Last updated: October 2017
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Summary of law reform necessary to achieve full prohibition

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

The right of parents to administer “reasonable chastisement” is recognised under English common law. This should be repealed, together with any confirmation of this defence in written legislation, and prohibition should be enacted of all corporal punishment by all persons with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 early childhood care (nurseries, crèches, family centres, etc) and day care for older children (day centres, after-school childcare, childminding, etc).

Legality of corporal punishment

Home

Corporal punishment is lawful in the home. Corporal punishment in the home is governed by the English common law defence of “reasonable chastisement”, applicable against a charge of common assault but not to charges of child cruelty, wounding or assault causing grievous or actual bodily harm.[1]

Following a review of child-related legislation, the Children Ordinance 1994 (modelled on the English Children Act 1989) has been replaced by the Children Ordinance 2014. The new law protects children from “harm” and “ill-treatment” (arts. 4 and 48) and puts a duty on the Crown to “take reasonable steps, through the provision of services under Part 3 of this Ordinance, to prevent children suffering ill-treatment or neglect” (Schedule 2, part I.4) but it does not prohibit all corporal punishment.

In 2012, the Attorney General called for the adoption of a new Criminal Code: we are seeking further information.[2]

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”.[3] A similar statement was made to the Human Rights Committee in 2015.[4] 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

There is no explicit prohibition of corporal punishment in alternative care settings, where corporal punishment is lawful as for parents. In reporting to the Committee on the Rights of the Child in 2014, the Government stated that foster carers are not permitted to use corporal punishment, but made no reference to prohibition in law.[5]

 

Day care

There is no explicit prohibition of corporal punishment in day care.

 

Schools

Corporal punishment is reportedly prohibited in all schools by the Education (Amendment) Ordinance 2002.[6] It was previously lawful for boys under the age of 11 years, with parental consent, under the Education Ordinance 1989.

 

Penal institutions

Corporal punishment is unlawful as a disciplinary measure in penal institutions. The provisions under the Prison Ordinance 1966 of the Prison Rules which permitted corporal punishment of prisoners for certain offences against prison discipline were formally revoked in 1989. Article 7 of the Constitution 2008 states: “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 unlawful as a sentence for crime. There is no provision for judicial corporal punishment in the Criminal Justice Ordinance 1989 and the Criminal Justice (Amendment) Ordinance 1996. Article 3 of the Constitution 2008 states: “No person shall be subjected to torture or to inhuman or degrading treatment or 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:[7]

“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.[8] 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”.[9]

Examination in the second cycle of the UPR took place in 2012 (session 13). The following recommendations were made:[10]

“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.[11]

The UK’s third cycle examination took place in 2017 (session 27). The following recommendations were made:[12]

“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.”[13]


Footnotes

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

[2] ibid.

[3] ibid., para. 11

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

[5] [2014], CRC/C/GBR/5, Fifth state party report, annex

[6] 25 February 2008, CRC/C/GBR/4, Third state party report to the Committee on the Rights of the Child, paras. 17 and 33

[7] 23 May 2008, A/HRC/8/25, Report of the working group, paras. 56(2), 56(3), 56(4) and 56(5)

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

[9] 25 August 2008, A/HRC/8/25/Add.1, Report of the working group: Addendum, paras. 28, 29 and 30

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

[11] 17 September 2012, A/HRC/21/9/Add.1, Report of the working group: Addendum, annex

[12] 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)

[13] 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

465 (Falklands Islands Government, 2012) (0-14)

National and regional advocacy for law reform

No known campaign 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 Falklands Islands.

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

Notes

The Falklands Islands is a British Overseas Territory (this is disputed by Argentina). 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. The Islands do not have a complete set of domestic legislation, and where there are gaps English law is applicable but only English law up to 31 July 2004. The process of adopting domestic legislation is under way, including child related legislation.

According to the UK’s 2014 Common Core Document, the following treaties apply in the Falklands 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 Falkland 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.