AS TO THE ADMISSIBILITY OF
Application No. 13134/87
by Wendy and Jeremy COSTELLO-ROBERTS
against the United Kingdom
The European Commission of Human Rights sitting in private on
13 December 1990, the following members being present:
MM. C.A. NØRGAARD, President
J.A. FROWEIN
E. BUSUTTIL
G. JÖRUNDSSON
A. WEITZEL
H.G. SCHERMERS
H. DANELIUS
Mrs. G.H. THUNE
Sir Basil HALL
Mr. C.L. ROZAKIS
Mrs. J. LIDDY
MM. L. LOUCAIDES
J.C. GEUS
A.V. ALMEIDA RIBEIRO
M.P. PELLONPÄÄ
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 17 January 1986
by Wendy and Jeremy COSTELLO-ROBERTS against the United Kingdom and
registered on 11 August 1987 under file No. 13134/87;
Having regard to:
- reports provided for in Rule 47 of the Rules of Procedure of
the Commission;
- the Commission's decision of 5 May 1989 to bring the
application to the notice of the respondent Government
and invite them to submit written observations on its
admissibility and merits;
- the observations submitted by the respondent Government
on 27 September 1988 and the observations in reply
submitted by the applicant on 3 January 1989;
- the Commission's decision of 9 May 1989 to adjourn
examination of the application pending developments in
a similar application (No. 14229/88 X and Y v. the
United Kingdom);
- the Commission's decision of 6 October 1990 to hold a
hearing in the case;
- the hearing held on 13 December 1990;
Having deliberated;
Decides as follows:
THE FACTS
The applicants, United Kingdom citizens, are a mother and son
living in Newquay, Cornwall. They are represented before the
Commission by Messrs. Binks Stern and Partners, Solicitors, London.
The facts of the case, as submitted by the parties, may be summarised
as follows:
A. The particular facts of the case
The second applicant was born on 11 December 1977. At the
relevant time, he attended, as a boarder, an independent school in
Barnstaple. The applicants made no inquiry about the school's
disciplinary regime. They claim not to have been aware at that stage
that corporal punishment was widespread in private schools. The
mother did not make known her opposition to corporal punishment at the
outset and the school did not of its own initiative inform her of its
disciplinary policy. It was the school's practice to inform parents
who enquired about discipline that on rare occasions corporal
punishment could be used as a punishment of last resort. When
applying for entry to the school, parents were required to complete a
form which indicated, inter alia, that "Parents and others 'in loco
parentis' are required to abide by the rules and regulations in force
at the school". Furthermore, the school prospectus included in the
school's aims the following section:
"In a well ordered boarding community the need for discipline
and self discipline is apparent to the normal child. Thus a
high standard of discipline is maintained ..."
There was, however, no mention made of corporal punishment.
The headmaster considered the second applicant undisciplined
and lacking in self control, not helped by his home background. This
led to him being a disruptive influence for he refused to accept the
authority of senior children or members of staff.
On 3 October 1985 the second applicant was reprimanded by a
teacher for talking in the corridor. This earned him a demerit mark.
He had already acquired four such demerit marks for similar conduct
and for being a little late for bed on one occasion. The penalty for
collecting five demerit marks was corporal punishment. The headmaster
discussed the matter with his colleagues and it was decided that, as
other sanctions had proved ineffective, three "whacks" with a gym shoe
were the final and only possible answer to the boy's lack of
discipline. The second applicant was informed of this decision. He
alleges that he was told not to inform his parents about his
punishment, an allegation denied by the Government.
Three days later, the headmaster called the second applicant
into his study and hit him three times on his bottom, through his
shorts, with a rubber soled gym shoe. No other persons were present.
The staff noticed an almost immediate improvement in the boy's
behaviour, but considered that the subsequent contact that he had with
his parents during the half term holiday caused him to revert. The
headmaster was of the opinion that the second applicant "strung his
parents along", taking home stories about bullying and the like "which
he has clearly made up but which equally clearly his parents believe".
The school also considered that the second applicant had been
corporally punished in accordance with the disciplinary code and with
the prior consent given, on behalf of the second applicant, by the
first applicant, when applying to enter her son at the school.
The first applicant first heard of the punishment when the
second applicant wrote to her from school. She contacted the school
immediately and she alleges that on 14 October 1985 she was informed
by the headteacher that no such event had taken place. The Government
deny this allegation.
The second applicant continued to write in some distress to
the first applicant about the "slippering". On 4 November the school
confirmed that the second applicant had been slippered some four weeks
earlier.
The first applicant wrote to the headteacher and the governors
of the school stating that she did not wish her son to be corporally
punished again.
