Spanking - Parental Right? Religious Right?

Recent actions by Children’s Aid Society workers in apprehending children from parents of the Aylmer, Ontario, Church of God, has again raised the question, “Do parents have the right to spank their children?”  Whether this is a parenting issue or one where religious freedom is called up, court decisions will likely influence how Christian parents carry out their role.

Spanking has become a legal “hot button” for children’s rights advocates in the past several years.  It has come up in the context of both criminal and child protection proceedings.  It mirrors the societal shifts of opinion regarding two converging emotional and legal matters: children’s rights and violence.  On the other side of the issue are parental rights and religious principles and freedoms. 

So can parents legally spank their children?  In law, parents currently have the right to spank their children.  But then there is the troubling definition of spanking.  Is it “two swats to the buttocks with the hand” as one governmental official stated?  Or can it include a parent applying a belt, strap or switch to the nether regions of the torso, as advocated by some parenting and religious groups?  There are currently two major legal battles being waged on these issues, both before the Ontario Courts.

Aylmer Child Apprehension Case

Under Section 37 of the Child and Family Services Act (similar to Section 13 of the British Columbia legislation), a child can be apprehended, as having a need of protection, if the child has or is likely to suffer physical harm at the hand of a parent or other person.  There is no definition of “harm”, therefore leaving it to the policy and initial discretion of government agents to determine this question.  In the case of the Aylmer Church of God children, it was apparently determined that the parents’ physical discipline dictated by the teachings of the church was physical harm.  The real issue in this case seems to be whether parents are permitted to use corporal punishment (not just a hand judiciously applied to the child’s rear) in correcting their children.  It must be noted that there is no clear statement setting out that the parents do use a belt, strap or switch – and a Court ‘gag order’ currently prevents the disclosure of this information.  But what if Biblical principles dictate that if parents “spare the rod they spoil the child”?  Doesn’t this raise the issue of religious freedom versus children’s rights?  Doesn’t also mean that any person not reporting such a ‘tanning’ given by parents to a child is also guilty of an offence under the legislation (just as the failure to report the sexual abuse of a child is illegal)?  No doubt the Court in this case will be confronted with a difficult balancing act.  It may well leave many parents who suffered “out behind the wood shed” wondering about whether their own parents, not schooled in the finer points of a child’s rights, were guilty of causing illegal physical harm.

Section 43 of the Canadian Criminal Code

Although seemingly not so press-worthy, an equally difficult legal balancing act is taking place in the Ontario Court of Appeal over the right of parents to spank their children.  In that case, the Canadian Foundation for Children, Youth and the Law is threatening to strike down Section 43 of the Criminal Code.  That section permits parent (and teachers) to spank (without it being an illegal assault).

 “Every school teacher, parent or person standing in the place of a parent is justified in using force by way of correction toward a pupil or child, as the case may be, who is under his care, if the force does not exceed what is reasonable under the circumstances."

 Defending parental rights is the Coalition for Family Autonomy (CFA), comprised of Focus on the Family, Home School Legal Defence Association of Canada and REAL Women of Canada.  Although CFA “is of the view that it should no longer be considered reasonable by the courts to use objects for corporal punishment, nor to apply force to the head”, the balancing will certainly be required when considering a parent’s right to spank and the “children’s rights” and the need to protect children.  The CFA argues seven primary points:

  1. The family have the role of raising children, and state interference is a gross intrusion of that private and intensely personal relationship;
  2. Government should not intrude into the sphere of parenting decisions unless necessity has been demonstrated;
  3. A child does not have the decision-making ability of an adult, and therefore will need constraining;
  4. Parents are obliged and must determine the best way to correct a child because the parents had the child in the first place, need to teach right and wrong, and have legal responsibility for that child (note the B.C. government’s recent decision to ensure that parents retain reasonable control over their children or face the financial consequences for damage caused by those children);
  5. The Criminal Code already balances the interests of children and parents because a parent can only use “reasonable force” (a spanking is reasonable depending on the child’s behaviour, age, and character, the likely effect and result of the spanking, and the motivation of the ‘spanker’);
  6. The government can step in to protect children (such as they did in the Aylmer case) where necessary, without there being a criminal charge; and
  7. Discussion of “children’s rights” as against “parental rights” is artificial and throws the parental relationship into the legal arena as if it were simply some form of contract rather than a part of the fundamental family relationship.

These cases are ones to watch.  They may well define the legal nature of and constraints on parenting in post-Christian era.

This article was written by Robert G. Kuhn, a lawyer who practices in charity and not-for-profit law with the law firm of Kuhn LLP. It is only intended as a guide and cannot cover every situation. It is important to get legal advice for specific situations. If you have questions or comments about this case or other construction law matters, please contact us at 604-864-8877.