Repeal of Article 79 Children (Jersey) Law 2002: Instructions for Law Drafting

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A decision made on 13 June 2019

Ministerial decision reference : MD-H-2019-0010

Decision summary title:

Repeal of Article 79 Children (Jersey) Law 2002 – Instructions for Law Drafting

Decision summary author

Policy Principal,

Strategic Policy, Performance and Population

Is the decision summary public or exempt?

Public

Report title:

Repeal of Article 79 Children (Jersey) Law 2002 – Instructions for Law Drafting

Report author or name of

person giving report

Policy Principal,

Strategic Policy, Performance and Population

Is the report public or exempt?

Public

Decision and reason for the decision

The Minister for Children and Housing authorised Officers in the Department for Strategic Policy, Performance and Population to liaise withe the Principal Legislative Drafter to request the preparation of the draft Amendment Law.

To comply with the States Assembly decision to prohibit the use of corporal punishment in all circumstances as set out in P.144/2018 Children (Jersey) Law 2002: Repeal of Article 79.

Resource implications: There are no resource implications arising from this Ministerial Decision.

Action required

Policy Principal, Strategic Policy, Performance and Population to liaise with the Principal Legislative Drafter to request that amendments to the Children (Jersey) Law 2002 be drafted.

Signature

Position

Senator Sam Mézec

Minister for Children and Housing

Date signed

Effective date of the decision

Repeal of Article 79 Children (Jersey) Law 2002: Instructions for Law Drafting

Repeal of Article 79 Children (Jersey) Law 2002 – Instructions for Law Drafting

On 15 January 2019 the States Assembly voted to adopt Deputy Le Hegarat’s proposition to repeal Article 79 of the Children (Jersey) Law 2002 (P.144/2018), with 38 votes for and 3 against. In adopting the proposition the States Assembly agreed:

(a) that Article 79 of the Children (Jersey) Law 2002 should be repealed, together with any other statutory or customary provision of similar effect;

(b) to request the Council of Ministers to bring forward the necessary legislative amendments; and

(c) to request the Council of Ministers to implement awareness-raising, guidance and training measures in respect of the prohibition of corporal punishment in conjunction with the introduction of the legislative amendments.

The Minister for Children and Housing has instructed officers in the Department for Strategic Policy, Performance and Population to liaise with the Principal Legislative Drafter to prepare the requisite legislative amendments in order to comply with this States Assembly decision. In addition, the Minister has requested officers to ensure that a new legislative provision is developed to include an explicit prohibition of corporal punishment in all settings.

The States Assembly voted to repeal Article 79 of the Children (Jersey) Law 2002 (“the 2002 Law”). In effect, after Article 79 of the 2002 Law is repealed, the defence of reasonable corporal punishment to a charge of criminal assault will no longer be available to those with parental responsibility for a child, and relatives caring for a child. As a result, parents or those with parental consent who administer any form of corporal punishment and who are charged with criminal assault will not have a statutory defence available to them.

In order to comply with the States Assembly decision, Article 35(5) of the 2002 Law must also be repealed as it refers to a ‘right’ of parents, teachers and others with lawful control or charge of a child to administer punishment to a child, and provides a defence to a charge of causing harm to or neglecting children under 16 (under Article 35(1) of the 2002 Law). Customary law provisions for a defence of reasonable corporal punishment must also be repealed by placing a provision to this effect in legislation.

The UN Committee on the Rights of the Child has made it clear that part of a States Party’s obligation under Article 19 of the United Nations Convention on the Rights of the Child (UNCRC) to pursue legal reforms to protect children from violence extends to an explicit prohibition of corporal punishment in all settings.[1] In order to uphold children’s rights under the UNCRC, an explicit prohibition on corporal punishment will therefore be included in draft legislative amendments.

[1] See United Nations Committee on the Rights of the Child, General Comment No.8