AS TO THE ADMISSIBILITY OF
Application No. 13477/87
by Margaret and Peter WHITMAN
against the United Kingdom
The European Commission of Human Rights sitting in private on
4 October 1989, the following members being present:
MM. C.A. NØRGAARD, President
J.A. FROWEIN
G. SPERDUTI
E. BUSUTTIL
G. JÖRUNDSSON
A.S. GÖZÜBÜYÜK
A. WEITZEL
J.C. SOYER
H.G. SCHERMERS
H. DANELIUS
G. BATLINER
H. VANDENBERGHE
Mrs. G.H. THUNE
Sir Basil HALL
MM. F. MARTINEZ
C.L. ROZAKIS
Mr. L. LOUCAIDES
Mr. J. RAYMOND, Deputy 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 20 October 1987
by Margaret and Peter WHITMAN against the United Kingdom and
registered on 4 December 1987 under file No. 13477/87;
Having regard to:
- reports provided for in Rule 40 of the Rules of Procedure
of the Commission;
- the Commission's decision of 7 October 1988 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 18 January 1989 and the observations in reply submitted
by the applicants on 12 April 1989;
Having deliberated;
Decides as follows:
THE FACTS
The first applicant is a citizen of the United Kingdom, born
in 1941 and resident in Luton, Bedfordshire. She is a housewife. The
second applicant is her son, also a United Kingdom citizen, born in
1971. At the time of lodging the application, he was a student.
The facts, as submitted by the parties, may be summarised as
follows:
On 13 March 1987 the second applicant was sent home from his
school because of breaches of school discipline, involving his
clothes, a "walkman" radio and rudeness, in full view of over 100
pupils.
The parents were contacted, asked to keep him at home and to
make an appointment with the Headmaster and Deputy Headmaster. The
first applicant contacted the Deputy Headmaster and requested that her
son be allowed to attend school until the appointment could be
arranged. She explained that the second applicant had been unwell,
which might have explained his rudeness. The Deputy Headmaster
replied that this would not be possible because the son's defiance and
rudeness had been so serious, but that he could accompany his parents
to the proposed meeting arranged for 23 March 1987. The Government
state that on 20 March 1987 the first applicant had to be escorted
from the school grounds together with three strangers, who had all
obviously been drinking alcohol. (This assertion is queried by the
first applicant.) The time off school was considered to be a "cooling
off" period by the school; it was not a formal suspension. The
Headmaster and his Deputy thought that the misbehaviour of the second
applicant warranted corporal punishment or suspension from school.
The policy of the local education authority had been to cease
corporal punishment in its schools as of July 1985. However, school
governors remained responsible for their school's general conduct and
head teachers controlled schools' internal organisation, management
and discipline, with the power of suspending pupils from attendance.
The Governors of the second applicant's school resolved in November
1985 "to retain the use of corporal punishment as an option ... on the
basis of full consultation with and consent of parents/guardians in
each instance".
At the meeting with the Deputy Headmaster on 23 March 1987 the
first applicant explained her opposition to corporal punishment. The
Deputy Headmaster then explained that a formal suspension was
therefore necessary to be followed by undertakings from the parents
and the boy as to his future conduct. This was confirmed in the
following letter, dated 23 March 1987, from the Deputy Headmaster to
the parents:
"Further to your visit to school today I have spoken at
some length to ... the Headmaster. In view of the fact
that you are reluctant for Peter to be punished it is
felt that for him to realise the seriousness of his
position, the sending home should be made a suspension.
I enclose the suspension letter written by (the Headmaster).
As you will see from that letter we are going to consider
readmitting Peter, but this will involve detentions and
a contract, the details to be finalised with you at the
meeting on 31 March. I should point out that should
Peter repeat such behaviour, it would automatically result
in a final suspension.
Can I also ask that you ensure that in the meantime Peter
does not come on to school site as he did last Friday.
If you require further information please telephone me at
school, but not on Wednesday as I have a full teaching
commitment."
