s international obligations to its extradition partners.
  • R. v. Fox, [2002] O.J. No. 3548: Used Article 19 of the CRC as principle in determining the sentencing of an individual charged with possessing child pornography.
  • R. v. W. (J.), 2007 BCPC 55: Accused was charged with sexually assaulting his daughter. Daughter was to be witness at the trial and was 13 at the time. Crown brought application that child be permitted to testify outside of court by closed circuit television and be allowed to have support person of choice present. Court cited Article 19 of the CRC as an aid to interpretation of relevant domestic legislation.

Additional Cases

Case Law – International

  • State v. Noimbik (Papua New Guinea, January 3 2007): The Court felt bound to apply domestic legislation regarding sanctions for physical abuse of children, but urged the State to enact legislation that imposes harsher sanctions pursuant to Papua New Guinea’s international obligations under Article 19 of the CRC.
  • Siliadin v. France (European Court of Human Rights, July 26 2005): The Court found that France had violated its obligation to protect vulnerable populations from modern forms of slavery pursuant to Article 4 of the European Convention on Human Rights, and cited Articles 19, 32 and 36 of the CRC in support of the assertion that children are vulnerable populations that must be protected from exploitative work.
  • Mubilanzila Mayeka and Kaniki Mitunga v. Belgium (European Court of Human Rights, October 12 2006): The Court found that Belgium had violated its obligations under the European Convention on the Protection of Human Rights and Fundamental Freedoms in detaining and deporting a five year old child, and cited Article 3 of the CRC in emphasis of Belgium’s obligation to act in the best interests of the child and reunite her with her mother.
  • Minors in Detention v. Honduras (Inter-American Commission on Human Rights, March 10 1999): In examining Honduras’ practice of imprisoning children for minor offences in adult prisons (and subsequent physical and sexual violations of these children), the Court emphasized the obligations under the CRC to protect children from all forms of violence (Article 19), especially their rights under Article 37 to be protected from unfair, inhumane and degrading treatment when deprived of liberty.
  • People of the Philippines v. Jose Abadies y Claveria (Supreme Court of the Philippines, July 11 2002): In the affirmation of the Court’s decision to impose an additional fine on the accused for sexually abusing his daughter (to pay for her rehabilitation services), the Court cited the CRC as the basis of the need for special care and protection of children because of their vulnerability, and in particular, the obligation under Article 39 to ensure the physical and psychological recovery and social reintegration of abused and exploited children.
  • W.J. and L.N. (Minors suing through their guardians, J.K.M and S.C.M) v. Astarikoh Henry Amkoah, J Primary School, the Teachers Service Commission and the Attorney General (High Court of Kenya, May 19 2015): In determining whether the sexual assault of two school children by their teacher constitutes a violation of their rights to dignity, health, and education, the Court found that while the new Kenyan Constitution was not in place at the time the violation occurred, the Children Act (in force at the time of the violation) incorporates the CRC into domestic law, and the sexual assault was a violation of the complainant’s rights under the CRC.
  • Groupe de Travail sur les Dossiers Judiciaires Strategiques v. Democratic Republic of Congo (African Commission on Human and Peoples’ Rights, July 20-24 2011): The Court cites the CRC as support for the prohibition of the death penalty on minors, including child soldiers.
  • Twyon Thomas v. Attorney General (High Court of the Supreme Court of Judicature [Guyana], June 17 2011): The Court found that the detention and torture of a 14 year-old suspect, without special protections put in place, is a violation of CRC Articles 2, 3, 37, and 40 (the CRC is incorporated into the Constitution in Guyana).
  • C.K. (A Child) (through Ripples International as her guardian and next friend) and others v. Commissioner of Police / Inspector General of the National Police Service and others (High Court at Meru [Kenya], May 27 2013): The failure of state police to conduct proper investigations into the claims of multiple girls who had suffered alleged sexual abuse was held to be a violation of the girls’ rights under CRC Articles 2, 4, 19, 34, and 39.
  • A v. United Kingdom (European Court of Human Rights, September 23 1998): The Court was dealing with the issue of corporal punishment by parents and found that the UK had failed to effectively keep its citizens safe from harm and inhumane treatment pursuant to Articles 19 and 37 of the CRC (Note: the Court did not necessarily hold that all forms of corporal punishment are inacceptable).

Special Considerations

  • A child rights based approach to child protection treats the child as a rights bearing individual rather than primarily as a victim: you can promote the child’s human dignity and physical and psychological integrity and take a broader view of the child’s protection and well-being – beyond bodily survival.
  • When dealing with child clients or witnesses, the intersection of Articles 3, 12 and 19 should be considered. For example, promoting children’s participation and voice should be considered in tandem with the right to protection from harm and best interests of the child. Care should be taken not to re-victimize children or open them up to other forms of harm. An example of analysis/argument is R. v. W. (J.),  2007 Carswell, BC 509, 2007 BCPC 55.).
  • Many Canadian jurisdictions have begun to make use of Child Advocacy Centers, where a child victim of abuse may be brought to receive interdisciplinary services in a child-friendly environment. Child Advocacy Centers provide a safe environment for children to: give their statements to the police and to social services; receive medical assessments by SANE nurses; obtain psychological and psychiatric services, etc. See, for example:

Practice Essentials

Resources