AS TO THE ADMISSIBILITY OF
Application No. 25599/94
by A and B
against the United Kingdom
The European Commission of Human Rights sitting in private on
9 September 1996, the following members being present:
Mr. S. TRECHSEL, President
Mrs. G.H. THUNE
Mrs. J. LIDDY
MM. H. DANELIUS
L. LOUCAIDES
M.P. PELLONPÄÄ
B. MARXER
G.B. REFFI
M.A. NOWICKI
I. CABRAL BARRETO
B. CONFORTI
N. BRATZA
I. BÉKÉS
J. MUCHA
D. SVÁBY
A. PERENIC
P. LORENZEN
K. HERNDL
E.A. ALKEMA
M. VILA AMIGÓ
Mr. H.C. KRÜGER, Secretary to the Commission
Having regard to Article 25 of the Convention for the Protection
of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 15 July 1994 by
A and B against the United Kingdom and registered on 7 November 1994
under file No. 25599/94;
Having regard to:
- the reports provided for in Rule 47 of the Rules of Procedure of
the Commission;
- the observations submitted by the respondent Government on
12 October 1995 and the observations in reply submitted by the
applicant on 29 December 1995;
- the parties' oral submissions at the hearing on 9 September 1996;
Having deliberated;
Decides as follows:
THE FACTS
The applicants are both United Kingdom citizens. The first
applicant was born in 1984 and the second applicant, his father, was
born in 1958. The applicants are represented before the Commission
by Mr. M. Gardner, solicitor, of Messrs. Morgan Bruce Binks Stern,
London. The facts of the case, as submitted by the parties, may be
summarised as follows.
(i) The particular circumstances of the case
The first applicant and his brother were placed on the local
Child Protection Register in May 1990. The first applicant was put on
the Register because of "known physical abuse". After the co-habitee
of the first applicant's mother admitted hitting the first applicant
with a cane, he was given a police caution, and both boys were removed
from the Child Protection Register in November 1991. The co-habitee
subsequently married the first applicant's mother and became his
stepfather.
In February 1993, the headteacher at the first applicant's school
reported to the local Social Services Department that the first
applicant's brother had disclosed that the first applicant was being
hit with a stick by his stepfather. The stepfather was arrested on
5 February 1993. He was released on bail the next day.
The stepfather was charged with assault and tried in
February 1994. The judge's summing-up refers to the evidence and the
relevant issues as follows:
"... What is it the prosecution must prove? If a man
deliberately and unjustifiably hits another and causes some
bodily injury, bruising or swelling will do, he is guilty of
actual bodily harm. What does unjustifiably mean in the context
of this case? It is a perfectly good defence that the alleged
assault was merely the correcting of a child by its parent, in
this case the stepfather, provided that the correction be
moderate in the manner, the instrument and the quantity of it.
Or, put another way, reasonable. It is not for the defendant to
prove it was lawful correction. It is for the prosecution to
prove it was not.
This case is not about whether you should punish a very difficult
boy. It is about whether what was done here was reasonable or
not and you must judge that...
... What are the two arguments put before you? The prosecution
say this boy was caned. He was caned hard as is evidenced, they
say, by the bruises. That it occurred over the period of a week
before his examination on 5 February of last year. They say on
several occasions. They say never in front of the boy's mother.
They say it was excessive, no matter how difficult a nine year
old was and that it was not lawful correction. That is their
case.
The defence say here was a boy who on all accounts was very, very
difficult to handle. He would not respond to school discipline.
He was not helped by ... Doctor B. He would not respond to
anything that the social services could do and he could not be
controlled at home. They do not deny, effectively, the repeated
caning. They say it was necessary, justified and reasonable and
he may have bruised more easily because of the drugs he was
prescribed for asthma or because he simply bruised more easily.
Those are the two arguments to consider, condensed I hope, to the
minimum.
What was the evidence for the prosecution first of all? On
5 February last year [the first applicant] was examined by an
experienced consultant paediatrician at the ... Hospital ...
Doctor V. She noticed a number of bruises on his body. You now
have a photocopy of that diagram that she drew at the time
putting them actually on the body...
