Last updated: October 2017
Flag of Montserrat Country report for Montserrat

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.

Article 37 of the Juveniles Act 1982 and article 193(6) of the Penal Code 1983 confirm the right of any parent, teacher or other person having the lawful control or charge of a juvenile to administer “reasonable” punishment in the course of parental or school discipline. These provisions should be repealed and prohibition enacted of all corporal punishment by all persons with authority over children.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 settings (nurseries, crèches, kindergartens, preschools, family centres, etc) and all day care for older children (day centres, after-school childcare, childminding, etc).

Schools – Article 49 of the Education Act should be repealed and prohibition enacted in relation to all education settings, including public and private.

Penal institutions – Legislation should prohibit corporal punishment in all institutions accommodating children in conflict with the law.

Legality of corporal punishment

Home

Corporal punishment is lawful in the home. Article 193 of the Penal Code 1983 punishes cruelty to children but states: “(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 or young person to administer punishment to him.” Article 37 of the Juveniles Act 1982 states: “Nothing in this Act or the Penal Code shall be construed as affecting the right of any parent, teacher or other person having the lawful control or charge of a juvenile to administer reasonable punishment to him in the course of normal parental or school discipline.”

In 2007 a number of draft laws had been prepared and were being reviewed by the Legal Department, including a draft Child Welfare and Protection Bill, draft Juvenile Justice Bill and draft Domestic Violence Bill. By February 2016, the Child Care and Protection Bill and the Child Justice Bill had not been enacted.[1] We are seeking further information on the Domestic Violence Bill.

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”.[2] A similar statement was made to the Human Rights Committee in 2015.[3] 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 193(6) of the Penal Code 1983 and “to administer reasonable punishment” in article 37 of the Juveniles Act 1982 (see under “Home”).

 

Day care

Corporal punishment is lawful in early childhood care and in day care for older children under the right “to administer punishment” in article 193(6) of the Penal Code 1983 and “to administer reasonable punishment” in article 37 of the Juveniles Act 1982 (see under “Home”).

 

Schools

In reporting to the Committee on the Rights of the Child in 2014, the Government stated that there is policy against corporal punishment in public (not private) schools.[4] However, this is not confirmed through prohibition in law. On the contrary, the Education Act 2003 (2013 Revision) expressly authorises corporal punishment, stating in article 49: “(1) In the enforcement of discipline in public schools, assisted private schools and private educational institutions degrading or injurious punishment shall not be administered. (2) Corporal punishment may be administered where no other punishment is considered suitable or effective, and only by the principal, deputy principal or any teacher appointed by the principal for that purpose, in a manner which is in conformity with the guidelines issued in writing by the Director. (3) Whenever corporal punishment is administered an entry shall be made in a punishment book which shall be kept in each school for such purpose indicating the nature and extent of the punishment and the reasons for administering it. (4) A person other than those mentioned in subsection (2) who administers corporal punishment to a student on school premises commits an offence and shall be liable on summary conviction to a fine not exceeding $1,000.” Article 193(6) of the Penal Code 1983 and article 37 of the Juveniles Act 1982 also apply (see under “Home”).

 

Penal institutions

There is no explicit prohibition of corporal punishment as a disciplinary measure in penal institutions. The Prison Act 1955 does not refer to corporal punishment but provides for the making of rules “for the regulation and management of prisons, the conduct, discipline and duties of the officers employed therein, and the classification, treatment, employment, discipline and control of prisoners” (art. 21). The Prison Rules 2000 do not provide for corporal punishment; 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” and that juvenile prisoners “shall be treated in a manner appropriate to his or her age” (art. 8). We have been unable to confirm that this is interpreted as prohibiting corporal punishment in all institutions accommodating children in conflict with the law, although the Government has stated that it is not used in these settings.[5]

 

Sentence for crime

According to the Government, corporal punishment was abolished as a sentence for crime in 1991.[6] There is no provision for judicial corporal punishment in the Penal Code 1983, the Criminal Procedure Code 2010, the Magistrate’s Court Act 1984 or the Juveniles Act 1982. Article 4 of the Constitution 2010 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]


Prevalence/attitudinal research for Montserrat in the last 10 years

None identified.

Footnotes

[1] http://www.themontserratreporter.com/children-remanded-to-prison/, accessed 6 July 2016; see also http://www.themontserratreporter.com/child-safeguarding-gets-funding-to-move-into-effect/, accessed 6 July 2016

[2] [2014], CRC/C/GBR/5, Fifth state party report, annex, para. 11

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

[4] [2014], CRC/C/GBR/5, Fifth state party report, annex

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

[6] 20 July 1998, CAT/C/44/Add.1, Third report to the Committee Against Torture, para. 199

[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

1,382 (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 International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights apply in Montserrat.

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

Notes

Montserrat 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 Montserrat: 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 Montserrat 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.