Summary of law reform necessary to achieve full prohibition

Prohibition is still to be achieved in the home, schools and alternative care settings.

Article 266 of the Criminal Code confirms the right of parents, teachers and others with parental authority to use “reasonable” force “by way of correction”. This provision should be repealed, and explicit prohibition enacted of all corporal punishment, however light, by all persons with authority over children.

Articles 23 and 24 of the Education Rules (2006) should be repealed. All regulations concerning the administration of corporal punishment in alternative care settings should also be repealed, and explicit prohibition should be enacted in legislation applicable to all alternative care settings, including public and private day care, residential institutions, foster care, etc.

Current legality of corporal punishment

Home

Corporal punishment is lawful in the home. Article 266 of the Criminal Code (1907) states: “Domestic and school discipline. It is lawful for a parent, or a person in the place of a parent, or for a school-master or master, to use, by way of correction towards a child, pupil, or apprentice, under his care, such force as is reasonable under the circumstances.” Children have limited protection from violence and abuse under other provisions in the Criminal Code, the Children Act (1998) and the Domestic Violence (Protection Orders) Act (1997).

Schools

Corporal punishment is lawful in schools according to the Education Rules (2006). Article 23(1) states: “The principal may impose immediate registerable penalties of suspension, corporal punishment or recommendation for expulsion for acts of violence or acts related to the possession, distribution or use of any controlled drug, alcohol, tobacco, knife or weapon on school premises or while in uniform on the way to or from school.” Article 24 states: “(1) Corporal punishment shall not be administered except by the principal or the deputy principal. (2) Corporal punishment shall always be administered in the presence of another staff member as a witness. (3) If the principal authorizes another teacher to administer the punishment then the principal or the deputy principal must witness the punishment. (4) A child shall not receive corporal punishment except at the hands of a member of the same sex unless, in exceptional circumstances, the Chief Education Officer authorizes a female to administer corporal punishment to a male.” Article 266 of the Criminal Code also applies (see above).

Penal system

Corporal punishment is explicitly prohibited as a sentence for crime in article 3 of the Abolition of Capital and Corporal Punishment Act (1999): “With effect from the date of commencement of this Act, no person shall suffer corporal punishment as a penalty that may be imposed by a court for any offence.”

Corporal punishment is unlawful as a disciplinary measure in penal institutions. The Abolition of Capital and Corporal Punishment Act repealed provisions for corporal punishment in the Prisons Act (1979), the Prison Rules (1980), the Senior Training School Rules (1951) and the Young Offenders Act (1950).

Alternative care

Corporal punishment is lawful in alternative care settings under article 266 of the Criminal Code. The Children Act governs registered children’s homes, foster care, day care and residential homes and does not prohibit corporal punishment. The UK Government has stated that corporal punishment “may not be used on any child in care, whether in a children’s home or foster care” (Parliamentary answer to question asked by Baroness Walmsley, 19 December 2011), but this appears to be as a matter of policy rather than law.

Prevalence research

None identified in the last ten years.

Recommendations by human rights treaty bodies

Note: According to the UK Foreign and Commonwealth Office (www.fco.gov.uk, accessed 3 February 2012), the following treaties are applicable in Bermuda: European Convention on Human Rights; International Covenant on Economic and Social Rights; International Covenant on Civil and Political Rights; UN Convention against Torture; UN Convention on the Rights of the Child; UN Convention on the Elimination of Racial Discrimination.

Committee on the Rights of the Child

“The Committee, while noting amendments to legislation in England, Wales, Scotland and Northern Ireland which restrict the application of the defence of ‘reasonable chastisement’, is concerned that this defence has not been removed. The Committee welcomes the commitment of the National Assembly in Wales to prohibiting all corporal punishment in the home, but notes that under the terms of devolution it is not possible for the Assembly to enact the necessary legislation. The Committee is concerned at the failure of State party to explicitly prohibit all corporal punishment in the home and emphasizes its view that the existence of any defence in cases of corporal punishment of children does not comply with the principles and provisions of the Convention, since it would suggest that some forms of corporal punishment are acceptable.

“The Committee is further concerned that corporal punishment is lawful in the home, schools and alternative care settings in virtually all overseas territories and crown dependencies.

“The Committee, reiterating its previous recommendations (CRC/C/15/Add.188, para. 35), in the light of its general comment No. 8 on ‘the right of the child to protection from corporal punishment and other cruel or degrading forms of punishment’, as well as noting similar recommendations made by the Human Rights Committee; the Committee on the Elimination of Discrimination Against Women; and the Committee on Economic, Social and Cultural Rights, recommends that the State party:

1. prohibit as a matter of priority all corporal punishment in the family, including through the repeal of all legal defences, in England and Wales, Scotland, and Northern Ireland, and in all Overseas Territories and Crown Dependencies;
2. ensure that corporal punishment is explicitly prohibited in schools and all other institutions and forms of alternative care throughout the United Kingdom and in the overseas territories and crown dependencies;
3. actively promote positive and non-violent forms of discipline and respect for children’s equal right to human dignity and physical integrity, with a view to raising public awareness of children’s right to protection from all corporal punishment and to decreasing public acceptance of its use in childrearing;
4. provide parental education and professional training in positive child-rearing.”

