X AND Y v. the UNITED KINGDOM



AS TO THE ADMISSIBILITY OF

Application No. 14229/88

by X and Y

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 2 September

1986 by X and Y against the United Kingdom and registered on

20 September 1988 under file No. 14229/88;

        Having regard to:

     -  reports provided for in Rule 47 of the Rules of Procedure of

        the Commission;

     -  the Commission's decision of 9 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 10 November 1989 and the observations in reply

        submitted by the applicants on 15 March 1990;

     -  the Commission's decision of 6 October 1990 to hold a

        hearing in the case after a hearing on the same day in

        a similar application (No. 13134/87 Wendy and Jeremy

        Costello-Roberts v. the United Kingdom);

     -  the hearing held on 13 December 1990;

        Having deliberated;

        Decides as follows:

THE FACTS

        The applicants are citizens of the United Kingdom, born in

1938 and 1968 respectively.  They are mother and son and, at the time

of lodging the application, they lived together in Hove, Sussex.  They

are represented before the Commission by Messrs.  Binks Stern and

Partners, Solicitors, London.

        The facts, as submitted by the parties, may be summarised as

follows:

A.      The particular circumstances of the case

        On 29 September 1983 the second applicant, then a fifth form

pupil at BC, an independent private school, was knocked to the floor

by a fellow pupil who was chasing a younger boy.  On the morning of

the following day the second applicant defaced the cover of a file of

his fellow pupil with a pair of compasses.  The latter reported this

damage to the housemaster and the second applicant was sent to the

headmaster for punishment.  The Government state that the second

applicant had a history of bullying the fellow pupil concerned and

that he was punished for this behaviour, not just for vandalising the

file.

        The second applicant states that he was caned through his

trousers four times, the headmaster taking several steps back and

running at the boy before hitting him.  The Government deny that the

headmaster administered the punishment in this manner.  The second

applicant claims that after the caning he was in tears and

considerable pain.  He sat alone for about an hour, feeling unable to

walk and was excused rugby tackling practice.  (He was the captain of

the rugby team.)  The Government state that the applicant had not been

in tears when he left the headmaster's office and subsequently showed

off the marks of his punishment to other boys with pride.

        The second applicant returned home from school around 5.45pm..

He only showed his injuries to his mother after they had been noticed

by his sister, who drew their mother's attention to them.  The first

applicant states that she was horrified and took him straight to the

family doctor.  The doctor found that the second applicant had four,

still painful wheals across both buttocks, showing heavy bruising and

swelling.  He suggested that the applicants take the matter up with

the school, and, if necessary, the police.  This the applicants did

that same evening, showing those concerned the injuries.  The police

advised that the injuries amounted to evidence of assault occasioning

actual bodily harm.

        On 3 October 1983 the first applicant received a letter from

the housemaster stating that the second applicant had been caned for

"wanton vandalism".  The same day the first applicant and her husband

had interviews with the housemaster and headmaster at the school, but

the parents were not satisfied with the outcome.  The parents put the

matter fully in the hands of the police, who subsequently decided not

to prosecute the headmaster.  The parents then initiated civil

proceedings claiming damages for assault and loss of the term's school

fees because the second applicant was withdrawn from the school.

        The County Court rejected the claims on 28 July 1986.

Evidence was given by a senior police surgeon at the hearing.  He

expressed the view that, from studying the photographs taken of the

second applicant's injuries, the injuries were "entirely consistent

with normal caning to that part of the body which has come to be

regarded as the customary site for such punishment ...  The extent of

the injuries sustained compares with what might be expected ...  It

(was) most unlikely that excessive force was used at the time."  He

conceded that the boy would have been unable to walk for an hour

afterwards.

        In the second applicant's evidence at the hearing he

acknowledged that he had been previously caned at preparatory school -

apparently without complaint or ill effects.

        The County Court judge held that the parents had entered a

binding contract with the school in which it had been agreed, inter

alia, that the school was authorised to cane pupils as a disciplinary

punishment.  The use of such punishment was indicated to all parents

in the school's prospectus and regulations.  The force used in such

punishment must nevertheless be reasonable and will inevitably leave

marks and bruising.  He found nothing unusual or excessive in the

caning and considered that the parents had overreacted to the

incident.

        The applicants claim that the proceedings cost them £4513.36.

They did not appeal against the County Court decision as they were

advised by counsel that such an appeal had no prospects of success

whatsoever and would only involve them in even greater expense.

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 independent

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 present school participates in the Assisted Places Scheme

providing a total of 20 places for pupils whose fees are met by the

State.

        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 BC.  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 2 September 1986 and

registered on 20 September 1988.  (Registration was not effected

earlier due to delays by the applicant in returning the application

form and replying to requests for information.)  After a preliminary

examination of the case by the Rapporteur, the Commission considered

the admissibility of the application on 9 May 1989.  It decided to

give notice of the application to the respondent Government and to

invite the parties to submit written observations on the admissibility

and merits of the case.  The Government submitted their observations,

after two extensions of the time-limit, on 10 November 1989.  The

applicants submitted their observations, after an extension of the

time-limit, on 15 March 1990.

        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 a similar application, No. 13134/87, Wendy and Jeremy

Costello-Roberts v. the United Kingdom.

        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.

        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 it does 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 extent 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 concede that the first applicant did not have

any philosophical objections to corporal punishment and hence she has

not claimed to be a victim of a violation of Article 2 of Protocol

No. 1 (P1-2) to the Convention.  However, she states that she did not

realise  that such severe and degrading punishment would be used at

the school.  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 the finding of the County Court in this

case that the second applicant and her husband entered a binding

contract with the school in which it had been agreed, inter alia, that

the school was authorised to cane pupils as a disciplinary punishment.

In these circumstances the Commission concludes that the first

applicant may not claim under Article 25 (Art. 25) of the Convention

to be a  victim, either directly or indirectly, of a breach of

Articles 8 (Art. 8) and 13 (Art. 13) of the Convention by virtue of

the punishment suffered by the second applicant at the school in

question.  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 parents'

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.  He cannot be said to have waived his rights under Articles

3 (Art. 3), 8 (Art. 8) and 13 (Art. 13) of the Convention, nor can he

be said to have consented to the punishment in question, even if he

thought long after the event, before the County Court nearly three

years later, that he may have deserved some such 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 as the applicants did not appeal to the Court

of Appeal against the County Court's rejection of their civil claim

they did not exhaust available domestic remedies.  The applicants

state that they were advised by counsel that any further appeal would

have been futile in the circumstances of the case.

        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 caned by the headmaster of his private

school.  He states, inter alia, that the punishment was painful,

humiliating, degrading and emotionally and psychologically

distressing.  He had  hardly known the headmaster beforehand.  After

the incident he could not bear the idea of returning to the school and

facing the teachers again.  The applicants therefore agreed that he

should change schools.  The second applicant also submits that this

chastisement had 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 punishment was reasonable and

moderate in the circumstances, falling far short of the severe

ill-treatment proscribed by Article 3 (Art. 3) of the Convention.  The

second applicant did not appear unduly distressed after the incident.

There is no evidence that he suffered any lasting adverse effects,

whether physical or psychological, as a result of this kind of

punishment.  Nor is there any medical evidence that the particular

punishment was too severe.  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,

        unanimously,

        DECLARES INADMISSIBLE the first applicant's complaints;

        by a majority,

        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)

 

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