The accompanying formal letter of suspension from the
Headmaster to the parents read as follows:
"There have been a series of serious incidents on school
site whereby, in full view of many other pupils, Peter
has repeatedly defied ... his Head of Year and ... (the)
Deputy Head. This action has left me no option but to
suspend Peter. The Chairman of the School Governors and
the Area Education Officer have been informed. Will you
please attend school on Tuesday 31 March at 9.30 am,
bringing Peter with you at that time, when we can discuss
his readmittance."
The second applicant and his father attended the meeting on
31 March 1987. The former showed himself to be very uncooperative and
abrupt. He did not express a wish to return to school. It was agreed
between the father and the Headmaster that the suspension would
continue, that the father would try to persuade the boy to change his
attitude and then contact the school when he was ready to return and
give an undertaking concerning his future behaviour.
The parents did not contact the school and they were visited
by a local authority education welfare officer on 1 May 1987, who
explained the seriousness of the son's continued absence, which could
result in the parents' prosecution for failing to ensure his
attendance unless the matter were resolved quickly. The parents asked
if home tuition could be arranged for the boy, but they were informed
that this could not be provided. A further meeting was arranged for
13 May 1987, but the son was not at home by the time the education
welfare officer arrived. The officer advised the first applicant to
make an appointment with the Headmaster or the Principal Education
Welfare Officer to resolve matters. A meeting with the latter was
arranged for 19 May 1987, when the first applicant was again advised
of the seriousness of the situation and the risk of prosecution. A
meeting was arranged by the officer between the parents and the
Headmaster on 2 June. Due to a distressing local incident the parents
were unable to attend. On 5 June 1987 the local education authority
commenced the criminal prosecution of the parents for the second
applicant's non-attendance at school. On 8 June 1987 the Headmaster
wrote to the parents asking them to keep their son off the school site
during his suspension. No mention was made in that letter of any end
to the suspension.
After three adjournments, the parents' trial was held on
10 September 1987. They had no legal representation, having been
refused legal aid because the Magistrates considered the interests of
justice did not require it. Suspension from school is not an
authorised leave of absence and, therefore, is not a defence for
failure to attend school. The education welfare officer informed the
court that the second applicant's punishment would involve detentions
(compulsory longer school hours to complete extra work), and that the
return to school was dependent upon the second applicant making up
missed work and accepting a "contract" of good behaviour. The parents
contended that their son was by then nearly beyond compulsory school
age and did not, therefore, have to attend. The second applicant was
approaching his 16th birthday (birth date 17 December 1971). However,
he was obliged to stay at school until the end of the spring term by
virtue of section 9 of the Education Act 1962, as amended by section 1
of the Education (School-Leaving Dates) Act 1976. The effect of this
legislation was to reduce to twice a year the number of dates at which
a pupil might leave school. If a child reaches 16 in the five months
September to January inclusive he must stay at school until the end of
the following spring term (Easter holidays). If he reaches that age
in February to August inclusive he must stay at school until the
Friday before the last Monday in May of the summer term. The object
of the legislation is to ensure that no child has less than three
years and two terms in a secondary school and that most children have
four years.
Before the Magistrates the parents also queried the second
applicant's school attendance record submitted by the local education
authority. The first applicant claims that the Magistrates refused to
take into account the questions of whether the second applicant was
still of compulsory school age, whether the case-law of the European
Commission and Court of Human Rights concerning corporal punishment
was relevant and whether the reform of the law on school corporal
punishment contained in the Education (No. 2) Act 1986, which came in
to force on 15 August 1987, was also relevant to the parents' defence.
The Government contend that corporal punishment was not in issue
before the Magistrates, there having been no question of such
punishment since the first applicant had opposed the idea in March
1987. The parents were convicted for failing to ensure their son's
attendance at school and were fined £30 plus £10 costs each, a total
of £80. They were also told to return the second applicant to the
school.
The family had a meeting with the Headmaster on 15 September
1987. The second applicant was given a further appointment on
29 September. The education welfare officer warned the family that if
the second applicant were not to return to school he would be taken
into the care of the local authority. The second applicant was given
further appointments with the Headmaster.
