Summary of law reform necessary to achieve full prohibition

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

Article 61 of the Crimes Act authorises the use of force “by way of correction”. This should be repealed and explicit prohibition enacted of all corporal punishment of children, in all settings and by all persons with authority over children. The near universal acceptance of corporal punishment in “disciplining” children necessitates a clear statement in law that all corporal punishment, however “light”, is prohibited.

Explicit prohibition of corporal punishment should be enacted in relation to disciplinary measures in all institutions accommodating children in conflict with the law and in all alternative care settings, including public and private day care, residential care, foster care, etc.

Current legality of corporal punishment

Home

Corporal punishment is lawful in the home. Article 61 of the Crimes Act (1969) states: “(1) Every parent or person in the place of a parent, and every schoolmaster, is justified in using force by way of correction towards any child or pupil under his care, if the force used is reasonable in the circumstances. (2) The reasonableness of the force used is a question of fact.” Article 64 covers excessive force.  Children have some protection from violence and abuse under other provisions in the Crimes Act, the Cook Islands Act (1915) and the Cook Islands Protection of Children Ordinance (1954).

As at February 2012, the Crimes Act is under review and a Family Law Bill is being discussed.

Schools

Corporal punishment is prohibited in schools in article 63 of the Education Act (2009): “A person who is at an educational institution must not – (a) verbally abuse any student who is attending the educational institution; or (b) use force, by way of correction or punishment, against any student who is attending the educational institution.”

Penal system

Corporal punishment is unlawful as a sentence for crime. The Constitution states that no person shall be subject to “cruel and unusual treatment or punishment” (article 65). There is no provision for corporal punishment in the Prevention of Juvenile Crime Act (1968) and the Criminal Justice Act (1967).

There is no explicit prohibition of corporal punishment or as a disciplinary measure in penal institutions, and article 61 of the Crimes Act applies (see above).

Alternative care

Corporal punishment is lawful in other institutions and forms of childcare under article 61 of the Crimes Act (see above).

Prevalence research

None identified.

Recommendations by human rights treaty bodies

Committee on the Rights of the Child

“The Committee notes the legal review undertaken by the State party of the Education Act that aims at banning all forms of corporal punishment in schools. The Committee also notes with appreciation the State party’s efforts to combat domestic violence, including through the legal review of the Crimes Act and Family law Bill that, among others, aim to provide wider protection for child victims of domestic violence. However, the Committee expresses its concern about:

1. the prevalence of violence against children including corporal punishment used in all settings and especially in the home, where it remains lawful;
2. that cases of domestic violence against children do not receive the adequate treatment from the police; and
3. that child victims of violence are not aware of reporting procedures and thus many such cases go unreported.

“Recalling its General Comment No. 8 (2006) on the right of the child to protection from corporal punishment and other cruel or degrading forms of punishment and its General Comment No. 13 (2011) on the right of the child to freedom from all forms of violence, the Committee recommends that the State party:

1. prohibit corporal punishment in all settings including in the family, schools and in institutions for children, in this regard the State party is urged to accelerate the adoption of the Education Amendment Bill;
2. introduce public education, on the harmful effects of corporal punishment, with a view to changing the general attitude towards this practice, and promote positive, non-violent, participatory forms of child-rearing and education as an alternative to corporal punishment;
3. extend application of the existing ‘no drop’ policy in the State party, to child victims of domestic violence so that prosecution of such cases will proceed despite victims’ non-cooperation;
4. strengthen the Police Domestic Violence Unit, by providing adequate human, technical and financial resources to fulfil its role effectively, and strengthen child rights training for law enforcement personnel, in order to ensure that they can provide adequate support to child victims;
5. take all necessary measures to ensure that child victims of violence are aware of the reporting procedures so as to encourage them to report cases of domestic violence to the authorities; and
6. cooperate with the Special Representative of the Secretary-General on violence against children and seek technical assistance, inter alia, from UNICEF and the Office of the High Commissioner for Human Rights (OHCHR).”

(3 February 2012, CRC/C/COK/CO/1 Advance Unedited Version, Concluding observations on initial report, paras. 32 and 33)

Universal Periodic Review

The Cook Islands is not a UN member state and is not reviewed under the Universal Periodic Review process.