(20 October 2008, CRC/C/GBR/CO/4, Concluding observations on third/fourth report, paras. 40, 41 and 42)

“The Committee expresses grave concern that corporal punishment is still widely practised in many of the Overseas Territories and that domestic legislation generally does not prohibit and eliminate its use in schools, care institutions and homes. It also notes with concern that the British Virgin Islands is the only remaining Territory that has not yet prohibited by law the use of judicial corporal punishment.

“The Committee recommends that all appropriate measures, including of a legislative nature, be taken to prohibit and eliminate all forms of corporal punishment within the school, juvenile justice and alternative care systems and in the home. The Committee further suggests that awareness raising and education campaigns be conducted to change public attitudes and ensure that alternative forms of discipline are administered in a manner consistent with the child’s human dignity and in conformity with the Convention, especially articles 19 and 28.2.

“The Committee notes that legislation relating to juvenile justice has been enacted in all of the Overseas Territories. While the Committee appreciates that the legal abolition of judicial corporal punishment in most of the Overseas Territories, it is concerned that the bill to abolish it in the British Virgin Islands has not yet been enacted….

“The Committee further recommends that the British Virgin Islands reinforce efforts to enact the bill introduced into the Legislative Council to abolish the use of judicial corporal punishment in the islands.
(16 October 2000, CRC/C/15/Add.135, Concluding observations on initial report on Overseas Territories and Crown Dependencies, paras. 35, 36, 55 and 57)

Committee on Economic, Social and Cultural Rights

“The Committee … also remains concerned that corporal punishment of children in the home is not yet prohibited by law.

The Committee … reiterates its recommendation that physical punishment of children in the home be prohibited by law.”
(12 June 2009, E/C.12/GBR/CO/5, Concluding observations on fourth/fifth report, para. 24)

"Given the principle of the dignity of the individual, which provides the foundation for international human rights law (see paragraph 41 of the Committee's General Comment No.13) and in the light of article 10.1 and 10.3 of the Covenant, the Committee recommends that the physical punishment of children in families be prohibited, in line with the recommendation of the Committee on the Rights of the Child (see paragraph 31 of the 1995 concluding observations of that Committee (CRC/C/15/Add.34))."
(5 June 2002, E/C.12/1/Add.79, Concluding observations on fourth report of UK, the Crown Dependencies and the Overseas Dependent Territories, para.36)

“The Committee is alarmed by the fact that corporal punishment continues to be practised in schools which are privately financed, and at the statement by the delegation that the Government does not intend to eliminate this practice.

“The Committee recommends that the State party take appropriate measures to eliminate corporal punishment in those schools in which this practice is still permitted, i.e. privately financed schools.”
(4 December 1997, CESCR/E/C.12/1/Add.19, Concluding observations on third report, paras. 16 and 28)

Committee Against Torture

"Positive aspects:
d) the removal of corporal punishment as a penalty in several of the Dependent Territories."
(17 November 1998, A/54/44, Concluding observations on third report, para.74)

"The Committee recommends that the Government of the United Kingdom take the following measures:
i) reconsidering corporal punishment with a view to determining if it should be abolished in those dependencies that still retain it."
(9 July 1996, A/51/44, Concluding observations on second report, para.65)

"... The territories appeared to be governed in accordance with the obligations on the Convention and the Committee congratulated the Government of the United Kingdom in this respect. The Committee was, however, interested in receiving more detail pertaining to cases of corporal punishment in the territories retaining it. The nature and incidence of such punishment, together with details of the cime and the characteristics of the offender, should be forwarded to the Committee when the information is gathered...."
(26 June 1993, A/48/44, Concluding observations on initial report, para.283)

Human Rights Committee

“The Committee notes with concern that corporal punishment of children is not prohibited in schools in Bermuda, the British Virgin Islands, Gibraltar, Montserrat and the Crown Dependencies. (arts. 7 and 24)

The State party should expressly prohibit corporal punishment of children in all schools in all British Overseas Territories and Crown Dependencies.”
(30 July 2008, CCPR/C/GBR/CO/6, Concluding observations on sixth report, para. 27)

“The Committee recommends that corporal punishment administered to privately funded pupils in independent schools be abolished.”
(27 July 1995, CCPR/C/79/Add.55, Concluding observations on fourth report, para. 8)

Universal Periodic Review

The UK was examined in the first cycle of the Universal Periodic Review in 2008. The Government rejected the recommendations to prohibit all corporal punishment of children (25 August 2008, A/HRC/8/25/Add.1, Report of the Working Group: Addendum, paras. 28, 29 and 30). Examination in the second cycle is scheduled for 2012.