Summary of law reform necessary to achieve full prohibition

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

The right of parents to administer “reasonable chastisement” is recognised under English common law; article 226(7) of the Penal Code and article 41(8) of the Juveniles Law confirm “the right of any parent, teacher or other person having the lawful control or charge of a child to administer punishment to him.” These defences should be repealed and explicit prohibition enacted of all corporal punishment, however light, by all persons with authority over children.

Provisions in the Education Law which authorise corporal punishment in schools should be repealed and explicit prohibition of corporal punishment enacted in relation to all educational settings, including public and private, full and part time. Explicit prohibition should also be enacted in legislation applicable to all institutions accommodating children in conflict with the law and 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 under the English common law defence of “reasonable chastisement”. Articles 225 and 226 of the Penal Code (2007 Revision) punish cruelty to children but article 226(7) states: “Nothing in section 225 shall be construed as affecting the right of any parent, teacher or other person having the lawful control or charge of a child to administer punishment to him.” This provision is also included in the Juveniles Law (1990) (article 41(8)).

Child protection provisions in the Penal Code and the Guardianship and Custody of Children Law (1996 Revision) do not prohibit corporal punishment in childrearing. Other child laws have been enacted – the Children Law (1995) and the Children Law (2003) – but as at February 2012 these have not been brought into force.

Schools

Corporal punishment is lawful under article 30 of the Education Law (1999 Revision): “(1) Notwithstanding any other law to the contrary, corporal punishment may be administered to a pupil only where no other punishment is considered suitable or effective by the principal, and only by the principal or any teacher appointed in writing by him for that purpose. (2) Whenever corporal punishment is administered an entry shall be made in a punishment book which will be kept in each school for such purpose with a statement of the nature and extent of the punishment and the reasons for administering it.” Articles 226(7) of the Penal Code and 41(8) of the Juveniles Law also apply (see above).

Prohibition is included in the Education Modernisation Law (2009), article 26 of which states: “(1) Corporal punishment shall not be administered in any schools. (2) Subsection (1) does not prohibit action taken for reasons that include averting an immediate danger of personal injury to, or death of, any person, including the students himself. (3) A teacher or any other employee authorized under this Law may physically restrain a student where restraint is necessary for the physical protection of the student or any other child in the school and not as a punishment.” The Law similarly prohibits corporal punishment in early childhood institutions (article 24). However, as at February 2012 it appears that the law has not been brought into force.

Penal system

Corporal punishment is unlawful as a sentence for crime. There is no provision for judicial corporal punishment in the Penal Code, the Juveniles Law or the Youth Justice Law (2005 Revision).

There appears to be no explicit prohibition of corporal punishment as a disciplinary measure in penal institutions. According to the Government’s fourth/fifth report to the Human Rights Committee, provisions for the court to order corporal punishment for offences against prison discipline were repealed in the Prisons (Amendment) Law (1998) (11 April 2000, CCPR/C/UKOT/99/5, para. 66). However, as at February 2012, the Prison Rules (1999 Revision) which are in force include articles providing for corporal punishment (article 47).

Alternative care

Corporal punishment is lawful in alternative care settings under English common law and article 226(7) of the Penal Code and 41(8) of the Juveniles Law (see above).

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 Cayman 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.

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.