The Child's Right to Bodily Integrity
![handle is hein.journals/cicj7 and id is 127 raw text is: The Child's Right to Bodily Integrity
ROBERT LUDBROOK
The right to bodily integrity is the most personal and arguably the most important of all
human rights. It is the right to make decisions about what happens to one's own body, the
right to say no to unwanted touching, the right not to be physically or sexually assaulted.
This fundamental right has been stated and restated many times by the courts and judi-
cial commentators. In 1765 Blackstone wrote:
The law cannot draw the line between different degrees of violence, and therefore totally
prohibits the first and lowest stage of it; every man's person being sacred, and no other
having the right to meddle with it, in any the slightest manner.I
Two hundred and twenty years later an English appeal judge restated the principle:
The fundamental principle, plain and incontestable, is that every person's body is inviolate
... any touching of another person, however slight, may amount to a battery.2
The High Court of Australia in Marion's case3 recently reinforced the importance of this
principle in Australian law. Brennan J made a connection between the common law prin-
ciple of bodily integrity and the right to human dignity under international human rights
instruments:
Human dignity is a value common to [Australia's] municipal law and to international in-
struments relating to human rights. The law will protect equally the dignity of the hale and
the hearty and the dignity of the weak and the lame; of the frail baby and the frail aged; of
the intellectually able and the intellectually disabled.
This article considers the right of children to bodily integrity and examines whether
there is justification for giving children lesser protection than is accorded to adults. It re-
views three recent unreported Australian cases where the courts have considered chil-
dren's rights to bodily integrity.
Lesser legal protection for children
While stressing the universal nature of the right to bodily integrity and the law's refusal to
draw lines between different degrees of violence, Blackstone was willing to make an ex-
ception in relation to parental punishment of children, allowing that a parent may law-
fully correct the child, being under age, in a reasonable manner: for this is for the benefit of
his education. This principle of reasonable chastisement has become an established part
of the common law and is restated in more modern form in the current edition of Halsbury:
* Director, National Children's and Youth Law Centre.
I Commentaries (17th edn 1830) vol 3 at 120.
2 Collins v Wilcock [1984] 1 WLR 1172 at 1177 (CA) per Robert Goff U.
3 Secretary, Department of Health and Community Services v JWB and SMB (1992) 175 CLR, 218, 266
(Marion's case).](ViewImageLocal?handle=hein.journals/cicj7&div=26&collection=&method=preview&ext=.png&size=3)
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The Child's Right to Bodily Integrity
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