CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 13 décembre 1990

.sDD6737AE { font-size:11pt } .s211D6B00 { margin-top:0pt; margin-bottom:0pt; line-height:normal; widows:0; orphans:0; font-size:8.5pt } .sBB9EE52A { font-family:Arial }    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)