Court/Judicial body:House of Lords
Date: 24 February 2005 CRC
Provisions: Article 3: Best interests of the child Article 19: Protection from abuse and neglect Article 28: Education Article 37: Torture and deprivation of liberty
Other international provisions:European Convention on Human Rights, Article 9 (Freedom of thought, conscience and religion), Article 8 (Right to respect for private and family life), and Article 2 of the First Protocol to the Convention (Right to education).
Domestic provisions:Education Act 1996, s548 (No right to give corporal punishment);Human Rights Act 1998, Schedule 1, Part I, Articles 8 (Right to respect for private and family life), 9 (Freedom of thought, conscience and religion), Part II, Article 2 (Right to education).
Case summary
Background: Section 548 of the Education Act 1996 effectively prohibited corporal punishment in schools in England and Wales, and a challenge was brought to this prohibition by teachers at, or parents who sent their children to, independent private schools which had been established specifically to provide Christian education based on biblical observance. These schools enforced discipline through the use of mild corporal punishment where appropriate, as agreed to by the parents of the children by virtue of what they claimed to be part of their fundamental Christian beliefs that such discipline should be administered as an integral part of the teaching and education of children. While the punishment was carried out by teachers in some schools and by parents in others, both argued that the teachers had the right to administer such punishment. The parents and teachers argued that the prohibition on corporal punishment in schools violated their rights to freedom of religion, to education in conformity with religious convictions, and to family life under the European Convention on Human Rights and its First Protocol.
Issue and resolution: Corporal punishment in schools. The House of Lords upheld the ban on corporal punishment in schools in finding that although the ban on corporal punishment in schools interfered with the parents right to freedom of religion, that interference was justified in the interests of protecting the rights and freedoms of children.
Court reasoning: Parents are end to hold the religious conviction that mild corporal punishment is necessary for the upbringing of children. While the government must consider this conviction, the right to freedom of religion is not unqualified, and the law banning corporal punishment in schools respects children’s rights and freedoms by protecting them from the deliberate and potentially harmful infliction of physical violence. The government is end to weigh these different rights as it sees fit, and its decision to ban corporal punishment in schools in the best interests of children must be respected.
Excerpt citing CRC and other relevant human rights 80. Above all, the state is end to give children the protection they are given by an international instrument to which the United Kingdom is a party, the United Nations Convention on the Rights of the Child (“UNCRC”). 81. Article 3(1) of UNCRC requires that: “In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.” Article 37 requires that: “States parties shall ensure that: (a) No child shall be subjected to torture or other cruel, inhuman or degrading treatment or punishment…” More significantly, in the present context, Article 1991) provides: “States parties shall take all appropriate legislative, administrative, social and educational measures to protect the child from all forms of physical or mental violence, injury or abuse, neglect or negligent treatment, maltreatment or exploitation, including sexual abuse, while in the care of parent(s), legal guardian(s) or any other person who has the care of a child.” This is reinforced by Article 28(2): “States parties shall take all appropriate measures to ensure that school discipline is administered in a manner consistent with the child’s human dignity and in conformity with the present Convention.” 81. Article 3(1) of UNCRC requires that: “In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.” Article 37 requires that: “States parties shall ensure that: (a) No child shall be subjected to torture or other cruel, inhuman or degrading treatment or punishment …” More significantly in the present context, Article 19(1) provides: “States parties shall take all appropriate legislative, administrative, social and educational measures to protect the child from all forms of physical or mental violence, injury or abuse, neglect or negligent treatment, maltreatment or exploitation, including sexual abuse, while in the care of parent(s), legal guardian(s) or any other person who has the care of the child.” This is reinforced by Article 28(2): “States parties shall take all appropriate measures to ensure that school discipline is administered in a manner consistent with the child’s human dignity and in conformity with the present Convention.” 