Where is the limit? Great uncertainty about the use of force against children

Regardless of whether you use force against children to teach them right from wrong, show concern or punish them, there are often great uncertainty about which rules apply. This goes for parents, teachers, foster parents and staff at children’s care homes, who, in different kind of situations, use force against children.

The rules may be misunderstood and in some cases even misused. This is illustrated by a series of cases handled by the Danish courts in the last few years. These cases have been analysed across legal fields by two researchers in children’s rights and criminal law respectively; Caroline Adolphsen and Nicolaj Sivan Holst from the Department of Law at Aarhus BSS. 

Dad punished for getting son with ADHD to leave public swimming bath

In the so-called” Swimming bath verdict” from 2014, a dad was sentenced conditionally for grabbing the arm of his reluctant son, who refused to leave a public swimming bath which was about to close. The boy, who is diagnosed with ADHD, gets bruises on his arm, perhaps because he struggles to get free. Shortly before this happens, a swimming coach also tried to get the boy out of the swimming pool. The mother reported the incident, and the Eastern High Court finds the father guilty of violence against his own son.

In another case, the “Tape verdict” from 2004, two teachers restrain a highly agitated boy suffering from autism and tape his mouth shut to get him to calm down. The case is reported, but the two teachers are acquitted in the district court and the high court, because the teachers did not intend to harm the boy, but only wanted to help him calm down. According to the courts, it was a mitigating factor that the two teachers were not themselves agitated, but were in complete control of the situation.

Researchers: the lines are blurred

While parents are allowed to use force in order to raise and protect their children - as long as we are not dealing with violence or abuse -, public authorities and care workers must be legally authorised to do the same. However, the above examples show that in both cases, problems may arise when the incidents are reported and end up in the courts.

“The ‘Swimming bath verdict’ is a frightening example of a case which should never had ended up in the criminal law system as we always need to consider the alternative to using force. In this case, the father’s alternative to using force in order to get his son to leave is to abandon his son in a swimming bath which is about to close. So in actual fact, he had no alternative, but the verdict can have far-reaching consequences for the father,” Caroline Adolphsen and Nicolaj Sivan Holst argue and add:

“Strangely enough, the case was not discussed nor problematised by the public at the time of the verdict. But it is very much a discussion that we should be having. The reason is that in future similar cases, the district court is obliged to comply with the verdict of the high court. Thus, we might be seeing similar verdicts.”

Punishment, protection or upbringing

In their research articles, the two researchers note that the applicable law differentiates between three different reasons for using force: 1) punishment, which has been illegal since 1997 when the right to inflict corporal punishment was abolished. Punishment may have consequences in the social courts or even in the criminal courts. 2) protection, where parents use force to prevent the child from playing with a knife, running into the street, climbing a tall tree or to get the child into a snowsuit to protect the child against the cold. If the parents fail to live up to their responsibility in these cases, it may be regarded as neglect, and 3) upbringing, where the purpose is to regulate the behaviour of the child, e.g. by making him or her sit still at the table. Typically, it is in these latter cases that it may be unclear whether the parents have crossed the line and where incidents are reported.

However, according to the researchers, most of the time there is little doubt whether or not the parents have actually broken the law. And often it is a question for the social rather than the criminal courts. But when such cases end up as a criminal case, the “Swimming bath verdict” shows that it can go terribly wrong. According to the researchers, one solution could be to evaluate the cases from more than one perspective:

“In order to evaluate the legality of e.g. parents’ use of force, it would be a good idea in the future to always consider the background of the case, its coherence and context and not least to evaluate the case from more than just one legal perspective. If not, we will probably see more sad cases similar to the swimming bath case where the verdict seems out of proportion,” argue Nicolaj Sivan Holst and Caroline Adolphsen.

Difficult for authorities to know when to interfere

The uncertainty can have serious consequences for particularly public authorities such as children’s care homes. Here, the researchers also offer a solution:

“It should either be completely illegal to use force against children, or it should be decided that sometimes the practical reality may call for the use of force. Here we recommend that you either introduce some kind of written authority stating that force may be used to a necessary degree or that you regulate down to the smallest detail.”

“Because if the courts and the criminal law experts are uncertain, how can we expect a municipal caseworker to evaluate cases of force used against children? It can be difficult to know when to interfere,” Nicolaj Sivan Holst and Caroline Adolphsen point out.

Further information

Caroline Adolphsen
Researcher in children’s rights and chair of the UNCRC Policy Center - "Hope For Children”
The Department of Law, Aarhus BSS - Aarhus University
Email: ca@law.au.dk
Tel.: 8716 5479

Nicolai Sivan Holst
Researcher in criminal law and member of the UNCRC Policy Center - "Hope For Children”
The Department of Law, Aarhus BSS - Aarhus University
Email: nh@law.au.dk
Tel.: 8716 5931

The two research articles on the topic (“Forældres magtanvendelse over for børn” and “Magtanvendelse i danske skoler og dagtilbud”) have been published in the Danish weekly legal journal “Ugeskrift for Retsvæsen” and in the Nordic journal of social law “Nordisk Socialrättslig Tidskrift”. Among other things, the articles are used by the National Board of Social Services in their teaching in the municipalities.