Last updated: November 2015
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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, penal institutions and as a sentence for crime.

Article 226 of the Penal Code 1965 confirms “the right of any parent, teacher, or other person, having the lawful control of a child or young person to administer reasonable punishment to him”, reflecting the near universal acceptance of corporal punishment in childrearing. This provision should be repealed, together with provisions for “discipline” in the Constitution 1978, so that there is clarity in law that no corporal punishment of children, however light, can be considered “reasonable”. Prohibition should be enacted of all corporal punishment, in all settings and by all adults with authority over children.

Alternative care settings – Prohibition should be enacted of all corporal punishment in 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Schools – Article 29 of the Education Act 1976 should be repealed and explicit prohibition enacted which applies to all education settings, public and private.

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

Sentence for crime – Article 8 of the Island Courts Act 1965 should be repealed.

Legality of corporal punishment

Home

Corporal punishment is lawful in the home. The maintenance of family discipline is one of the principles of the Constitution 1978 (principle 4): “Amongst the values that the people of Tuvalu seek to maintain are their traditional forms of communities, the strength and support of the family and family discipline.” Article 17(2) of the Constitution provides for a person under 18 to be detained “in the reasonable exercise of the authority of a parent, teacher or guardian, or under the order of a court for the purpose of his education, welfare or proper discipline”. The Government has stated that this “envisages lawful corporal punishment”.[1]

Cruelty to children is addressed in article 226 of the Penal Code 1965, but this also states: “Nothing in this section shall be construed as affecting the right of any parent, teacher, or other person, having the lawful control of a child or young person to administer reasonable punishment to him.”

The Government plans to carry out a progressive review of its laws as part of the Te Kakeega II The National Development Plan for Tuvalu 2005-2015. During the Universal Periodic Review of Tuvalu in 2008, the Government stated that the issue of corporal punishment of children was being addressed as part of efforts to harmonise domestic laws with international human rights standards.[2] During the second cycle review in 2013, the Government reported efforts to address abuse but made no reference to corporal punishment in the home: recommendations to prohibit corporal punishment in all settings were both accepted and rejected.[3]

The Family Protection and Domestic Violence Act 2014 was passed by Parliament on 18 December 2014. The Act protects children as well as adults from domestic violence, but this does not include prohibition from corporal punishment in childrearing. The Act defines the offence of domestic violence n article 38: “(1) A person who commits physical, sexual, verbal, psychological or economic abuse against another person in a domestic relationship commits an offence of domestic violence.” The Act does not repeal the right “to administer reasonable punishment” in the Penal Code.

 

Alternative care settings

Corporal punishment is lawful in alternative care settings under the right “to administer reasonable punishment” in article 226 of the Penal Code 1965 (see under “Home”). However, in the case of persons in the mental health wing of the hospital, the Mental Health Wing Management Regulations under the Mental Treatment Act 1927 state that attendants “shall not, on any account, punish patients … [and] shall not use harsh, or intemperate language to the patients, whatever the language or the conduct of the patients may be” (reg. 25) and “no patient shall be struck” (reg. 27).

 

Day care

Corporal punishment is lawful in early childhood care and in day care for older children under the right “to administer reasonable punishment” in article 226 of the Penal Code 1965 (see under “Home”). Provisions for corporal punishment in article 29 of the Education Act 1976 possibly apply to preschool provision (see under “Schools”) (information unconfirmed).

 

Schools

Corporal punishment is lawful in schools under article 29 of the Education Act 1976: “(1) No teacher, other than a head-teacher, shall administer corporal punishment to any pupil. (2) If a head-teacher administers corporal punishment to any pupil, he shall record details of the punishment administered and the offence for which the corporal punishment was administered in a book to be kept at the school for that purpose. (3) The Minister may give directions for further controlling corporal punishment in schools.” As at February 2012, no Ministerial directions on corporal punishment had been issued. The right “to administer reasonable punishment” in article 226 of the Penal Code 1965 also applies (see under “Home”).

During the Universal Periodic Review of Tuvalu in 2013, the Tuvalu Director of Education reported that the Education Act had been reviewed with a view to integrating human rights concerns and that Tuvalu was addressing the issue of corporal punishment; Tuvalu requested support from the international community in this respect.[4]

 

Penal institutions

There is no provision for corporal punishment as a disciplinary measure in the Prisons Act 1985. Article 55 of the Police Powers and Duties Act 2009 prohibits corporal punishment: “A police officer must not use corporal punishment against a person who is in police custody.” Corporal punishment is presumably lawful in other penal institutions under the right “to administer reasonable punishment” in article 226 of the Penal Code 1965 (see under “Home”).

 

Sentence for crime

Corporal punishment is lawful as a sentence for crime. There is no provision for judicial corporal punishment in the Penal Code 1965, the Criminal Procedure Code 1963, the Magistrates Court Act 1963 or the Superior Courts Act 1987, but a male child or young person may be caned under article 8(8) of the Island Courts Act 1965: “In lieu of any other sentence which an island court may lawfully impose on any male child [under 14] or male young person [aged 14-16], the provisions of section 6(1) [providing for imprisonment and fines] to the contrary notwithstanding, it may order his parent or guardian to cane him with a specific number of strokes of a cane not exceeding, in the case of a child, 6 strokes, and in the case of a young person, 10 strokes; and any strokes so ordered shall be administered in accordance with such regulations as may, for the time being, be in force and in the presence of a member of the island court.” Failure to carry out the order is an offence under article 8(9): “Any parent or guardian who without lawful justification or excuse fails to obey an order given under subsection (8) shall commit an offence triable summarily by an island court, or other court of competent jurisdiction, and shall be liable to a fine of $10.”

