Final Report to Provincial Advisory Committee On Child Abuse
Sub-Committee on Excessive Discipline and Child Abuse

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Dennis H. Schellenberg, M.A., M.S.W.

A. Mandate of Sub-Committee

In the Fall of 1992, the Provincial Advisory Committee on Child Abuse (PACCA) established the Sub-Committee to:

1. Examine issues of excessive physical discipline of children and assist PACCA in its role as a recommending body to Government on this issue.

2. Recommend to PACCA a course of action on this issue that may involve recommendations to Government in the areas of legislation, practice standards or public discussion.

Although the field of child welfare has always had a practice concern about when does physical discipline of children become child abuse, that concern was heightened in the Fall of 1992. The MK case had been heard by the Manitoba Court of Appeal with the father in that case being acquitted even though he had physically injured his child in the course of administering corporal discipline. This decision by the Court received wide public attention through the print media and caused PACCA to strike the Sub-Committee to review the issues.

B. Process

The Sub-Committee has met on several occasions to consider the issue at hand. It was agreed that there was significant need for research as to frequency of the use of corporal punishment and public attitudes towards it. There was also a felt urgency in understanding how care giving organisations which are publicly funded respond to the issue of physical discipline in policy. The Sub-Committee Chair wrote to all public School Divisions during the Spring of 1993 requesting information about their policies on the use of physical discipline in that School Division. In addition, the Sub-Committee had lengthy discussions about the possibility of administering a survey to a random sample of grade 3 students in the Province to get a better understanding of frequency patterns along the lines of rural/urban, cultural/religious attitudes as well as other variables deemed to be informative.

C. Results

1. School Division responses: Of the 59 survey letters sent out to public School Divisions, the Sub-Committee received 43 responses, as response rate of 73% which, of course, is very good. Of the responses received, it was noted that 10 of the School Divisions still permitted corporal punishment in some form. This result was 23% of respondents. The rest of the respondents had disallowed this form of punishment completely. It should be noted that those Divisions where physical discipline was still permitted all had rigid rules around how this was to be administered and all involved a high degree of accountability through approvals, etc.before it could be done. Some of the Divisions who responded, while advising that corporal discipline was still permitted in their Division, also advised that this permission was under review by their Board of Trustees and that it had not actually been administered in many years.

2. Survey of School Children: It was felt that in order to approach randomly selected School Divisions to survey grade 3 students, the Sub-Committee would require the support of Manitoba Education and Training. The response from Manitoba Education and Training was not supportive of a survey of children but did recommend surveying parents. Funding a survey of that type also became an issue so that initiative was terminated.

However, coincidentally, Dr. Joan Durrant of the Department of Family Studies, University of Manitoba, had organised a survey of parental attitudes towards physical discipline as part of the Winnipeg Survey conducted during the Summer of 1993. While, this survey did not address all the variables the Sub-Committee had discussed, it did give a general sense of parental attitudes in Winnipeg. In that survey of 526 respondents, 23.6% viewed corporal discipline as never appropriate in any circumstance. This left 76.4% of respondents believing that corporal discipline was appropriate in certain circumstances. According to Dr. Durrant, this percentage is consistent with findings in other surveys conducted in North America over the last tenyears. The Sub-Committee was able to review the details of these findings from the Winnipeg Survey.

D. Discussion

A fairly clear conclusion from the Sub-Committee's review and from previous research is that corporal punishment still remains an acceptable practice among the largest majority of parents in our society. There are even School Divisions which have not as yet abolished this practice of responding to children's behaviour. Section 43 of the Criminal Code of Canada permits the use of "reasonable force" by parents or those in loco parentis. Unfortunately, there is no standard interpretation by the Courts as to how that Section is to be viewed in each case where care givers are charged with injuring a child in the course of physical punishment. The MK case in the Manitoba Court of Appeal is a reflection of that. This still leaves child welfare practitioners with the onerous duty of deciding in each case of this type whether or not abuse has occurred.

Criminal law was under review by the Children's Bureau in Ottawa in the early days of the Sub-Committee's deliberations. No report of that activity is available at the time of this drafting. Various legal and children's rights organisations in this Province and elsewhere have also undertaken similar reviews. The Institute for the Prevention of Child Abuse, in the Spring of 1995, publicly advocated the abolition of Section 43 of the Criminal Code. The European experience of banning corporal punishment in civil law is being reviewed seriously to assist legislators in their deliberations on this matter. In fact, Dr. Joan Durrant of the University of Manitoba, has spent her recent sabbatical leave in Sweden studying that country's experience with the abolition of corporal punishment. She returned in June, 1994 and hopes to publish her study. She addressed PACCA on her return from Sweden and documented the experience of that country.

There is, however, no escaping the reality that most parents in our community believe that corporal punishment is acceptable. No matter what the professionals in child care believe and no matter what the research tells us about the lack of effectiveness of this form of punishment, our population uses corporal punishment as a means of disciplining children. Many, however, draw the line at physical injury to a child believing that to be abuse.

E. Recommendations

The Provincial Advisory Committee on Child Abuse is advisory to four Departments of Government, namely, Family Services, Health, Education and Training and Justice. Therefore, any recommendations flowing from this sub-committee's deliberations needs to be viewed as addressing issues of legislation, policy or practice guidelines in all of those Departments. Having said that, the sub-committee also recognises that one its key tasks was to assist child protection staff in the development of practice standards.

