Last updated: October 2017
Flag of British Virgin Islands Country report for British Virgin Islands

Summary of law reform necessary to achieve full prohibition

Prohibition is still to be achieved in the home, alternative care settings, day care and schools; it is unlawful in penal institutions but some provisions authorising it are still to be formally repealed.

Article 192 of the Criminal Code 1997 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 This provision should be repealed and prohibition should be enacted of all corporal punishment by all persons with authority over children.

Alternative care settings – Prohibition should be enacted in legislation applicable to all alternative care settings (foster care, institutions, places of safety, emergency care, etc).

Day care – Corporal punishment should be prohibited in all early childhood care (nurseries, crèches, family centres, etc) and all day care for older children (day centres, after-school childcare, childminding, etc).

Schools – There is no provision for corporal punishment in education law, but it is not explicitly prohibited and teachers’ right “to administer punishment” is confirmed in criminal law: this defence should be explicitly repealed.

Penal institutions – Provisions authorising corporal punishment in the Prisons Act 1956 and the Prisons Rules 1999 should be formally repealed.

Legality of corporal punishment

Home

Corporal punishment is lawful in the home. Article 192 of the Criminal Code 1997 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: “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.”

Children have limited protection from violence and abuse under the Children and Young Persons Act 2005, the Criminal Code 1997, the Domestic Violence Act 2011 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.

In its 2014 state party report to the Committee on the Rights of the Child, the UK Government states that it “does not condone any violence towards children and has clear laws to deal with it” but “our view is that a mild smack does not constitute violence”.[1] A similar statement was made to the Human Rights Committee in 2015.[2] The UK Government has on three occasions rejected recommendations to prohibit all corporal punishment of children made during the Universal Periodic Review of the UK (see below).

 

Alternative care settings

Corporal punishment is lawful in alternative care settings under the right “to administer punishment” in article 192 of the Criminal Code 1997 (see under “Home”). The Government has stated that corporal punishment is not allowed in institutions and care settings[3] but this appears to be a matter of policy rather than law.

 

Day care

Corporal punishment is lawful in day care under the right “to administer punishment” in article 192 of the Criminal Code 1997 (see under “Home”).

 

Schools

Corporal punishment is lawful in schools under article 192 of the Criminal Code (see under “Home”) 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 also states: “(2) Corporal punishment may be administered where no other punishment is considered suitable or effective, and only by the principal or deputy principal and one senior teacher appointed in writing by the principal for that purpose, in a manner that is in conformity with guidelines issued in writing by the Chief Education Officer.”

The Education (Amendment) Act 2014 repeals the provisions for corporal punishment in the Education Act, replacing article 55 with the following: “In the enforcement of discipline in public schools, assisted private schools and private schools degrading or injurious punishment shall not be administered.” However, the Act does not explicitly prohibit all corporal punishment or repeal the defence in the Criminal Code allowing teachers “to administer punishment”. According to a Government source, in “administering punishment” to students, teachers are governed by the Education (Student Code of Conduct) Rules 2006, which outline the punishments that may be imposed and do not include corporal punishment, and the Government is considering whether to remove “teacher” from article 192 of the Criminal Code.[4]

 

Penal institutions

Corporal punishment as a disciplinary measure in penal institutions was abolished in 2000 under the Corporal Punishment (Abolition) Act 2000.[5] However, it appears that provisions for corporal punishment in the Prison Act 1956 and the Prison Rules 1999 are yet to be formally repealed.[6] Article 11 of the Prison Act 1956 provides for up to 12 strokes of a tamarind for a male under 21 years of age; the Code of Discipline in Schedule One to the Prison Rules 1999 regulates corporal punishment in prison (section A arts. 6 and 19, section B, art. 10, and section C, art. 19). In 2014 it was announced that the Prison Act and Prison Rules would be amended.[7] As at August 2016, it appears that this reform had not yet been achieved.[8]

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”.