First she referred to a fresh red linear bruise on the back of
the right thigh. She thought that was a single blow. She
described the blood being squeezed out of the capillaries, do you
remember, to cause those two lines on either side. She thought
it was consistent with a blow from a garden cane that we have
heard about and she thought it was an injury which occurred
within twenty-four hours of that examination on the 5th but she
said it is very difficult to be sure and to estimate. She could
be out on that.
The second injury that she saw which you may think relevant was
a double bruise on the back of the left calf, also linear. She
thought that looked a little bit older than the first one. She
said it showed two separate linear lines and that meant two
separate blows...
The fourth injury that she described two feint lines on the back
of the left thigh. They looked similar to the other in type.
Two blows she thought had caused them. 'I think they were one-
two days old.'
The fifth injury then. Linear bruises on the right bottom. They
were linear. There were three at different ages. 'I thought
they were older than the ones on the thigh and the left calf.
I thought they were up to one week old. I thought they were
caused possibly at different times to each other.' That is the
three she was referring to. Those three bruises caused at
different times to each other. 'They were oblique and suggested
3 separate times.'
Finally number six, she referred to the two circular brownish
bruises but again, you may think they have nothing to do with the
case. It is a matter for you, but she also included in the
number six a fading linear bruise, probably several days old.
She said in general terms, 'I thought the bruising was consistent
with the use of a garden cane and more than one time because the
bruises were at different stages. Two was an absolute - twice
that is - was an absolute minimum.' The most recent bruises she
put within twenty-four hours. The oldest, about one week. She
said that for a cane to cause bruising it must be used with
considerable force. 'It squeezes blood out of the capillaries.
A cane used with less force would not cause bruising. If it was
used over clothing that would soften the blow considerably
because it would spread the force.'
She confirmed, as you know that Doctor C. was treating the [first
applicant] as a consultant for asthma and for behaviour problems
and it seems to be agreed all round that this little boy at that
time at any rate was a difficult little boy. She was asked by
Mr. B. about vitamin C deficiency, scurvy and said she had never
seen a child with scurvy in her whole career. Vitamin K
deficiency, again, it was suggested that would cause a tendency
to bruise in children. She said, 'Yes, in children with liver
disease or babies,' but [the first applicant] in her opinion was
not suffering from it. She said, 'I felt the general bruises on
his body were not excessive.' That was her explanation if you
remember as to why she did not conduct any blood tests on the
boy...
... [Doctor B.] said in terms, in answer to [prosecuting counsel]
ultimately, that fifty ... tablets prescribed in December 1992
would not lead to skin thinning or cause [the first applicant]
to bruise more easily.
So what did [the first applicant] tell you? His evidence was not
really in dispute, was it? ... He was asked about the visit to
hospital. 'Something had happened before I went to hospital.
I had the stick at home. X. gave me the stick. He gave to it
me more than once. I can't remember how many times. Sometimes
he would hit my legs. It hurt a lot when he did this. It made
me cry. It was a stick out of the garden. X. kept it in a
cupboard in the house. I don't know why X. gave me the stick.
He didn't say anything. It hurt a bit and a lot when I was given
the stick. I can't remember how long before that visit to
hospital X. gave me the stick. Sometimes it was daytime.
Sometimes it was nighttime. It was always at home.'
... The defence did call a witness, [the first applicant's
mother] ... She said that [the first applicant] had been, my
words, 'real trouble really ever since he was two years old.'
She used the expression: 'He was a handful.' ... She said: '[The
first applicant] has always been one to have a lot of bruises.
My mother and I bruise easily. We are asthmatics. [The first
applicant] always has a lot of bruises.'
... She said that she was unaware that her husband had been
caning [the first applicant]. She did know that the cane was in
the house. She had never seen him actually use it. She had seen
him threatened with it. 'I had seen the defendant hold the cane
to [the first applicant], though I hadn't done so. I did approve
of my husband threatening [the first applicant] with the cane,
but not beating him with the cane. I don't know when I slap [the
first applicant] if I bruise him or not.'"
The jury found the first applicant's stepfather not guilty of
assault occasioning actual bodily harm by a majority verdict.
(ii) Relevant domestic law
A summary of the domestic law and practice in connection with
corporal punishment in private schools is to be found in the judgment
of the European Court of Human Rights in the Costello-Roberts case
(Eur. Court HR, judgment of 25 March 1993, Series A no. 247-C, pp. 54,
55, paras. 13 - 16).
