Spareth the rod, hateth the child? Human rights in schools

16 July 2014

Peter Fu (Assistant Editor - School Governance)

In the lead up to a summit held yesterday in Adelaide on 'Behaviour in Australian Schools' (Summit), participants were attracting press coverage for their comments about Australian schools' current approach to disciplining children.  In a recent article in the Guardian, a University of South Australia Academic, Dr Anna Sullivan, is reported as saying that school discipline practices, such as suspensions and 'time-outs', could violate a child's human rights. Could this really be the case?  Dr Sullivan, speaking ahead of presenting at the Summit, has admitted she was being intentionally provocative in making the comments, but nonetheless, she raises an interesting point about how the rights of children are dealt with in Australian Schools.

Let's look at the legal context. There are two rights that illustrates Dr Sullivan's point - the right to education and the right to dignity. These two rights are not part of Australian law in the sense that they create legal obligations, but they are part of the body of international law that Australia has committed to following.

How do suspensions and time-outs violate the right to education?

Every child has a right to education. So it is stated, amongst other things, in the United Nations Convention on the Rights of the Child (Convention). This right recognises that children should be allowed to grow, learn, socialise and equip themselves for a prosperous future.  Although the Convention is not directly incorporated into Australian law, Australia recognises the principles it promotes.

A suspension interferes with such a right because it removes the child from school, and prevents them from attaining that education. A detention or time-out also interferes with this right as it prevents a child from socialising and interacting with other children - indisputably an integral part of a child's education.

In some instances it is clear that a child's rights could be violated when they are punished for events which might not necessarily be their fault. For example, is, as Dr Sullivan says, a detention appropriate when a child is late to school (possibly because a parent slept in?). Would it be OK to give a child a Saturday detention if they did not have the correct piece of uniform (possibly because their parents could not afford to buy it?). These punishments serve no educational purpose and impact upon a child's dignity and prevent them from learning.

A right to dignity?

It is specifically declared in the Convention that States must 'ensure that school discipline is administered in a manner consistent with the child's human dignity'. The Convention explicitly recognises that a child has a right to dignity, and prohibits the use of degrading punishments.

How far does this right go, and when is it challenged? Dr Sullivan cites the example of yelling at students, or shaming them with public charts of 'happy faces' and 'sad faces' as interfering with the right to dignity. She makes the point that this would never be acceptable in the adult workplace, and questions why we treat children in this way. There are some legitimate pedagogical ends that can be achieved by using this kind of discipline. A misbehaving child may not respond to threats of detention, but may fall quickly into line if he or she is made to look 'uncool', or embarrassed, in front of his or her peers.

That said, such methods of discipline may also have a negative impact upon a child's emotional development and have an impact upon their decisions as adults. According to National Children's Commissioner, Megan Mitchell (also a presenter at the Summit) there is a connection between current disciplinary practices used by schools and a person's emotional development.  Ms Mitchell referred to a Legal Aid NSW study which revealed that 82 per cent of the highest users of legal aid services had been excluded, expelled or suspended from school.  Ms Mitchell's comments were reported by the Sydney Morning Herald in an article addressing a record number of suspensions and expulsions being handed out by NSW schools - a trend which is worrying in the context of Dr Sullivan's and Ms Mitchell's beliefs.

The rights of the child in schools

Although a child's rights to education and dignity might appear to exist only in the background of the rest of the 'legal noise' in educational issues (e.g. health and safety, duty of care), they should still be recognised by schools as they apply a disciplinary action. Many educators know all too well that it is a legal requirement that a child cannot be suspended without procedural fairness - the right to be heard and to have a decision determined fairly. We recently wrote about how this right played out as a court battle in the case of a New Zealand school student who was suspended for not cutting his hair.

The Western Australian Non-Government Schools Registration Standards state that '[t]he dignity and rights of every student are [to be] maintained at all times'. It, like the registration requirements of many states, explicitly recognises that this is an integral part of a positive learning environment, and an important part of student welfare.

How schools should balance these rights

Accepting that a child has certain rights, and accepting that there are legitimate teaching purposes to curtailing these rights, we are then left with the issue of how to reconcile these two propositions. Where does the balance lie, and how do schools achieve and implement this?

First, schools should recognise that their overriding purpose is to educate, and that punishment is a tool that should be used as a last resort to meet the education needs and welfare of students. Punishments should always be administered appropriately and in proportion to the offending behaviour.

Second, punishments should take into consideration the rights of all children to learn. A child who is disruptive detracts from the learning of others, and can be rightly removed for doing so. However schools must also consider the impact disciplinary action is having on the misbehaving child as well.

Third, schools should ensure that they are considering the right factors in reviewing and formulating disciplinary policy and procedure. Such factors include:

  • Does that penalty fit the crime? That is, will the penalty have some educational value or is it purely punitive?;
  • Is the consequence proportional? A week-long suspension would be clearly inappropriate for a minor infraction; and
  • Does our policy have regard to the overriding purpose - that the child should learn something from the experience?

Final thoughts

Schools are not legally required to follow the rights and obligations set out in the Convention but they do have to respect these rights as they are supported by Australian school registration regulations and procedures.  A child also has the right to refer to the Convention in a complaint to the Human Rights Commission in the event that they feel that their rights under it have been breached, but the Convention itself is not legally enforceable in Australia.

What does this all mean?

Ultimately, schools, teachers and principals are the experts in this area, and their judgment should be trusted in formulating the right policy for their school. However, this judgment should be tempered with the considerations we now know to be reasonable and sensible. It was, for instance, not that long ago that corporal punishment was seen as a fitting punishment for children.

What do you think? Does considering the UN Convention on the Rights of the Child in school policies go too far? Have you thought about the rights of children in formulating your policies?



The contents of this article are generic in nature and do not represent advice that can be relied upon. This article has been prepared without taking account of any person’s individual objectives, situation or particular needs  You should seek professional advice based on your own personal circumstances. The author and any other parties involved in the preparation or distribution of this article expressly disclaim any form of liability to any person in respect of this article and any consequences arising from its use by any person in reliance in whole or any part of the contents of this article.

About the author

Peter Fu is the Assistant Editor – School Governance.  He can be contacted here.


CompliSpace Media

CompliSpace is an Australian company that helps over 600 non-government schools across Australia with their governance, risk, compliance and policy management. What makes us different is that we monitor over 200 sources of legal and regulatory change to ensure our clients have the updated policies and tools they need to meet new requirements. We share that knowledge with the broader Education community via School Governance.