 

Sentence for crime

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 2005 or the Criminal Code 1997. Judicial corporal punishment was previously lawful under article 98(2) of the Magistrate’s Code of Procedure Act, which provided for a Magistrate’s Court or Juvenile Court to order whipping against a male child or young person in addition to or in lieu of any other punishment.

 

Universal Periodic Review of the UK’s human rights record

The UK was examined in the first cycle of the Universal Periodic Review in 2008 (session 1). The following recommendations were made:[9]

“To consider further measures in order to address the problem of violence against children, including corporal punishment. (Italy)

“To reconsider its position about the continued legality of corporal punishment against children. (Sweden)

“To consider going beyond current legislation and to ban corporal punishment, also in the private sector and in its Overseas Territories. (France)”

The Government rejected the recommendations, stating that it sees no need for law reform since it believes the current law is working well, parents should be allowed to discipline children and surveys show that the use of corporal punishment in childrearing has declined.[10] It accepted the recognition to consider going beyond current legislation in relation to protecting children from violence but rejected “the implication that it is failing in this regard through the application of its policy on corporal punishment”.[11]

The mid-term report, dated March 2010, repeats this assertion and draws attention to the prohibition of corporal punishment in education and care settings and to the review being undertaken of corporal punishment in some education settings which fall outside of the legal framework.[12] The report refers to previous law reforms which limited the application of the “reasonable punishment” defence so that it can no longer be relied upon in cases of assault occasioning cruelty or actual or grievous bodily harm. However, it then attempts to defend the continued legality of a certain degree of physical punishment in childrearing, stating that the Government “does not condone” physical punishment but “does not want to criminalise decent parents who decide to administer a mild smack”: the Government considers the promotion of positive discipline techniques to be sufficient to address the issue.

Examination in the second cycle of the UPR took place in 2012 (session 13). The following recommendations were made:[13]

“Reconsider its position about the continued legality of corporal punishment of children (Sweden);

“Take measures to ensure the freedom of children from physical punishment in accordance with the Convention on the Rights of the Child (Norway);

“Introduce a ban on all corporal punishment of children as recommended by the CRC and other treaty bodies (Finland)”

The Government rejected the recommendations, stating: “… The law in the UK only permits physical punishment of children in very limited circumstances. Corporal punishment is unlawful in state and full-time independent schools, in nursery and childminding settings, children’s homes and secure establishments…. The UK Government does not accept that it is in breach of the UNCRC with regard to physical punishment; and believe [sic] that UK is compliant with Articles 19 and 37 in relation to abuse and violence towards children.”[14]

The UK’s third cycle examination took place in 2017 (session 27). The following recommendations were made:[15]

“In all devolved administrations, overseas territories and Crown dependencies, prohibit all corporal punishment in the family, including through the repeal of all legal defences, such as “reasonable chastisement” (Liechtenstein);

“Ensure that corporal punishment is explicitly prohibited in all schools and educational institutions and all other institutions and forms of alternative care (Liechtenstein);

“Prohibit corporal punishment in all settings, including the family (Ireland);

“Reconsider its position on the legality of corporal punishment of children (Mongolia);

“Ban corporal punishment of children to ensure the full protection and freedom from violence for all children (Sweden);

“Consider prohibiting corporal punishment against children and ensure that it is explicitly prohibited in all schools and educational institutions, and all other institutions and forms of alternative care (Croatia);

“Take further actions in protecting the rights of the child by prohibiting all corporal punishment of children as required by the convention of the Rights of Child (Estonia)”

The Government rejected all seven recommendations, stating: “the UK does not condone any violence towards children and has clear laws to deal with it. The ‘reasonable chastisement’ defence in s.58 Children Act 2004 cannot be used when someone is charged with assault causing actual or grievous bodily harm, or with child cruelty. Parents should not be criminalised for giving a child a mild smack in order to control their behaviour. The Crown Dependencies currently follow a similar approach to the UK. The decision on whether to prohibit corporal punishment and in what settings in the Overseas Territories is a decision, ultimately, for Territory governments. The UK Government is keen to support those Territories who wish to move away from the use of corporal punishment and explore alternative measures, including the development of positive parenting strategies and effective behaviour management techniques.”[16]


Prevalence/attitudinal research for British Virgin Islands in the last 10 years

None identified.

