Final Resolution CM/ResDH(2009)75[1]
Execution of the judgment of the European Court of Human Rights
A against United Kingdom
(Application No. 25599/94, judgment of 23.09.1998, Interim Resolution ResDH(2004)39)
The Committee of Ministers, under the terms of Article 46, paragraph 2, of the Convention for the Protection of Human Rights and Fundamental Freedoms, which provides that the Committee supervises the execution of final judgments of the European Court of Human Rights (hereinafter “the Convention” and “the Court”);
Having regard to the judgment transmitted by the Court to the Committee once it had become final;
Recalling that the violation of the Convention found by the Court in this case concerns the inadequate protection of a child against treatment or punishment contrary to Article 3 (violation of article 3) (see details in Appendix);
Having invited the government of the respondent state to inform the Committee of the measures taken to comply with its obligation under Article 46, paragraph 1, of the Convention to abide by the judgment;
Having examined the information provided by the government in accordance with the Committee's Rules for the application of Article 46, paragraph 2, of the Convention;
Having satisfied itself that the respondent state paid the applicant the just satisfaction provided in the judgment (see details in Appendix),
Recalling that a finding of violations by the Court requires, over and above the payment of just satisfaction awarded by the Court in its judgments, the adoption by the respondent state, where appropriate:
- of individual measures to put an end to the violations and erase their consequences so as to achieve as far as possible restitutio in integrum; and
- of general measures, preventing similar violations;
DECLARES, having examined the measures taken by the respondent state (see Appendix), that it has exercised its functions under Article 46, paragraph 2, of the Convention in this case and
DECIDES to close the examination of this case.
Appendix to Final Resolution CM/ResDH(2009)75
Information about the measures to comply with the judgment in the case of
A against United Kingdom
Introductory case summary
The case concerns the failure of the state to protect the applicant, at the time a nine year old child, from ill‑treatment by his step-father, who was acquitted of criminal charges brought against him after he raised the defence of reasonable chastisement (violation of Article 3). The European Court considered that the law in force did not provide adequate protection to the applicant against punishment or treatment contrary to Article 3, and that children and other vulnerable individuals are entitled to state protection, in the form of effective deterrence against such serious breaches of personal integrity. Applying its standard test under Article 3 to the facts of the case, it found that “treatment of this kind reaches the level of severity prohibited by Article 3”. The European Court did not consider the question of whether all physical punishment of children is contrary to Article 3.
I.Payment of just satisfaction and individual measures
a) Details of just satisfaction
Pecuniary damage
Non-pecuniary damage
Costs and expenses
Total
-
GBP 10,000
GBP 20,000
GBP 30,000
Paid on 26/10/1998
b) Individual measures
The European Court awarded the applicant just satisfaction in respect of non-pecuniary damage. No further measures are required as the applicant reached the age of majority in 2002.
II.General measures
1) Legislative change: the United Kingdom chose to implement the judgment by amending the relevant legislation in all its jurisdictions.
a) England and Wales: Through section 58 of the Children Act 2004, the defence of “reasonable chastisement” has been removed and replaced with one of “reasonable punishment”. This defence has been limited to cases charged as “common assault”, i.e. cases where the injury suffered is transient or trifling. The defence may no longer be invoked in cases where the physical punishment amounts to assault occasioning actual bodily harm to children, cruelty or more serious assault offences.
Where there is an aggravating factor, the charge should not be “common assault” but “actual bodily harm”. An assault on a child by an adult is a serious aggravating factor. Therefore, where an adult assaults a child in such a way as to amount to a breach of Article 3, the reasonable punishment defence is not available.
The United Kingdom authorities indicated that on 22.04.09, in circumstances comparable to this case, a father was convicted at Cardiff Crown Court of child cruelty and later sentenced. The defence of reasonable punishment was not available to him.
b) Northern Ireland: Legislative provisions mirroring those of England and Wales were introduced in Northern Ireland by the Law Reform (Miscellaneous Provisions) (Northern Ireland) Order 2006, which came into force in September 2006.
Proceedings were brought by the Northern Ireland Commissioner for Children and Young People challenging the compatibility of the new legislative provisions with the Convention. On 20.12.07 the High Court in Northern Ireland ruled that the Commissioner was not a “victim”. The High Court did however, go on to consider the substantive points raised by the Commissioner and rejected all of those points. The Commissioner appealed to the Northern Ireland Court of Appeal. In its judgment of 20.02.2009, the Court of Appeal dismissed the claim on the ground that the Commissioner was not a “victim” and therefore had no standing to bring the proceedings. The Court of Appeal did not consider any of the substantive arguments put forward by the Commissioner. In a press release dated 21.04.09, the Commissioner stated that she will not pursue further legal action.
c) Scotland: The Criminal Justice (Scotland) Act 2003, Section 51 provides for a defence to a charge of assault against a child where certain conditions are satisfied (referred to as “justifiable assault”).
Section 51§1 and 51§2 list the factors which the court must take into consideration when determining whether the punishment can be considered a “justifiable assault”, namely: the nature of what was done, the reason for it and the circumstances in which it took place; its duration and frequency; any effect (whether physical or mental) which it has been shown to have had on the child; the child's age; the child's personal characteristics (including sex and state of health) at the time; and such other factors as it considers appropriate in the circumstances of the case. Those criteria - for example the nature of what was done, the circumstances in which it took place, any effect (whether physical or mental) - reflect the criteria that the European Court has set out in its case-law to assess whether ill-treatment falls within the scope of Article 3.
The law is different from that in England, Wales and Northern Ireland due to the fact that Scotland has its own legal system. However, the provision in Scots law reflects the same approach and has the same structure as that in the other parts of the United Kingdom. It has a similar effect in practice.
A detailed presentation of the legislative changes adopted in response to the judgment as well as other information provided by the United Kingdom authorities and a summary of various communications submitted to the Committee of Ministers by NGOs and the national commissioners for children's rights may be found in Information Document CM/Inf/DH(2008)34.
2) Awareness raising measures: The United Kingdom has also taken significant awareness raising measures to clarify the law for non-lawyers, parents and childcare professionals, given the vulnerable status of those potentially affected by the legislation. These measures are summarised in Information Document CM/Inf/DH(2008)34 (§20-21, §48, §56-57). Additional resources have also been allocated in the United Kingdom for parenting support, as set out in the memorandum (§70); awareness-raising and funding will continue at the national level.
The UK authorities have pointed out that should the European Court take a different view of the minimum level of gravity to be taken into account with regard to treatment of children in future, the United Kingdom domestic courts will be obliged to take this into account under the Human Rights Act 1998.
III.Conclusions of the respondent state
The government considers that the measures adopted will prevent similar violations and that the United Kingdom has thus complied with its obligations under Article 46, paragraph 1 of the Convention.
[1] Adopted by the Committee of Ministers on 16 September at the 1065th meeting of the Ministers’ Deputies
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