Summary of law reform necessary to achieve full prohibition

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

Article 22 of the Children Act confirms the right of parents, teachers and other persons having lawful control of a child or young person under the age of 16 years to administer “reasonable punishment”. Children’s human rights under the Convention on the Rights of the Child require the repeal of such defences and the enactment of legislation that ensures children’s equal legal protection from assault. The law should clearly state that no degree or kind of corporal punishment is acceptable or lawful, including by parents in the family home, and explicit prohibition should be enacted of all corporal punishment in all settings and by all persons with authority over children.

Explicit prohibition of corporal punishment enacted in legislation applicable to all schools, public and private, all alternative care settings, including public and private day care, residential institutions, foster care, etc, and all institutions accommodating children in conflict with the law. All authorisations for corporal punishment as a sanction for criminal offences should be repealed, including provisions in the Children Act.

Current legality of corporal punishment

Home

Corporal punishment is lawful in the home. Article 22 of the Children Act (1925) states: “Nothing in this Part shall be construed to take away or affect the right of any parent, teacher, or other person having the lawful control or charge of a child or young person to administer reasonable punishment to such child or young person.” Provisions against violence and assault in this Act, the Domestic Violence Act (1999), the Summary Offences Act (1921) and the Offences Against the Person Act (1925) are not interpreted as prohibiting corporal punishment in childrearing.

The Government rejected recommendations to prohibit corporal punishment in all settings including the home made during the Universal Periodic Review of Trinidad and Tobago in 2011, stating that corporal punishment is traditionally accepted in disciplining children (1 March 2012, A/HRC/19/7/Add.1, Report of the Working Group: Addendum, para. 22). A Children Bill is under discussion which would prohibit corporal punishment by all persons except parents/guardians, stating in article 4 (prevention of cruelty to children): “(6) 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 to administer reasonable punishment to such child. (7) Reasonable punishment referred to in subsection (6), in relation to any person other than a parent or guardian, shall not include corporal punishment.” The Bill has passed through the House of Representatives and on 1 May 2012 had its first reading in the Senate.

Schools

Corporal punishment of children is lawful in public and private schools under section 22 of the Children Act (see above). It is prohibited in the Children (Amendment) Act 2000, but as at January 2012 this has not come into force. The Education Act 1996 makes no reference to corporal punishment. The National School Code of Conduct (2009) of the Ministry of Education states that corporal punishment should not be used. Corporal punishment would be prohibited in the Children Bill under discussion in 2012.

Penal system

Law reform has not yet completely abolished corporal punishment as a sentence for crime. The Miscellaneous Provisions (Children) Act (2000) prohibited corporal punishment as a sentence for persons under 18 by repealing the Corporal Punishment (Offenders Not Over Sixteen) Act and amending the Corporal Punishment (Offenders Over Sixteen) Act to apply to offenders over the age of 18. However, it did not repeal other laws which allow under 18s to be sentenced to corporal punishment. Article 83(g) of the Children Act provides for a child or young person found guilty of an offence to be ordered to be whipped: this provision is repealed in the Children (Amendment) Act 2000 (article 24), but as at January 2012 this Act is not in force. Corporal punishment would be unlawful under the Children Bill being considered in 2012.

Corporal punishment is lawful as a disciplinary measure in penal institutions. The Young Offenders (Male) Detention Regulations, pursuant to the Young Offenders Detention Act (1926), authorise corporal punishment with a rod to be ordered in detention institutions by the Inspector, Commissioner or Assistant Commissioner of Prisons (article 64 and the Third Schedule), up to 18 strokes, 14 strokes and 9 strokes respectively. Under the Children Act, children convicted of offences may be sent to a certified industrial school or a certified orphanage, where corporal punishment is lawful under article 22 of the Children Act (see above). It would be prohibited in the Children Bill (see above).

Alternative care

Corporal punishment is lawful in alternative care settings under article 22 of the Children Act (see above). It would be unlawful in institutional settings under the Children Bill (see above) but would presumably be lawful in other care settings as for parents.

