Application No. 9114/80
Kamharaj DURAIRAJ, Margaret BAKER (formerly DURAIRAJ)
and Anthony DURAIRAJ
against
the United Kingdom
REPORT OF THE COMMISSION
adopted on 16 July 1987
TABLE OF CONTENTS
Page
INTRODUCTION ........................................ 1
Part I: STATEMENT OF THE FACTS ..................... 3
Part II: SOLUTION REACHED .......................... 4
INTRODUCTION
1. This Report relates to Application No. 9114/80 introduced by
Kamharaj Durairaj, Margaret Baker (formerly Durairaj) and Anthony
Durairaj against the United Kingdom on 2 July 1980 under Article 25 of
the Convention for the protection of Human Rights and Fundamental
Freedoms. The application was registered on 11 September 1980.
The applicants were represented first by Messrs. David Carr
and Roe, solicitors, Birkenhead, succeeded by Messrs. Christopher
Thomas & Co., solicitors, Birkenhead.
The Government were represented by their Agents, first Mrs.
A. Glover, succeeded by Mr. M.R. Eaton, and Mr. M. Wood and Mr. J.A.
Grainger, all of the Foreign and Commonwealth Office.
2. On 11 October 1984, the European Commission of Human Rights
declared admissible the third applicant's complaints concerning his
right to education and the first and second applicants' complaints
concerning their parental rights to have the third applicant educated
in conformity with their own philosophical convictions. The
Commission then proceeded to carry out its task under Article 28 of
the Convention which provides as follows:
"In the event of the Commission accepting a petition referred
to it:
a. it shall, with a view to ascertaining the facts undertake
together with the representatives of the parties an
examination of the petition and, if need be, an
investigation, for the effective conduct of which the
States concerned shall furnish all necessary facilities,
after an exchange of views with the Commission;
b. it shall place itself at the disposal of the parties
concerned with a view to securing a friendly settlement
of the matter on the basis of respect for Human Rights as
defined in this Convention."
3. The Commission found that the parties had reached a friendly
settlement of the case and on 16 July 1987 it adopted this Report
which, in accordance with Article 30 of the Convention, is confined to
a brief statement of the facts and of a solution reached.
The following members of the Commission were present when the
Report was adopted:
MM. C.A. NØRGAARD, President
J.A. FROWEIN
S. TRECHSEL
F. ERMACORA
E. BUSUTTIL
A.S. GÖZÜBÜYÜK
A. WEITZEL
J.C. SOYER
H.G. SCHERMERS
H. DANELIUS
G. BATLINER
H. VANDENBERGHE
Mrs G.H. THUNE
Sir Basil HALL
M. F. MARTINEZ
I. STATEMENT OF THE FACTS
4. The applicants are United Kingdom citizens, residing at
Birkenhead, Merseyside in England. The first and second applicants
are the parents of the third applicant who was born on 27 June 1964.
5. The application concerns the refusal by the first and second
applicants to allow corporal punishment of their son at school and
their son's subsequent suspension from school in 1979. In April 1980
proceedings were brought against the first and second applicants under
Section 39 of the Education Act 1944 for failing to send the third
applicant to school. On 9 June 1980 the first and second applicants
were convicted by the Magistrates Court under Section 39 of the
Education Act 1944. The first applicant was fined £50 and ordered to
pay £25 costs and £150 legal aid contribution. The second applicant
was fined £50 and ordered to pay £25 costs.
6. The third applicant did not return to school and did not take
any school leaving examinations.
7. Before the Commission, the applicants complained in particular
that the third applicant's suspension from school was contrary to his
right to education ensured by Article 2, first sentence, of Protocol
No. 1 to the Convention. The first and second applicants complained,
under Article 2 second sentence that the proposed punishment of their
son and the use of corporal punishment in the school were contrary to
their right to have their son educated in conformity with their own
philosophical convictions.
8. The application was introduced on 2 July 1980 by the
applicants and registered on 11 September 1980. On 11 December 1980
the Commission decided to bring the application to the attention of
the respondent Government without asking them to submit written
observations pending the decision of the European Court of Human
Rights in the Campbell and Cosans case. Following the Court's
judgment in the case of Campbell and Cosans (Eur. Court H.R., Campbell
and Cosans judgment of 25 February 1982, Series A No. 48) the
applicants on 30 June 1982 made further submissions in the light of
that judgment.
9. The Commission decided on 14 October 1982 that the Government
should be invited to submit their observations on the admissibility
and merits of the application. The Government's observations were
submitted on 23 March 1983. The applicants submitted further
observations in reply on 12 July 1983 together with further
communications on 8 November 1983, 19 December 1983 and 3 May 1984.
The Commission decided on 16 December 1983 that the applicants be
granted free legal aid.
10. The Commission declared the application admissible on
11 October 1984.
II. SOLUTION REACHED
11. Following its decision on the admissibility of the
application, the Commission placed itself at the disposal of the
parties with a view to securing a friendly settlement in accordance
with Article 28 (b) of the Convention and invited the parties to
submit any proposals they wished to make.
12. In accordance with its usual practice the Commission
instructed its Secretary to contact the parties for this purpose.
Following a meeting and an exchange of correspondence channelled
through the good offices of the Commission, the Agent of the
Government, by letter of 9 July 1987, made the following declaration:
"I have the honour to refer to the discussions which have
taken place concerning a friendly settlement of the above
application.
The Government of the United Kingdom would recall the
provisions of the Education (No. 2) Act 1986, which received
the Royal Assent on 7 November 1986. The relevant provisions
of the Act are Section 47 (abolition of corporal punishment)
and Section 48 (abolition of corporal punishment: Scotland).
These provisions come into force on 15 August 1987. Similar
arrangements will apply in Northern Ireland: the Education
(Corporal Punishment) (Northern Ireland) Order 1987 (S.I.
1987/461).
The Government are prepared to make the following ex
gratia payments with a view to achieving a friendly
settlement of the above application:
- £4000 to the third applicant,
- £750 (in total) to the third applicant's parents
(the first and second applicants).
In addition, the Government are prepared to pay the
applicants' reasonable costs in the domestic and Strasbourg
proceedings."
13. The contents of this declaration was transmitted to the
applicants' representatives, who by telex of 15 July 1987 confirmed
that the applicants accepted this offer and considered the matter to
be settled.
14. On 16 July 1987 the Commission noted that the parties had
reached agreement regarding the terms of settlement. The Commission
also noted the provisions of the Education (No. 2) Act 1986, which
received the Royal Assent on 7 November 1986 concerning corporal
punishment in schools. The Commission found, having regard to Article
28 (b) of the Convention, that a friendly settlement of the present
application had been secured on the basis of respect for Human Rights
as defined in the Convention.
For these reasons, the Commission adopted this Report.
Secretary to the Commission President of the Commission
(H.C. KRÜGER) (C.A. NØRGAARD)