STATEMENT OF PRINCIPLE

After thorough review of research and practice as it pertains to the issue of corporal punishment, it is the view of the Provincial Advisory Committee on Child Abuse that corporal punishment constitutes assaultive parenting practice and should be abolished in law and practice. PACCA recommends to this provincial Government that it advocate with the Government of Canada for the abolition of Section 43 of the Criminal Code of Canada and make such representations to that body. Further, and pending abolition of Section 43 CCC, that this provincial Government ensure that all residents of the Province of Manitoba be advised of this view and that all parents currently using corporal punishment with children be encouraged to find alternative methods of discipline. The well-being and best interests of all children require that no person be permitted to assault children for any reason.

FIELD PRACTICE STANDARD

Advice to field staff and practice standards must first be built upon codified definitions. In the case of child welfare, that encoded authority rests fundamentally in the Child and Family Services Act. The following sections speak to the issue at hand:

Sec. 1 In this Act

"abuse" means an act or omission of a person where the act or omission results in

(a) physical injury to the child (b) emotional disability of a permanent nature in the child or is likely to result in such a disability, or (c) sexual exploitation of the child with or without the child's consent; (amended June, 1996)

Further, Sec. 17(2) of the Act illustrates when a child may be in need of protection in the following fashion:

(a) is without adequate care, supervision or control;

(b) is in the care, custody, control or charge of a person

(i) who is unable or unwilling to provide adequate care, supervision or control of the child, or

(ii) whose conduct endangers or might endanger the life, health or emotional well- being of the child,

(iii) who neglects or refuses to provide or obtain proper medical or other remedial care or treatment necessary for the health or well-being of the child or who refuses to permit such care or treatment to be provided to the child when the care or treatment is recommended by a duly qualified medical practitioner;

(c) is abused or in danger of being abused;

(d) is beyond the control of a person who has the care, custody, control or charge of the child;

(e) is likely to suffer harm or injury due to the behaviour, condition,domestic environment or associations of the child or of a person having care, custody, control or charge of the child;

(f) is subjected to aggression or sexual harassment that endangers the life, health or emotional well-being of the child;

(g) being under the age of 12 years, is left unattended and without reasonable provision being made for the supervision and safety of the child; or

(h) is the subject, or is about to become the subject, of an unlawful adoption under section 63 or of an unlawful sale under section 84.

These definitions and illustrations should form the base of any practice standard that may be put in place. Operant words in these sections as they pertain to abuse or excessive discipline are; injury, harm and aggression. These words are vague and the cause of subjective interpretation. This has been the core of the problem for field workers in their efforts to protect children who are genuinely in need of protection.

The following recommendations come in the form of a practice standard which should be affirmed to all child welfare practitioners mandated under the Child and Family Services Act. The set of mind in reviewing these recommendations must be the civil test, "on balance of probability", as opposed to the criminal test, "beyond reasonable doubt". After all, our first duty is to advise the line worker in the child and family service system as to when physical discipline becomes excessive.

1. That the Child and Family Support Branch confirm that under Sections 1 and 17 of the Child and Family Services Act, corporal punishment by a care giver of a child that leads to that child's sustaining a physical injury may put that child in need of protection due to abuse. Physical injury would be viewed as a bruise, a cut, broken bones, and/or other medically established injury and shall be viewed as grounds to conduct an abuse investigation. During the course of the investigation the following considerations and conclusions may be used:

a) There must be a determination as to the context in which the injury was sustained and the motivation of the caregiver. The motivation of the caregiver must be one of correcting behaviour or reasonable restraint. However, if the child has suffered a serious and medically established injury as a result of spanking no matter what the stated intent of the caregiver was, abuse has occurred. With less serious injuries, the context is always an important factor. With serious injuries, the context is significantly less important

b) Any injury sustained by a child as a result of discipline administered by a caregiver using an instrument is likely abuse and is sufficient grounds for further investigation.

c) In the course of determining whether or not discipline has been excessive, factors such as the age of the child, the child capacity to comprehend the nature of the discipline, any other physical impairment the child may have or any other perceived risk factors shall be considered in coming to a conclusion. The Manitoba Risk Estimation System* may be helpful in determining these factors.

2. Corporal discipline of a sustained and frequent type but which does not lead to physical injury may be grounds for a conclusion of emotional abuse if it can be shown that the child may have suffered or likely to suffer permanent emotional harm as a result of this type of corporal discipline. This is consistent with the Act.

3. That the Department of Family Services resource the preparation of a pamphlet which argues the value of seeking alternatives to corporal discipline and can be used as an information package for parents. Pamphlets of this type already exist so it may be simply a question of purchasing a supply.

4. That Judges and Justices in all Courts in the Province be issued inservicing material pertaining to this practice standard and the child protection issues with corporal punishment.

5. That the Department of Family Services support those government or non-government organisations seeking alternatives to Section 43 of the Criminal Code or those seeking a regulated interpretation of that Section which is consistent with this practice standard.

6. That the Provincial Advisory Committee on Child Abuse devise a strategy and a plan to engage child and family service Agencies and Regional Offices in the further discussion and conclusion of the Statement of Principle and the Field Practice Standard.This strategy should involve the Child Abuse Committees of the Agencies and Regional Offices and the Child Abuse Registry Review Committee.

7. That the Provincial Advisory Committee on Child Abuse deliberate on and seek further discussion with Health, Corrections, and Education and Training as to how these guidelines may and do apply to operationalizing guidelines as to reasonable restraint of children within the context of hospitals, correctional facilities and schools.

___________________________________ *The Manitoba Risk Estimation System (MRES) is an instrument to identify the level of risk for the reoccurrence of abuse or neglect, its potential severity and the vulnerability of those children affected.

Accepted December, 1995