The first applicant made a complaint to the police some time
between 4 and 16 November 1985, but she was told that there was no
action they could take since there was no longer any visible bruising
on the child's bottom. She also made a complaint to the National
Society for the Prevention of Cruelty to Children, but received the
same response as that from the police.
On 16 November 1985 the headteacher wrote to the first
applicant stating that "in view of your obvious dissatisfaction with
the education being offered... to your son..., and your desire for him
to be exempt from the framework of discipline and punishment that is
acceptable to all other parents at the school, it seems best if (he)
is removed from (the school) at the end of the present term".
It is claimed by the applicants that the second applicant was
extremely disturbed as a result of his slippering, which turned him
from a confident, outgoing seven year old into a nervous and
unsociable child. The Government refute this claim. The school
reports at the time note no change in the second applicant's attitude
or otherwise. According to the Government's information any
modification in the child's behaviour (if any) was more likely caused
by his inability to adjust to the constraints of boarding school life.
The correspondence between the first applicant, the school governors
and the headmaster reflects the boy's adaptation difficulties. The
Government contend that there is no evidence to show that any change
in the second applicant's character during his time at the school was
caused by the punishment of which complaint is made.
The second applicant was moved to a new school in January
1986, which reported in July 1986 that the boy had "calmed down
considerably" since arriving there.
B. The relevant domestic law and practice
The lawful bounds of corporal punishment were as generally
described for all English schools prior to 15 August 1987 in
Halsbury's Laws of England (Fourth Edition Volume 15) as follows:
"66. Position of school-teachers. The authority of a
school-teacher is, while it exists, the same as that of
parent. When a parent sends his child to a school he
delegates to the head teacher his own authority so far as
is necessary for the child's welfare and so far as is
necessary to maintain discipline with regard to the child
in the child's interests and those of the school as a whole.
The head teacher's right to punish a child extends to a
responsible assistant teacher.
67. Corporal punishment. As delegate of the parental
authority, a head teacher and a responsible assistant teacher
have the right to inflict moderate and reasonable corporal
punishment, using a proper instrument. If, however, the
punishment administered does not satisfy these criteria the
teacher is liable in criminal proceedings and he or his
employers are liable to a civil action for damages."
The criminal law of assault sanctions corporal punishment
which is not reasonable, moderate or administered with a proper
instrument in a decent manner. The least serious offence is common
assault pursuant to section 42 of the Offences against the Persons Act
1861. Prosecutions are usually left to the aggrieved party. The
maximum penalty for common assault is a £400 fine or two months'
imprisonment. The 1861 Act provides for more serious offences of
assault occasioning actual or grievous bodily harm. The maximum
penalty for causing actual bodily harm is five years' imprisonment.
Physical assault is actionable in civil law as a form of
trespass to the person for which damages may be recovered. Parents
are however entitled to use reasonable physical punishment on their
children and at the material time in the present case teachers were
deemed to be "in loco parentis" and thereby had a defence to civil
claims involving the moderate corporal punishment of children. Since
the coming into force of sections 47 and 48 of the Education (No. 2)
Act 1986 on 15 August 1987 this defence no longer avails teachers in
State schools. The present case, however, involves an independant
school, whose teachers may still administer reasonable corporal
punishment to pupils. The concept of reasonableness permits the
courts to apply prevailing contemporary standards.
An independent (or private) school is one at which full-time
education is provided for 5 or more pupils of compulsory school age,
not being a special school (i.e. one specifically organised to provide
education for pupils with learning difficulties) or a school
maintained by a public authority (section 114 (1) Education Act 1944).
Independent schools must apply for registration to the
Registrar of Independent Schools, an officer of the Department of
Education and Science. Registration is subject to the provision of
suitable safety, health and educational standards, but, the Government
contend, generally the State has no power to permit or prevent the
operation of independent schools. Such schools are not subject to
such strict maintenance standards as State subsidised schools; nor
need they employ qualified teachers, follow the State teachers' salary
scales or prepare pupils for particular examinations. They are free
to use corporal punishment within the bounds of the civil and criminal
law, except, since 1986, on pupils whose place is paid for by the
State under the Assisted Places Scheme. Excessive corporal punishment
(involving successful criminal prosecutions) may provoke the Secretary
of State to use his powers under section 71 (1) of the Education Act
1944 to initiate a complaints procedure which may result in an
independent school being struck off the register, whereupon it becomes
a criminal offence to continue running the school. No such issue has
arisen in the past ten years.
The State provides little direct funding to independent
schools, except for three out of 2,341 schools, and the payment of
certain pupils' school fees in full or in part in some 226 independent
schools. A total of 33,336 places are thus offered out of a total of
533,977 full time pupils in independent schools (January 1988
statistics). However such schools enjoy charitable status and are
thereby relieved from the payment of certain rates and taxes. Many
independent schools could not operate without such tax relief. The
school in question, whilst having charitable status, receives no
direct financial support from the Government and has no pupils whose
fees are paid out of public funds.