Of particular relevance to the present case is the defence to
both criminal charges and civil claims that the person against whom the
charge or claim is made was a parent or a person in loco parentis who
administers reasonable and moderate physical punishment with a proper
instrument in a decent manner. The concept of "reasonableness" permits
the courts to apply standards prevailing in contemporary society with
regard to the physical punishment of children.
In criminal proceedings for assault, the burden of proof is on
the prosecution to satisfy the jury, beyond a reasonable doubt, that
an assault was unlawful. The prosecution must prove that the harm was
not the result of reasonable chastisement by someone entitled to
administer it. In civil proceedings for assault, whilst the
substantive law test is the same, the burden of proof of establishing
that chastisement was reasonable is on the defendant, on a balance of
probabilities.
COMPLAINTS
The applicants submit that there was no dispute that the cane had
been kept and used to threaten the first applicant and to hit him
repeatedly. They submit that the judge left the jury in no doubt that
the facts of the repeated canings were not in dispute, and that the
finding of not guilty was therefore clearly based on the defence plea
that the punishments were "necessary, justifiable and reasonable".
The applicants submit that the beating of the first applicant by
his stepfather was in violation of Article 3 of the Convention. They
consider that the State was responsible under Article 1, and that it
failed to secure protection for the first applicant of his rights under
Article 3. They submit press cuttings which indicate that in other
cases similar to the present one, courts have accepted beatings with
sticks, belts and electric flexes, causing heavy bruising, to be
"reasonable" chastisement. They point out that the State employs other
means to protect children from assault in addition to the criminal law
- e.g. investigation by social services, maintenance of non-statutory
child protection registers and the like. They consider, however, that
such protection is undermined by the current state of the law which
allows serious assaults of children in the course of "discipline" to
persist.
In addition, or in the alternative, the applicants allege a
violation of Article 8 of the Convention.
The applicants allege a violation of Article 13 of the Convention
in that the first applicant has no remedy for the violation of his
rights under Articles 3 and 8, and also of Article 14 of the Convention
in that the law on assault effectively protects adults from the
treatment suffered by the first applicant, but not children.
In connection with the question of remedies, the applicants also
claim that they had no domestic remedies within the meaning of Article
26 of the Convention. The second applicant was advised that a civil
action for assault would not prove effective, given that the defence
of "reasonable chastisement" is available in criminal and civil
proceedings. The applicants add that they were not required to pursue
a civil remedy because of the intra-family nature of the case, and
because it would have been wrong to put the first applicant through the
trauma of a further court appearance.
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 15 July 1994 and registered on
7 November 1994.
On 26 June 1995 the Commission decided to communicate the
application to the respondent Government, pursuant to Rule 48
para. 2 (b) of the Rules of Procedure.
The Government's written observations were submitted on
12 October 1995, after an extension of the time-limit fixed for that
purpose. The applicants replied on 29 December 1995, also after an
extension of the time-limit.
On 5 December 1995 the Commission granted the applicants legal
aid.
On 13 May 1996 the Commission decided to invite the parties to
a hearing on the admissibility and merits of the case. At the hearing,
which was held on 9 September 1996, the parties were represented as
follows.
The Government:
Mr. Martin R. Eaton, Agent of the Government
Mr. David Pannick, QC, Counsel
Mr. Mark Shaw, Counsel
Ms. Caroline Price, Adviser, Home Office
Ms. Sue Ryan, Adviser, Department of Health
Ms. Sue Ball, Adviser, Department of Health
Ms. Betty Moxon, Adviser, Home Office
The applicants:
Mr. Allan Levy, QC, Counsel
Mr. Peter Duffy, Counsel
Mr. Michael Gardner, Solicitor
Mr. Peter Newell, Adviser
Mr. Nicholas Grief, Pupil Barrister
THE LAW
1. The first applicant alleges violations of Articles 3, 8, 13 and
14 (Art. 3, 8, 13, 14) of the Convention in connection with the caning
of the first applicant by his stepfather.
The Government first underline that they are not responsible for
the conduct of the first applicant's stepfather. They contrast the
position with that of corporal punishment in school, where States are
under an obligation to provide education, and hence have responsibility
for matters occurring in school, even in private schools (see Eur.
