Court/Judicial body: European Court of Human Rights
Date: March 25, 1993 CRC
Provisions: Article 16: Protection of privacy; Article 28: Education
Other international provisions:European Convention on Human Rights, Articles 1 (obligation to respect human rights), 3 (freedom from degrading punishment), 8 (right to respect for private life), 13 (right to an effective remedy)
Domestic provisions: Offences Against the Person Act 1861, as amended, Section 47 (assault resulting in bodily harm) Children and Young Persons Act 1933, Section 1 (assault or ill-treatment of a child)
Background: A seven-year old boy was subjected to corporal punishment by the headmaster of the private boarding school which he attended. The punishment was in line with the school’s disciplinary code, and involved being “slippered” three times over the clothes with a rubber-soled shoe three days after the boy was notified that he was to face corporal punishment for his actions. The boy and his mother sued to challenge the legality of corporal punishment alleging that the boy had suffered degrading treatment and unjustified interference with his right to respect for his private life. He further alleged that he had no effective remedy under United Kingdom law in respect of his complaints.
Issue and resolution: Corporal punishment. The Court found that the particular corporal punishment administered was not degrading and that none of the boy’s or his mother’s rights had been violated.
Court reasoning: As an initial matter, the Court noted that the UK could be held responsible for disciplinary practices at all of the country’s schools given the obligation to ensure children’s right to education. With regard to the particular case, the Court stated that in order for the punishment to be “degrading” and in breach of Article 3, the humiliation or debasement involved must attain a particular level of severity and exceed the usual element of humiliation inherent in any punishment. Assessing whether punishment is degrading involves looking at the full circumstances of the case, and there was no evidence here of any severe or long-lasting effects. As such, the punishment could not be considered degrading. In addition, the administration of corporal punishment at school did not amount to a violation of the family’s right to private life, and the boy was free to pursue a civil remedy for assault against the headmaster.
Dissenting opinion: The official and formalised nature of the corporal punishment is noteworthy; after forcing the boy to wait three days, the headmaster “whacked” a lonely and insure child without the consent of his mother. This punishment is clearly degrading and a violation of the boy’s rights.
Excerpt citing CRC and other relevant human rights 30. In its Tyrer v. the United Kingdom judgment of 25 April 1978 (Series A no. 26), the Court has already held that corporal punishment may constitute an assault on a person’s dignity and physical integrity as protected under Article 3 (art. 3). However, as was pointed out in paragraph 30 of that judgment, in order for punishment to be “degrading” and in breach of Article 3 (art. 3), the humiliation or debasement involved must attain a particular level of severity and must in any event be other than that usual element of humiliation inherent in any punishment. Indeed, Article 3 (art. 3), by expressly prohibiting “inhuman” and “degrading” punishment, implies that there is a distinction between such punishment and punishment more generally. The assessment of this minimum level of severity depends on all the circumstances of the case. Factors such as the nature and context of the punishment, the manner and method of its execution, its duration, its physical and mental effects and, in some instances, the sex, age and state of health of the victim must all be taken into account (see the Ireland v. the United Kingdom judgment of 18 January 1978, Series A no. 25, p. 65, para. 162, the above-mentioned Tyrer judgment, Series A no. 26, pp. 14-15, paras. 29-30, and the above-mentioned Soering judgment, Series A no. 161, p. 39, para. 100). 32. … A punishment which does not occasion such effects may fall within the ambit of Article 3 (art. 3) (see the above-mentioned Tyrer judgment, Series A no. 26, pp. 16-17, para. 33), provided that in the particular circumstances of the case it may be said to have reached the minimum threshold of severity required. … 35. …At school a child was in the public world where he had to learn to respect the privacy of others and was end to have his own private life respected, as was recognised by Article 16 of the United Nations Convention on the Rights of the Child of 20 November 1989, and to be treated with dignity. 36. …The particular disciplinary measure taken against Jeremy Costello-Roberts for a series of minor breaches of school rules did not attain, in the opinion of the Court, a level of severity which was sufficient to bring it within the ambit of Article 3 (art. 3) (see paragraph 32 above), the Convention Article which expressly deals with punishment and therefore provides a first point of reference for examining a case concerning disciplinary measures in a school. The Court does not exclude the possibility that there might be circumstances in which Article 8 (art. 8) could be regarded as affording in relation to disciplinary measures a protection which goes beyond that given by Article 3 (art. 3). Having regard, however, to the purpose and aim of the Convention taken as a whole, and bearing in mind that the sending of a child to school necessarily involves some degree of interference with his or her private life, the Court considers that the treatment complained of by the applicant did not entail adverse effects for his physical or moral integrity sufficient to bring it within the scope of the prohibition contained in Article 8 (art. 8). While not wishing to be taken to approve in any way the retention of corporal punishment as part of the disciplinary regime of a school, the Court therefore concludes that in the circumstances of this case there has also been no violation of that Article (art. 8). 40. … the effectiveness of a remedy for the purposes of Article 13 (art. 13) does not depend on the certainty of a favourable outcome (see, as the most recent authority, the Pine Valley Developments Ltd and Others v. Ireland judgment of 29 November 1991, Series A no. 222, p. 27, para. 66); …. In so far as the applicant’s arguments relate to the more general question of the scope of the relevant domestic law, the Court recalls that Article 13 (art. 13) does not go so far as to guarantee a remedy allowing a Contracting State’s laws as such to be challenged before a national authority on the ground of being contrary to the Convention or to equivalent domestic legal norms (see, among other authorities, the James and Others v. the United Kingdom judgment of 21 February 1986, Series A no. 98, p. 47, para. 85).
Follow up: The right of reasonable chastisement by a teacher was severely restricted by Section 548 of the Education Act 1996, which saw the abolition of corporal punishment for the majority of school children. However, Section 550A of the Education Act 1996 provides that a member of staff of a school may use, in relation to any pupil at the school, such force as is reasonable in the circumstances for the purpose of preventing the pupil committing an offence, causing personal injury to, or damage to property of, any person or engaging in any behaviour prejudicial to the maintenance of good order and discipline at the school or among its pupils. In September 2000, the European Court rejected unanimously and without a hearing an application by individuals associated with a group of Christian private schools in the UK, alleging that the implementation of a ban on corporal punishment in private schools breached parents’ rights to freedom of religion and family life. (Decision on admissibility of Application no. 55211/00 by Philip Williamson and Others against the UK).
CRIN comments: CRIN believes this decision is inconsistent with the CRC. Under Article 19 of the Convention, children have the right to be protected from all forms of violence. As interpreted by the Committee on the Rights of the Child, this includes the right to be protected from corporal punishment in all settings, including schools.
Citation: 19 EHRR 112, Application no. 13134/87
Link to Full Judgment: http://www.bailii.org/eu/cases/ECHR/1993/16.html