Parents have a duty under the Education Act 1944 to educate
their children, a duty reinforced by criminal sanctions. They have
the choice whether to provide suitable education at home or in private
or State schools. The Secretary of State has a duty under the same
Act to ensure certain educational standards.
COMPLAINTS
The applicants allege that the second applicant suffered a
violation of Article 3 of the Convention in respect of his corporal
punishment at the Barnstaple school. They complain that this
chastisement also violated their right to respect for private and
family life, ensured by Article 8 of the Convention, and that they had
no effective domestic remedies for these Convention claims, contrary
to Article 13.
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 17 January 1986 and
registered on 11 August 1987. After a preliminary examination of the
case by the Rapporteur, the Commission considered the admissibility of
the application on 5 May 1988. It decided to give notice of the
application to the respondent Government and to invite the parties to
submit their written observations on admissibility and merits,
pursuant to Rule 42 para. 2 (b) of its Rules of Procedure (former
version). The Government lodged their observations on 27 September
1988, to which the applicants replied on 3 January 1989.
On 9 May 1989 the Commission decided to adjourn examination of
the application pending developments in a similar application,
No. 14229/88 X and Y v. the United Kingdom. On 6 October 1990 the
Commission decided to invite the parties to an oral hearing on
admissibility and merits on the same day as a hearing in the other
case.
The hearing was held on 13 December 1990. The Government were
represented by Mrs. A. Glover, Agent, Foreign and Commonwealth Office,
Mr. N. Bratza, QC, Counsel, and MM. A.D. Preston, L.B. Webb and A.W.
Wilshaw, advisers from the Department of Education. The applicants
were represented by Mr. M.D. Gardner, Solicitor, Messrs. Binks Stern
and Partners, Ms. J. Beale, Counsel, and Mr. M. Rosenbaum, adviser.
The applicants also attended the hearing.
At the hearing an original complaint under Article 14 of the
Convention was withdrawn by the applicants' representatives.
THE LAW
1. The applicants complain that the corporal punishment of the
second applicant when he was a pupil at an independent school
constituted a violation of his rights under Article 3 (Art. 3) of the
Convention and a violation of both applicants' rights under Articles 8
(Art. 8) and 13 (Art. 13) of the Convention.
2. The first preliminary question which the Commission must
examine is whether the United Kingdom's liability under the Convention
is incurred in the present case.
The applicants contend that the United Kingdom is responsible
for acts which violate the Convention when they occur not only in
State schools but also in independent schools. Independent schooling
is regulated by statute and the State ultimately has the power to
permit or prevent the operation of an independent school through the
registration process. Moreover, there is a broad spectrum of legal,
practical and moral responsibility for independent schooling which
cannot exclude the use of corporal punishment where it allegedly
violates the Convention.
The Government refute the applicants' contentions. Whilst the
State does exercise a limited degree of supervision and control over
independent schools (as they do over many private bodies) it does not
have responsibility for every aspect of the conduct of such schools.
The disciplinary regime adopted at an independent school, including
whether corporal punishment is to be used and, if so, to what extent,
are entirely matters for the school. Some such schools may lay
particular emphasis on standards of conduct and discipline, and
certain parents may look for these elements when choosing private
education for their children, as they are entitled to do under Article
2 of Protocol No. 1 (P1-2) to the Convention.
The Commission considers 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 or punishment, contrary to Article 3
(Art. 3) of the Convention. This duty is recognised in English law
which provides certain criminal and civil law safeguards against
assault or unreasonable punishment. Moreover, children subjected to,
or at risk of being subjected to ill-treatment by their parents,
including excessive corporal punishment, may be removed from their
parents' custody and placed in local authority care. The Commission
also notes that the State obliges parents to educate their children,
or have them educated in schools, and that the State has the function
of supervising educational standards and the suitability of teaching
staff even in independent schools. Furthermore, the effect of
compulsory education is that parents are normally obliged to put their
children in charge of teachers. If parents choose a private school,
the teachers assume the parental role in matters of discipline under
the national law while the children are in their care, by virtue of
the "in loco parentis" doctrine. In these circumstances the
Commission considers that the United Kingdom has a duty under the
Convention to secure that all pupils, including pupils at private
schools, are not exposed to treatment contrary to Article 3 (Art. 3)
of the Convention. The Commission considers that the United
Kingdom's liability also extends to Article 8 (Art. 8) of the
Convention in order to protect the right to respect for private life
of pupils in private schools to the extent that corporal punishment
in such schools may involve an unjustified interference with
children's physical and emotional integrity.