Court HR, Costello-Roberts v. the United Kingdom judgment of
25 March 1993, Series A no. 247-C, pp. 57, 58, paras. 26 - 28). By
reference to the Young, James and Webster case (Eur. Court HR, judgment
of 13 August 1981, Series A no. 44), the Government accept
responsibility in this context only in relation to the content of the
relevant domestic law.
The Government claim that a civil action for assault would have
been an effective remedy in respect of a complaint about corporal
punishment, and say that there was no excuse for the applicants'
failure to bring such an action. The unwillingness of the applicants
not to use the remedy for personal reasons does not alter that
conclusion. The Government also point out that, because of the
different burdens of proof in civil and criminal cases, the applicants
would have had a better chance of success in a civil action than in the
criminal prosecution.
In connection with Article 3 (Art. 3), the Government claim that
it is clear from the judgment of the Court in the Costello-Roberts case
that corporal punishment is not prohibited in the school context, and
the provision cannot impose higher standards in the home. They contend
that corporal punishment administered in private by a parent is less
likely to breach the standards of Article 3 (Art. 3) than in school,
where the punishment is likely to be administered by a relative
stranger, in the presence of others. They add that there was no
institutional context in the present case, that there was no suggestion
of any injury other than bruising, and that the jury was not satisfied
that the stepfather's conduct was unreasonable in all the
circumstances, having regard to the manner, method and degree of
punishment. The jury heard and saw the witnesses, an advantage which
the Commission does not have.
As to the state of the domestic law, the Government argue that
the domestic law complies with the requirements of Article 3
(Art. 3). In particular, there is criminal and civil liability for
corporal punishment which is not reasonable in all the circumstances,
having regard to the manner, method and degree of punishment. In each
case, the test requires contemporary standards to be applied. The
Government contend that the criteria applied by English law are
therefore very similar to those applied by the Court in relation to
Article 3 (Art. 3)of the Convention.
In connection with Article 8 (Art. 8) of the Convention, the
Government, again with reference to the Costello-Roberts case, recall
that it would be rare for school disciplinary measures which do not
breach Article 3 (Art. 3) to be in breach of Article 8 (Art. 8). They
submit that a similar reasoning applies in the context of disciplinary
measures in the home. As to the alleged imprecision of the criterion
of reasonable chastisement, the Government recall that it is impossible
to attain absolute precision in the framing of laws, particularly in
fields in which the situation changes according to the prevailing views
of society (see Eur. Court HR, Müller v. Switzerland judgment of 24 May
1988, Series A no. 133, para. 29).
Referring to Article 13 (Art. 13) of the Convention, the
Government submit that the civil law of assault, supplemented by the
criminal law, gives an adequate remedy in connection with the
complaints under Articles 3 and 8 (Art. 3, 8) of the Convention. They
rely on the Costello-Roberts judgment (para. 40).
The applicants' representatives contest the Government's
contentions.
As to State responsibility for the matters complained of, the
applicants' representatives point to Article 1 (Art. 1) of the
Convention and to the Commission's Report in the case of Costello-
Roberts, where the Commission found, by reference to its admissibility
decision in the case, that "Contracting States do have an obligation
under Article 1 (Art. 1) of the Convention to secure that children
within their jurisdiction are not subjected to torture, inhuman or
degrading treatment, contrary to Article 3 (Art. 3) of the Convention.
... the United Kingdom's liability also extends to Article 8 (Art. 8)
of the Convention ... to the extent that corporal punishment in ...
schools may involve an unjustified interference with children's
physical and emotional integrity".
Under Article 3 (Art. 3) of the Convention, the applicants'
representatives underline that the physical treatment in the present
case was considerably more serious than in the Costello-Roberts case,
which was itself regarded as a borderline case by the European Court
of Human Rights. They see no reason to expect lower standards of
protection for children in the home that at school, and consider that
there is nothing inherently less inhuman or degrading when a child is
corporally punished in the home than in an "institutionalised" setting.
For example, no-one would expect a woman to have less legal protection
from assault in the home than, say, in the workplace. The applicants'
representatives refer to recent research which has brought about an
increased awareness of the dangers to children of physical abuse in the
home. They also submit a report from the first applicant's special
needs co-ordinator which shows that since the first applicant has been
with his father, the second applicant, and has no longer been subjected
to the discipline of his stepfather, his appearance and behaviour have
improved greatly.