 

Universal Periodic Review of Tuvalu’s human rights record

Tuvalu was examined in the first cycle of the Universal Periodic Review in 2008 (session 3). The following recommendation was made and was accepted by the Government:[5]

“Reform the Penal Code to cover offences such as sexual abuse against minors and to eliminate corporal punishment (Mexico)”

During the review, the Government confirmed that corporal punishment was being addressed as part of Government efforts to harmonise domestic laws with international human rights standards, but that corporal punishment has traditionally been permitted in family discipline and in primary schools; the Government was raising awareness on the issue and was committed to further consultation with regard to law reform.[6]

The second cycle review of Tuvalu took place in 2013 (session 16). During the review, Tuvalu stated that it was addressing the issue of corporal punishment in schools and requested support from the international community in this respect.[7] The following recommendations were made:[8]

“Harmonize its Penal Code and legislation with the CRC in order to eradicate corporal punishment of children in schools and other settings (Hungary);

“Opt for the prohibition of the use of corporal punishments, especially those involving minors (Spain);

“Adopt, as a matter of priority, all legal and administrative measures to prohibit and punish corporal punishment of children in all settings, including at home (Uruguay);

“Adopt legal and administrative measures to eliminate all forms of corporal punishment of children (Chile)”

The Government’s overall response is unclear: the first two recommendations were accepted, the second two were rejected.

 

Committee on the Rights of the Child, Concluding Observations

Session 064 (2013)

(4 October 2013, CRC/C/TUV/CO/1 Advance Unedited Version, Concluding observations on initial report, paras. 35, 36, 62 and 63)

"The Committee is deeply concerned that the Constitution and the Penal Code allow parents and guardians to use corporal punishment to discipline children and that corporal punishment is still widely practiced in the homes and schools. The Committee is further concerned that Island Courts can authorize physical punishment as a criminal sentence. 

"With reference to the Committee’s general comment Nº 8 (2006) on the right of the child to protection from corporal punishment and other cruel or degrading forms of punishment, the Committee urges the State party to: 

a) undertake awareness-raising programmes, including campaigns, about the negative impact of corporal punishment on the psychological development of children, especially concerning their dignity, with a view to changing adult perceptions and societal attitudes towards corporal punishment;

b) bring all laws, policies, and regulations in full conformity with the Convention with a view to banning corporal punishment in all schools, homes and communities; 

c) abolish the physical punishment as a criminal sentence by the Island Courts; and

d) promote positive, non-violent and participatory forms of child-rearing and discipline as an alternative to corporal punishment and seek the assistance of UNESCO and UNICEF in this regard in order to build on other successful initiatives in the Pacific Region or elsewhere in the world. 

"The Committee is concerned that: ...

b) The Island Courts Act permits the court to order a parent or guardian to cane a child and that the Penal Code stipulates life imprisonment for child offenders; 

"The Committee strongly urges the State party to bring its juvenile justice system in full accordance with the Convention, in particular articles 37, 39 and 40, and with other relevant standards, including the United Nations Standard Minimum Rules for the Administration of Juvenile Justice (the Beijing Rules), the United Nations Guidelines for the Prevention of Juvenile Delinquency (the Riyadh Guidelines), the Rules for the Protection of Juveniles Deprived of their Liberty (the Havana Rules), the Guidelines for Action on Children in the Criminal Justice System, and the Committee’s general comment No. 10 (2007). The Committee recommends in particular that the State party: ...

c) Repeal the provisions that allow corporal punishment and life imprisonment for child offenders…."

Read more from Session 064 (2013)

Committee on the Elimination of Discrimination Against Women, Concluding Observations

CEDAW session 044 (2009)

(7 August 2009, CEDAW/C/TUV/CO/2, Concluding observations on initial/second report, paras. 39 and 40)

"The Committee welcomes the achievements in the field of education in the context of the Education for Life programme, including the achievement Millennium Development Goal 2 on universal primary education and an adult literacy rate of 95 per cent, and it also notes the State party's geographical constraints. However, the Committee is ... concerned that corporal punishment continues to be lawful in schools under article 29 of the Education Act (1976) and article 226 of the Penal Code, although it is not regularly used.

"The Committee ... recommends that the State party prohibit the use of corporal punishment in schools."

Read more from CEDAW session 044 (2009)

Prevalence/attitudinal research for Tuvalu in the last 10 years

According to a 2006 report on the situation of children, corporal punishment was common and seen by many parents as the “normal” way of “disciplining” children. Corporal punishment was also said to often be used in schools.

(Government of Tuvalu & UNICEF (2006), Tuvalu: A Situation Analysis of Children, Women and Youth, Suva: UNICEF Pacific Office)

Footnotes

[1] 10 October 2012, CRC/C/TUV/1, Initial report to the Committee on the Rights of the Child, para. 148

[2] 9 January 2009, A/HRC/10/84, Report of the working group, para. 41

[3] 5 July 2013, A/HRC/24/8, Report of the working group, paras. 81(53), 81(54), 83(23) and 83(24)

[4]  5 July 2013, A/HRC/24/8, Report of the working group, para. 65

[5] 9 January 2009, A/HRC/10/84, Report of the working group, para. 68(8)

[6] 9 January 2009, A/HRC/10/84, Report of the working group, para. 41

[7] 5 July 2013, A/HRC/24/8, Report of the working group, para. 65

[8] 5 July 2013, A/HRC/24/8, Report of the working group, paras. 82(53), 82(54), 84(23) and 84(24)

Child population

3,580 (UNICEF, 2013)

National and regional advocacy for law reform

No known campaign for law reform

Forthcoming treaty body examinations and UPRs

Universal Periodic Review (UPR): 2018, session 30, deadline for briefing 21 September 2017 (tbc)

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