Footnotes

[1] [2014], CRC/C/GBR/5, Fifth state party report, annex, para. 11

[2] [n.d.], CCPR/C/GBR/Q/7/Add.1, Advance Unedited Version, Reply to list of issues, para. 161

[3] Parliamentary answer to question asked by Baroness Walmsley, 19 December 2011

[4] Ministry of Health and Social Development, Correspondence with the Global Initiative, July 2015

[5] http://www.onepaper.com/deals/?v=d&i=&s=Caribbean%3AParadise+News&p=22726&f=p, accessed 18 February 2016

[6] The Act and Rules are available on the Government website, http://www.bvi.gov.vg/departments/her-majestys-prison, accessed 18 February 2015

[7] http://www.bvi.org.uk/government/pressreleases/speechfromthethrone2014, accessed 1 February 2016

[8] http://www.bvi.gov.vg/departments/her-majestys-prison, accessed 14 August 2016

[9] 23 May 2008, A/HRC/8/25, Report of the working group, paras. 56(2), 56(3), 56(4) and 56(5)

[10] 23 May 2008, A/HRC/8/25, Report of the working group, para. 25

[11] 25 August 2008, A/HRC/8/25/Add.1, Report of the working group: Addendum, paras. 28, 29 and 30

[12] Mid-term progress update by the United Kingdom of Great Britain and Northern Ireland on its implementation of recommendations agreed in June 2008, para. 7

[13] 6 July 2012, A/HRC/21/9, Report of the working group, paras. 110(78), 10(79) and 110(80)

[14] 17 September 2012, A/HRC/21/9/Add.1, Report of the working group: Addendum, annex

[15] 8 May 2017, A/HRC/WG.6/27/L.7, Draft report of the working group, unedited version, paras. 6(193), 6(194), 6(195), 6(196), 6(197), 6(198) and 6(199)

[16] 7 September 2017, A/HRC/36/9/Add.1, Report of the working group: addendum, para. 3; see also 29 August 2017, Annex to the response to the recommendations received on 4 May 2017

Child population

4,983 (CIA World Factbook, 2011 est.) (0-14)

National and regional advocacy for law reform

Forthcoming treaty body examinations and UPRs

Only the UN Convention Against Torture, the UN Convention on the Rights of the Child, the UN Convention on the Elimination of Discrimination Against Women, the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights apply in the British Virgin Islands.

For information on upcoming examinations for the above treaty bodies, see the UK's online country report.

Notes

The British Virgin Islands is a British Overseas Territory. As such, it has its own constitution and domestic laws and substantial responsibility for its internal affairs, including responsibility for the protection and promotion of human rights and a duty to ensure that local law complies with the relevant convention and court judgments and is non-discriminatory. The UK Government has responsibility for international relations, internal security, defence, good governance and the wellbeing of the people.

According to the UK’s 2014 Common Core Document, the following treaties apply in the British Virgin Islands: the European Convention on Human Rights, the International Covenant on Civil and Political Rights, the International Covenant on Economic, Social and Cultural Rights, the UN Convention against Torture, the UN Convention on the Rights of the Child and the UN Convention on the Elimination of All Forms of Discrimination Against Women. The European Social Charter does not apply.

For extracts from the concluding observations of treaty bodies concerning corporal punishment of children, see the downloadable country reports for the British Virgin Islands accessible via the links above or go to the UK country report
This is an automatic translation service. Extracts from laws, treaty body recommendations and Universal Periodic Review outcomes are unofficial translations.