Under Article 8 (Art. 8) in connection with the first applicant,
the applicants' representatives emphasise that the Court in Costello-
Roberts left open the question whether disciplinary measures which did
not breach Article 3 (Art. 3) could also breach Article 8 (Art. 8), and
continue that the Court has accepted that Article 8 (Art. 8) carries
positive obligations in connection with physical integrity in its X &
Y v. the Netherlands judgment (Eur. Court HR, judgment of 26 March
1985, Series A no. 91). As to the question whether the domestic law
is sufficiently clearly formulated to comply with the requirements of
Article 8 (Art. 8), they consider that arguments about avoiding
excessive rigidity cannot be applied when discussing violent and
humiliating punishment.
In connection with Article 13 (Art. 13) of the Convention, the
applicants' representatives accept that the effectiveness of a remedy
does not depend on a successful outcome, but they consider that the
decision of the criminal court in this case - and similar decisions in
many other cases, civil and criminal - makes quite clear that neither
civil nor criminal law offers any effective remedy in respect of the
problems raised in the present case.
As under Article 13 (Art. 13), the applicants' representatives
consider that there were no effective remedies at their disposal for
the purposes of Article 26 (Art. 26) of the Convention: they add that
there is no difference between the substantive test in domestic law,
and there was no point in pursuing civil proceedings. Moreover, once
the criminal proceedings had failed, they would not have been able to
obtain legal aid for civil proceedings.
The Commission recalls that, according to the generally
recognised ruled of international law, a person is not obliged to
pursue ineffective remedies, offering no prospect of success (cf. the
Commission's decision on admissibility in the Costello-Roberts case,
No. 13134/87, Dec. 13.12.90, in which neither civil nor criminal
remedies were pursued, and the further case-law referred to there).
In the present case, the question whether the chastisement of the first
applicant was "reasonable" in domestic law was fully rehearsed before
the domestic courts in the criminal proceedings against the first
applicant's stepfather. The jury's acquittal of the stepfather
amounted to a finding that the prosecution had not established that the
chastisement was unreasonable as a matter of domestic law. The
Commission has not been referred to any cases which indicate that the
civil courts interpret "reasonable chastisement" differently from the
criminal courts.
The Commission notes the difference in the burden of proof in the
two jurisdictions, but does not accept that the difference is
sufficient to require the first applicant to be involved in a further
set of proceedings in which the outcome is likely to be the same as in
the criminal proceedings, and in which he would not be able to raise
any fresh arguments.
The Commission therefore finds that the first applicant has
complied with Article 26 (Art. 26) of the Convention.
The Commission considers, in the light of the parties'
submissions, that this part of the case raises complex issues of law
and fact under the Convention, the determination of which should depend
on an examination of the merits. The Commission concludes, therefore,
that this part of the application is not manifestly ill-founded, within
the meaning of Article 27 para. 2 (Art. 27-2) of the Convention. No
other grounds for declaring it inadmissible have been established.
2. The second applicant, too, alleges violations of Articles 3, 8,
13 and 14 (Art. 3, 8, 13, 14) of the Convention in connection with the
caning of the first applicant by his stepfather.
The Commission notes, and the second applicant accepts, that
there is no question in the present case of any interference with the
second applicant's physical integrity. The second applicant makes no
allegations as to interference with his own right to respect for family
life.
The Commission next recalls that in its above-mentioned decision
on the admissibility of the Costello-Roberts case, it found, in a
slightly different context, that the child's mother was precluded under
Article 25 (Art. 25) of the Convention from bringing an application in
her own right.
The second applicant has no independent complaints of his own in
the present case; he does not claim to be an "indirect victim" of any
alleged violations.
This part of the Convention must therefore be rejected as being
incompatible ratione personae with the provisions of the Convention,
pursuant to Article 27 para. 2 (Art. 27-2) of the Convention.
For these reasons, the Commission, by a majority,
DECLARES ADMISSIBLE, without prejudging the merits, the first
applicant's complaints;
DECLARES INADMISSIBLE the second applicant's complaints.
H.C. KRÜGER S. TRECHSEL
Secretary President
to the Commission of the Commission
Full & Egal Universal Law Academy