Prevalence research

According to a major UNICEF analysis published in 2010, 77% of children aged 2-14 experienced violent discipline (physical punishment and/or psychological aggression) in 2005-2006. More than half experienced physical punishment, while a smaller percentage (25%) of mothers and caregivers thought that physical punishment was necessary in childrearing, and non-violent discipline was also widely used: experienced by 89% of children. One child in twenty experienced severe physical punishment (being hit or slapped on the face, head or ears or being hit over and over with an implement) and 68% experienced psychological aggression (being shouted at, yelled at, screamed at or insulted). Children aged 2-4 were more likely to experience violent discipline than older children: 83% of children aged 2-4 compared to 79% of children aged 5-9 and 74% of children aged 10-14. No significant differences in children’s experience of violent discipline were found according to sex, household size, level of education of adults in the household or engagement in child labour. (UNICEF (2010), Child Disciplinary Practices at Home: Evidence from a Range of Low- and Middle-Income Countries, NY: UNICEF)

According to statistics from UNICEF on violence in the family, in 2005-2006 eight per cent of girls and women aged 15-49 thought that a husband is justified in hitting or beating his wife under certain circumstances. (UNICEF (2009), Progress for Children: A report card on child protection, NY: UNICEF)

Recommendations by human rights treaty bodies

Committee on the Rights of the Child

“The Committee regrets that some of the recommendations in its concluding observations (CRC/C/15/Add.82) adopted following consideration of the State party’s initial report (CRC/C/11/Add.10) have been given insufficient follow-up, particularly those relating to … abuse, ill-treatment and domestic violence; corporal punishment…. Those recommendations are reiterated in the present document.

“The Committee urges the State party to make every effort to address the recommendations contained in the concluding observations on the initial report that have not yet been implemented and to implement the concerns contained in the present concluding observations.

“While welcoming the amendment to the Children Act (No. 46:01) prohibiting the use of corporal punishment as a penal sanction for persons aged under 18, the Committee remains concerned that corporal punishment is lawful in the home and institutions, and is widely practised.

“The Committee recommends that the State party:

1. expressly prohibit by law corporal punishment in all settings and ensure the implementation of the law;
2. conduct awareness-raising campaigns to inform the public about the negative impact of corporal punishment on children and actively involve children and the media in the process; and
3. ensure that positive, participatory, non-violent forms of discipline are administered in a manner consistent with the child’s human dignity and in conformity with the Convention, especially article 28 (2) as an alternative to corporal punishment at all levels of society.

“The Committee recommends that the State party take the necessary measures to prevent child abuse and neglect, by, inter alia:

a) carrying out public education campaigns that raise awareness of consequences of ill-treatment of children, alternative measures of discipline for children and address socio-cultural barriers that inhibit victims from seeking assistance….”

(17 March 2006, CRC/C/TTO/CO/2, Concluding observations on second report, paras 8, 9, 39, 40 and 47)

“The Committee is deeply concerned by the use of corporal punishment within the family, at school and in care institutions, as well as at the absence of a law that clearly prohibits the use of both mental and physical torture or other cruel, inhuman or degrading treatment or punishment against children.

“The situation in relation to the administration of juvenile justice, in particular its compatibility with articles 37, 39 and 40 of the Convention as well as other relevant standards such as the Beijing Rules, the Riyadh Guidelines and the United Nations Rules for the Protection of Juveniles Deprived of Their Liberty, is a matter of concern to the Committee. In particular, the Committee is concerned … that flogging is allowed by the law as a means of punishment and corporal punishment is allowed as a means of discipline in detention centre….

“In light of articles 3, 19 and 28.2, the Committee strongly recommends that corporal punishment within the family, at school and in care institutions be prohibited by law. It further recommends that the authorities develop and implement appropriate creative and socio-educational measures of discipline which respect all the rights of the child, as well as establish sensitization programmes for parents.

“… The Committee also recommends that corporal punishment in detention as a means of discipline, and flogging as a means of punishment, be abolished in the legislation and in practice.”
(10 October 1997, CRC/C/15/Add.82, Concluding observations on initial report, paras.17, 23, 32 and 39)

Committee on Economic, Social and Cultural Rights

“While the Committee welcomes the abolition of corporal punishment in schools, it is concerned at the continued resort to corporal punishment at home and for adult males in the justice system.

“The Committee calls on the State party to prohibit effectively the use of corporal punishment in all areas of life.”
(5 June 2002, E/C.12/1/Add.80, Concluding observations to the second report, paras.29 and 52)

Human Rights Committee

“The Committee is disturbed to learn that apart from prohibiting corporal punishment for persons under 18 years of age, the State party is still practising the punishments of flogging and whipping which are cruel and inhuman punishments prohibited by article 7.

“Sentences of flogging or whipping should immediately be abolished.”
(3 November 2000, CCPR/CO/70/TTO, Concluding observations on third/fourth report, para. 13)

Universal Periodic Review

Trinidad and Tobago was examined in the first cycle of the Universal Periodic Review in 2011. The Government rejected recommendations to prohibit corporal punishment of children in all settings including the home (1 March 2012, A/HRC/19/7/Add.1, Report of the Working Group: Addendum, paras. 21 and 22). Examination in the second cycle is scheduled for 2016.