3. The next preliminary question which the Commission must
examine is whether the first applicant may claim under Article 25
(Art. 25) of the Convention to be a victim of a violation of Articles
8 (Art. 8) and 13 (Art. 13) of the Convention. The Government contend
that neither of the applicants may claim to be a victim of a
violation of the Convention as the first applicant may be deemed to
have accepted that her son would be corporally punished, as she knew
or ought to have known of the school's disciplinary policy when
contracting to send him there and agreeing that he be subject to the
normal rules of the school. The first applicant's decision waived the
rights of both applicants in this matter.
The applicants contend that the first applicant was not aware
of how widespread corporal punishment was in independent schools at
the material time and she had no reason to believe that it was being
used at the Barnstaple school, no mention of it having been made in
the school's prospectus. Even if the first applicant were precluded
from claiming to be a victim of a violation of Articles 8 (Art. 8)
and 13 (Art. 13) of the Convention, it is submitted that her consent
did not waive the second applicant's rights.
The Commission notes that it was common knowledge in the
United Kingdom that at the material time there was widespread use of
corporal punishment in private schools in England, and even in State
schools where it had not yet been abolished. It seems that the second
applicant was a particularly sensitive child who would face
difficulties in being sent away from home for his education at such a
young age. In these circumstances the first applicant could have been
expected to make careful inquiries about all aspects of his possible
treatment at the boarding school in question. The fact that she
apparently did not do so precludes her from claiming under Article 25
(Art. 25) of the Convention to be a victim, either directly or
indirectly, of a violation of her Convention rights as a result of
the ensuing events at the school. The first applicant's part of the
case 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.
However, the second applicant is not precluded by his mother's
decision from claiming to be a victim of a violation of the
Convention, Article 1 (Art. 1) of the Convention extending the Convention's
protection to everyone within the jurisdiction of the High Contracting
Parties. She cannot be said to have waived his rights for him under
Articles 3 (Art. 3) and 8 (Art. 8) of the Convention and, in view of
his young age, there can be no question of his having consented to
the school's disciplinary regime or the actual punishment.
4. A further preliminary question, raised by the respondent
Government, concerns the applicants' compliance with the domestic
remedies rule laid down in Article 26 (Art. 26) of the Convention.
The Government contend that the applicants failed to exhaust domestic
remedies because they made no attempt to institute a private criminal
prosecution or civil proceedings against the headmaster who inflicted
the punishment on the second applicant. The applicants state that
there would have been no point in pursuing such proceedings as they
held no prospect of success. The punishment would undoubtedly have
been held to have been moderate and reasonable under English law.
The Commission agrees with the applicants' submission and
refers to its constant case-law that, according to the generally
recognised rules of international law, a person is not obliged to
pursue ineffective remedies, offering no prospect of success (cf. Nos
9214/80, 9473/81 and 9474/81, Abdulaziz, Cabales and Balkandali v. the
United Kingdom, Dec. 11.5.82, D.R. 29 p. 176). The Commission
therefore finds that the applicants have complied with Article 26
(Art. 26) of the Convention.
5. On the substantive issues, the second applicant has complained
that he suffered degrading treatment contrary to Article 3 (Art. 3) of
the Convention when he was hit three times with a gym shoe by the
headmaster of his private school. He alleges that the "slippering"
had a serious, lasting emotional impact on him with negative
repercussions for his private and family life. This latter element
constituted an unjustified interference with his rights under Article
8 (Art. 8) of the Convention. Finally, the applicant complains that
he had no effective domestic remedy for his Convention claims,
contrary to Article 13 (Art. 13) of the Convention.
The Government contend that the chastisement of the second
applicant was moderate and reasonable, and fell far short of the
severe ill-treatment proscribed by Article 3 (Art. 3) of the
Convention. Any emotional strain upon the second applicant around
that time could have been caused by his inability to adjust to the
rigors of boarding school life rather than the punishment itself.
Moreover, there is no evidence that the punishment hindered or
affected the fulfilment of the applicant's private or family life,
contrary to Article 8 (Art. 8) of the Convention. Finally, the Government
submit that the second applicant has no arguable claim of a breach
of the Convention, or, if he has, he anyway had adequate domestic
remedies under the civil and criminal law for the purposes of Article
13 (Art. 13) of the Convention.
The Commission considers, in the light of the parties'
submissions, that this aspect of the case raises complex issues of law
and fact under the Convention, the determination of which should
depend on an examination of its 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.
For these reasons, the Commission, by a majority,
DECLARES INADMISSIBLE the first applicant's complaints;
DECLARES ADMISSIBLE the second applicant's complaints,
without prejudging the merits.
Secretary to the Commission President of the Commission
(H.C. KRÜGER) (C.A. NØRGAARD)
Full & Egal Universal Law Academy