82. The United Nations Committee on the Rights of the Child commented, in its consideration of the United Kingdom’s first report on its compliance with the Convention (see “Concluding Observations of the Committee on the Rights of the Child: United Kingdom” (February 1995), para 16), that it was “worried about the national legal provisions dealing with reasonable chastisement within the family. The imprecise nature of the expression of reasonable chastisement as contained in these legal provisions may pave the way for it to be interpreted in a subjective and arbitrary manner. Thus, the committee is concerned that legislative and other measures relating to the physical integrity of children do not appear to be compatible with the provisions and principles of the convention, including those of its articles 3, 19 and 37. The committee is equally concerned that privately funded and managed schools are still permitted to administer corporal punishment to children in attendance there which does not appear to be compatible with the provisions of the convention, including those of its Article 28 , paragraph 2.” The committee went on to recommend that physical punishment of children in families be prohibited “in the light of the provisions set out in articles 3 and 19 of the convention” (para 31); further “legislative measures are recommended to prohibit the use of corporal punishment in privately funded and managed schools” (para 32). 83. At its second review in October 2002, the committee welcomed the abolition of corporal punishment in all schools in England, Wales and Scotland following its 1995 recommendations: see “Concluding Observations: United Kingdom of Great Britain and Northern Ireland” (9 October 2002), para 35. It went on, at para 38: “The committee recommends that the state party: (a) with urgency adopt legislation throughout the state party to remove the ‘reasonable chastisement’ defence and prohibit all corporal punishment in the family and in any other contexts not covered by existing legislation; (b) promote positive, participatory and non-violent forms of discipline and respect for children’s equal right to human dignity and physical integrity, involving children and parents and all those who work with and for them, and carry out public education programmes on the negative consequences of corporal punishment.” 84.
We are not in this case concerned with physical punishment within the family. This raises more complex questions than does corporal punishment in institutional settings. That is no doubt why the committee’s 1995 recommendations (quoted above) were more nuanced. But in relation to corporal punishment in schools they have been quite unequivocal. The committee’s recommendations have also been endorsed by the United Nations Committee on Economic, Social and Cultural Rights: see “Concluding Observations of the Committee on Economic, Social and Cultural Rights: the United Kingdom of Great Britain and Northern Ireland— Dependent Territories” (5 June 2002), para 36. How can it not be a legitimate and proportionate limitation on the practice of parents’ religious beliefs to heed such a recommendation from the bodies charged with monitoring our compliance with the obligations which we have undertaken to respect the dignity of the individual and the rights of children? … 86. With such an array of international and professional support, it is quite impossible to say that Parliament was not end to limit the practice of corporal punishment in all schools in order to protect the rights and freedoms of all children. Furthermore, the state has a positive obligation to protect children from inhuman or degrading punishment which violates their rights under Article 3. But prohibiting only such punishment as would violate their rights under Article 3 (or possibly Article 8 ) would bring difficult problems of definition, demarcation and enforcement. It would not meet the authoritative international view of what the UNCRC requires. The appellants’ solution is that they and other schools which share their views should be exempted from the ban. But this would raise exactly the same problems. How could it be justified in terms of the rights and protection of the child to allow some schools to inflict corporal punishment while prohibiting the rest from doing so? If a child has a right to be brought up without institutional violence, as he does, that right should be respected whether or not his parents and teachers believe otherwise.
Follow Up: This decision has received positive treatment and been considered and applied in several subsequent cases. In addition, S. 548 of the Education Act 1996 has been amended by the Education and Skills Act 2008 to cover “relevant educational institutions”, which includes not only schools in the traditional sense, but all independent educational institutions in England and Wales.
CRIN Comments: CRIN believes this decision is consistent with the CRC. As noted by the Court, the Committee on the Rights of the Child has interpreted Article 19 to require States parties to prohibit all forms of violence in all settings, including corporal punishment in schools. While freedom of religion must be respected, it cannot take precedence over children’s rights and best interests.
Citation: [2005] UKHL 15
Link to Full Judgment:http://www.publications.parliament.uk/pa/ld200405/ldjudgmt/jd050224/will-1.htm