Care proceedings were instituted on 28 September 1987 by the
local authority, a juvenile court hearing being fixed for 19 October
1987. However, the second applicant returned to school on 13 October
1987, his suspension having been terminated after he had given an
undertaking of good behaviour. The care proceedings were consequently
adjourned to allow the second applicant time to prove that he could
sustain his attendance.
On 23 November 1987 the second applicant again defied members
of staff. He was interviewed by the Headmaster in the presence of his
father on 26 November and he refused to give another undertaking. The
Headmaster gave him some further time to consider his position. A
second interview took place on 30 November and the second applicant
again refused to give any undertaking. He was given a final
suspension. During the autumn term the second applicant had attended
school 30 out of 48 possible times and he was late for six of those
attendances.
The care proceedings were withdrawn on 20 January 1988 as the
second applicant was to attend an Intermediate Treatment Centre run
jointly by the local Education and Social Services Departments for
suspended pupils.
In accordance with the Education Act 1962, as amended by the
Education (School-Leaving Dates) Act 1976, the second applicant was
able to leave school on 30 March 1988.
COMPLAINTS
The applicants complain of breaches of Article 2 of Protocol
No. 1, Articles 4, 5, 6 para. 3 (b) and (c), 7, 8, 14, 17 and 18 of
the Convention and Article 1 of Protocol No. 4.
The applicants in effect protest about the suspension of the
second applicant from school, and a denial of his right to education,
because of the first applicant's insistance on her philosophical
convictions concerning corporal punishment, and an abuse of state
authority whereby pressure is brought to bear to waive the
individual's rights by the institution of criminal and care
proceedings. Further complaints are made concerning the refusal of
legal aid for these proceedings and for alleged discrimination in the
application of the compulsory school age requirements.
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 20 October 1987 and
registered on 4 December 1987.
After a preliminary examination of the case by the Rapporteur,
the Commission considered the admissibility of the application on
7 October 1988 and decided to give notice of the case to the
respondent Government, pursuant to Rule 42 para. 2 (b) of the Rules of
Procedure, and to invite the parties to submit written observations on
its admissibility and merits. The Government's observations were
submitted on 18 January 1989, to which the applicant replied on
12 April 1989.
THE LAW
1. The applicants have complained that the second applicant was
suspended from his school because the first applicant was opposed to
his corporal punishment for misbehaviour. They claim to be victims of
a violation of Article 2 of Protocol No. 1 (P1-2) of the Convention. The
Government contended that once the first applicant's opposition to
corporal punishment was established, there was no question of
punishing the second applicant in this way. The conditions for him
returning to school after the suspension were that he complete a
certain number of detentions, make up missed work and that he
undertake to behave himself in the future.
Article 2 of Protocol No. 1 (P1-2) to the Convention provides as
follows:
"No person shall be denied the right to education. In the
exercise of any functions which it assumes in relation to
education and to teaching, the State shall respect the right
of parents to ensure such education and teaching in conformity
with their own religious and philosophical convictions."
The Commission has examined the facts of the case and finds
that there is no evidence that the second applicant was unjustifiably
denied the right to education. It is true that he was suspended from
school for misbehaviour. However, after an initial "cooling off"
period of 10 days, he could have returned to school, as of 31 March
1987, if he had undertaken to behave himself. This he failed to do
until 13 October 1987. He was not faced with the prospect of corporal
punishment on his return to school. Within a few weeks of his
readmission he broke his undertaking and refused to give another. He
was, therefore, again suspended from school until he was no longer of
school age on 30 March 1988. The Commission considers that it was
reasonable in the circumstances of the particular case for the school
to require good behaviour from the second applicant before he could
resume his studies. By delaying his promise to behave he was partly
responsible for his temporary lack of education. The Commission
concludes therefore that the second applicant's complaint concerning a
denial of his right to education is manifestly ill-founded within the
meaning of Article 27 para. 2 (Art. 27-2) of the Convention.
