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. 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)