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, day care, schools and penal institutions.

The right of parents to administer “reasonable chastisement” is recognised under English common law; article 35(5) of the Children (Jersey) Law 2002 confirms “the right of any parent, teacher or other person having the lawful control or charge of a child to administer punishment to the child” and article 79 recognises the defence of reasonable corporal punishment. These defences should be repealed and prohibition enacted of all corporal punishment by all persons with authority over children.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, kindergartens, preschools, family centres, etc) and all day care for older children (day centres, after-school childcare, childminding, etc).

Schools – Prohibition of corporal punishment should be enacted in legislation applicable to all schools, public and private.

Penal institutions – Prohibition of corporal punishment should be enacted in relation to disciplinary measures in all institutions accommodating children in conflict with the law.

Legality of corporal punishment

Home

Corporal punishment is lawful in the home. The right of parents to administer “reasonable chastisement” is recognised under English common law. Article 35 of the Children (Jersey) Law 2002 makes it an offence to cause harm to or neglect a child under 16 but states: “(5) Nothing in this Article 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 the child.” Article 79 states that the defence of reasonable corporal punishment of a child is available only when the punishment was inflicted with a hand and only to persons with parental responsibility for the child or to persons without parental responsibility who had the care of the child and the consent of the person with parental responsibility to administer corporal punishment.

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 prohibited in some but not all forms of alternative care. It is prohibited in residential homes in article 9 of the Residential Homes (General Provisions) (Jersey) Order 1995: “(4) The person registered shall ensure that corporal punishment is not used as a sanction in relation to any child in the home.” It is prohibited in homes run by voluntary organisations in article 7 of the Children (Voluntary Homes) (Jersey) Order 2005: “(1) The voluntary organization shall ensure that only its approved disciplinary measures are used on the children. (2) … the following measures shall not be used – (a) any form of corporal punishment….” It is prohibited in foster care in Regulation 14(6) of the Children (Placement) (Jersey) Regulations 2005, which lists the “matters and obligations to be covered in foster care agreements”, including “a prohibition on the foster parent administering corporal punishment to any child placed with the foster parent”.

 

Day care

Corporal punishment is lawful in early childhood care and in day care for older children. There is no prohibition of corporal punishment in the Day Care of Children (Jersey) Law 2002.

 

Schools

There appears to be no explicit prohibition in law of corporal punishment in schools, and article 35 of the Children (Jersey) Law 2002 confirms the right of a teacher “to administer punishment” (see under “Home”). According to the Education (Jersey) Law 1999, the Minister may make a statement of general principles relating to behaviour and discipline and may provide guidance in this respect (art. 34); it is the responsibility of the head teacher to determine the standards of behaviour in the school and the measures for enforcing them (art. 35), which must be consistent with the principles determined by the Minister and must “have regard” to the guidelines.

In reporting to the Committee Against Torture in 2013, the Government stated that corporal punishment in Jersey schools is prohibited “by Act of the Education Committee dated 10 December 1986”.[3] We are seeking to verify this and to ascertain whether it is a reference to law or to policy/guidance.

 

Penal institutions

Corporal punishment is considered unlawful as a disciplinary measure in penal institutions, but there is no explicit prohibition. Under the Prison (Jersey) Law 1957, the Minister may make rules for discipline and control of persons detained in prisons and other institutions (art. 29): there is no provision for corporal punishment in the Prison (Jersey) Rules 2007.

 

Sentence for crime

Corporal punishment is unlawful as a sentence for crime. There is no provision for judicial corporal punishment in the Criminal Justice (Jersey) Law 1957 or the Criminal Justice (Young Offenders) (Jersey) Law 1994. The Human Rights (Jersey) Law 2000 incorporates the European Convention on Human Rights into domestic law, including the prohibition of torture or inhuman or degrading treatment or punishment (art. 3).

 

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:[4]

“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.[5] 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”.[6]

Examination in the second cycle of the UPR took place in 2012 (session 13). The following recommendations were made:[7]

“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.[8]

The UK’s third cycle examination took place in 2017 (session 27). The following recommendations were made:[9]

“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.”[10]


Prevalence/attitudinal research for Jersey 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] 27 March 2013, Written replies to list of issues, para. 43.9; see also para. 598

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

[5] 23 May 2008, A/HRC/8/25, Report of the working group, para. 25

[6] 25 August 2008, A/HRC/8/25/Add.1, Report of the working group: Addendum, paras. 28, 29 and 30

[7] 6 July 2012, A/HRC/21/9, Report of the working group, paras. 110(78), 10(79) and 110(80)

[8] 17 September 2012, A/HRC/21/9/Add.1, Report of the working group: Addendum, annex

[9] 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)

[10] 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

20,664 (Government of Jersey, 2011)

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 International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights apply in Jersey.

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

Notes

Jersey is a British Crown Dependency. As such, it is not part of the UK and has no representation in Parliament. It is internally self-governing, with its own legislative assembly responsible for making primary and secondary domestic legislation, the former requiring Royal Assent or Sanction. It has its own administrative, fiscal and legal system and its own courts of law. The British Crown, acting through the Privy Council, is ultimately responsible for the good government of Jersey.

According to the UK’s 2014 Common Core Document, the following treaties apply in Jersey: 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 and the UN Convention on the Rights of the Child. 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 Jersey accessible via the links above or go to the UK country report.

Translation

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