The Commission also finds that there has been no interference
with the first applicant's right under Article 2 of Protocol No. 1
(P1-2) to have her son educated in conformity with her philosophical
convictions which opposed corporal punishment. It is clear from the
facts of the present case that her views were respected by the school
authorities and the second applicant was not suspended from school to
pressure the applicants to accept corporal punishment, but as an
alternative sanction to such punishment for his misbehaviour (cf.
Eur. Court H.R., Campbell and Cosans judgment of 25 February 1982,
Series A No. 48). The Commission concludes that the first applicant's
complaint under Article 2 of Protocol No. 1 (P1-2) is manifestly
ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of
the Convention.
2. The applicants have also invoked Articles 4, 5, 6 para. 3 (b)
and (c), 7, 8, 14, 17 and 18 (Art. 4, 5, 6-3-b, 6-3-c, 7, 8, 14, 17, 18)
of the Convention and Article 1 of Protocol No. 4 (P4-1), particularly
in relation to complaints concerning the refusal of legal aid by the
Magistrates Court and alleged discrimination in compulsory school age
limits. However the Commission considers that these provisions are
not pertinent to the factual circumstances of the application, with
the exception of Articles 6 and 14 (Art. 6, 14) of the Convention.
Moreover, Protocol No. 4 (P4) has not been ratified by the United
Kingdom. It thereby incurs no liability thereunder.
3. Insofar as the first applicant has complained of a breach of
Article 6 para. 3 (b) and (c) (Art. 6-3-b, 6-3-c) of the Convention
regarding a refusal of legal aid by the Magistrates Court, the
Commission notes that the first applicant made no attempt to appeal to
the Crown Court on the basis that her trial and conviction by the
Magistrates were unfair and to apply for legal aid for such an appeal.
The Commission is therefore unable to examine whether the present case
discloses a breach of Article 6 (Art. 6) of the Convention because she
has failed to exhaust domestic remedies. Accordingly this aspect of
the case must be rejected under Articles 26 (Art. 26) and 27 para. 3
(Art. 27-3) of the Convention.
4. Finally insofar as the applicants have complained of alleged
discrimination in relation to the compulsory school age, certain
sixteen year olds having to stay on at school for one or two terms
longer than others, the Commission recalls that Article 14 (Art. 14)
of the Convention guarantees freedom from discrimination in the
securement of Convention rights, and that, whilst Article 2 of
Protocol No. 1 (P1-2) secures the right to education, it does not
explicitly guarantee a right not to be educated. This latter element
is essentially the applicants' grievance because they claim that
once the second applicant had reached his 16th birthday on 17
December 1987 he should have been able to cease compulsory schooling
and, consequently, all enforcement proceedings should also have
ceased.
The Commission notes that indeed the enforcement proceedings
were terminated on 20 January 1988 shortly after the second
applicant's 16th birthday, when the care proceedings were withdrawn
with the second applicant's attendance at an Intermediate Treatment
Centre for suspended pupils until 30 March 1988. It also notes that
the object of the relevant legislation (the Education Act 1962 as
amended by the Education (School-Leaving Dates) Act 1976) was to
ensure secondary education and training for adolescent pupils for at
least three years and two terms, up to four years. The Commission
leaves open the question of the extent to which the Convention may
protect a minor from compulsory schooling, because it finds no
evidence in the case-file to suggest that the Education Acts 1962 and
1976 lacked an objective or reasonable basis or were discriminatory
within the meaning of Article 14 (Art. 14) of the Convention (cf.
Eur. Court H.R., Belgian Linguistic judgment of 9 February 1967,
Series A no. 5, pp. 33-35 paras. 9 and 10). The Commission concludes
that the applicants have not suffered any discrimination in the
securement of their Convention rights. It follows that this aspect of
the case is manifestly ill-founded, within the meaning of Article 27
para. 2 (Art. 27-2) of the Convention.
For these reasons, the Commission
DECLARES THE APPLICATION INADMISSIBLE.
Deputy Secretary to the Commission President of the Commission
(J. RAYMOND) (C.A. NØRGAARD)
Full & Egal Universal Law Academy