Summary of law reform necessary to achieve full prohibition

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

 Article 192 of the Criminal Code confirms the right of any parent, teacher or other person having the lawful control or charge of a child or young person to administer punishment to him. This provision should be repealed and explicit prohibition should be enacted of all corporal punishment, however light, by all persons with authority over children.

Article 55 of the Education Act should be repealed and explicit prohibition of corporal punishment should be enacted in relation to all educational settings, including public and private, full and part time. The law should explicitly prohibit corporal punishment in relation to disciplinary measures in all institutions accommodating children in conflict with the law. Explicit prohibition should also 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 192 of the Criminal Code makes it an offence to wilfully assault or ill-treat a child or young person in a manner likely to cause unnecessary suffering or injury to health, but it also states that nothing in this section shall be construed as affecting the right of any parent, teacher or other person having the lawful control or charge of a child or young person to administer punishment to him. We have yet to establish whether or not there is a similar defence in the Children and Young Persons Act (2005).

Children have limited protection from violence and abuse under the Children and Young Persons Act, the Criminal Code (1997) and the Constitution (2007). Article 2 of the Domestic Violence Act (2011) defines domestic violence as “any controlling or abusive behaviour that harms or may harm the health, safety or well-being of a person or any child” but this is not interpreted as prohibiting corporal punishment in childrearing.

Schools

Corporal punishment is lawful in schools under article 192 of the Criminal Code (see above) and article 55 of the Education Act (2004), which states that in public and private schools “degrading or injurious punishment shall not be administered” but permits the use of corporal punishment “where no other punishment is considered suitable or effective”.

Penal system

Corporal punishment is prohibited as a sentence for crime in the Corporal Punishment (Abolition) Act (2000). There is no provision for judicial corporal punishment in the Children and Young Persons Act, the Youth Courts Act (2005), the Criminal Justice (Alternative Sentencing) Act (2005), the Probation of Offenders (Amendment) Act (2005) or the Criminal Code (Amendment) Act (2005). Article 13 of the Constitution states: “No person shall be subjected to torture or to inhuman or degrading treatment or punishment.”

Corporal punishment is considered unlawful as a disciplinary measure in penal institutions but there appears to be no explicit prohibition in law. Article 17 of the Constitution states that all persons deprived of their liberty “have the right to be treated with humanity and with respect for the inherent dignity of the human person”. In 2011, a new Prison Law and Prison Rules were being drafted.

Alternative care

Corporal punishment is lawful in other institutions and forms of childcare under article 192 of the Criminal Code. The Government has stated that corporal punishment is not allowed in institutions and care settings (Parliamentary answer to question asked by Baroness Walmsley, 19 December 2011) but this appears to be a matter of policy rather than law.

Prevalence research

None identified.

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 the British Virgin Islands: 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; UN Convention on the Elimination of all Forms of Discrimination Against Women.

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 the Elimination of Discrimination Against Women

“... The Committee also notes with concern that corporal punishment is lawful in the home and constitutes a form of violence against children, including the girl child.

“The Committee urges the State party to accord priority attention to the adoption of comprehensive measures to address violence against women in accordance with its general recommendation No. 19 on violence against women.... The Committee further recommends that the State party include in its legislation the prohibition of corporal punishment of children in the home.”
(18 July 2008, Part of A/63/38, Concluding observations on fifth/sixth report, paras. 280 and 281)

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.