CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 9 septembre 1996

.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. 25599/94                       by A and B                       against the United Kingdom           The European Commission of Human Rights sitting in private on 9 September 1996, the following members being present:              Mr.    S. TRECHSEL, President            Mrs.   G.H. THUNE            Mrs.   J. LIDDY            MM.    H. DANELIUS                  L. LOUCAIDES                  M.P. PELLONPÄÄ                  B. MARXER                  G.B. REFFI                  M.A. NOWICKI                  I. CABRAL BARRETO                  B. CONFORTI                  N. BRATZA                  I. BÉKÉS                  J. MUCHA                  D. SVÁBY                  A. PERENIC                  P. LORENZEN                  K. HERNDL                  E.A. ALKEMA                  M. VILA AMIGÓ              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 15 July 1994 by A and B against the United Kingdom and registered on 7 November 1994 under file No. 25599/94;         Having regard to:   -      the reports provided for in Rule 47 of the Rules of Procedure of       the Commission; -      the observations submitted by the respondent Government on       12 October 1995 and the observations in reply submitted by the       applicant on 29 December 1995;   -      the parties' oral submissions at the hearing on 9 September 1996;         Having deliberated;         Decides as follows:   THE FACTS         The applicants are both United Kingdom citizens.   The first applicant was born in 1984 and the second applicant, his father, was born in 1958.   The applicants are represented before the Commission by Mr. M. Gardner, solicitor, of Messrs. Morgan Bruce Binks Stern, London.   The facts of the case, as submitted by the parties, may be summarised as follows.   (i)    The particular circumstances of the case         The first applicant and his brother were placed on the local Child Protection Register in May 1990.   The first applicant was put on the Register because of "known physical abuse".   After the co-habitee of the first applicant's mother admitted hitting the first applicant with a cane, he was given a police caution, and both boys were removed from the Child Protection Register in November 1991.   The co-habitee subsequently married the first applicant's mother and became his stepfather.         In February 1993, the headteacher at the first applicant's school reported to the local Social Services Department that the first applicant's brother had disclosed that the first applicant was being hit with a stick by his stepfather.   The stepfather was arrested on 5 February 1993.   He was released on bail the next day.         The stepfather was charged with assault and tried in February 1994.   The judge's summing-up refers to the evidence and the relevant issues as follows:         "... What is it the prosecution must prove?   If a man       deliberately and unjustifiably hits another and causes some       bodily injury, bruising or swelling will do, he is guilty of       actual bodily harm.   What does unjustifiably mean in the context       of this case?   It is a perfectly good defence that the alleged       assault was merely the correcting of a child by its parent, in       this case the stepfather, provided that the correction be       moderate in the manner, the instrument and the quantity of it.       Or, put another way, reasonable.   It is not for the defendant to       prove it was lawful correction.   It is for the prosecution to       prove it was not.         This case is not about whether you should punish a very difficult       boy.   It is about whether what was done here was reasonable or       not and you must judge that...         ... What are the two arguments put before you?   The prosecution       say this boy was caned.   He was caned hard as is evidenced, they       say, by the bruises.   That it occurred over the period of a week       before his examination on 5 February of last year.   They say on       several occasions.   They say never in front of the boy's mother.       They say it was excessive, no matter how difficult a nine year       old was and that it was not lawful correction.   That is their       case.         The defence say here was a boy who on all accounts was very, very       difficult to handle.   He would not respond to school discipline.       He was not helped by ... Doctor B.   He would not respond to       anything that the social services could do and he could not be       controlled at home. They do not deny, effectively, the repeated       caning.   They say it was necessary, justified and reasonable and       he may have bruised more easily because of the drugs he was       prescribed for asthma or because he simply bruised more easily.       Those are the two arguments to consider, condensed I hope, to the       minimum.         What was the evidence for the prosecution first of all?   On       5 February last year [the first applicant] was examined by an       experienced consultant paediatrician at the ... Hospital ...       Doctor V.   She noticed a number of bruises on his body.   You now       have a photocopy of that diagram that she drew at the time       putting them actually on the body...         First she referred to a fresh red linear bruise on the back of       the right thigh.   She thought that was a single blow.   She       described the blood being squeezed out of the capillaries, do you       remember, to cause those two lines on either side.   She thought       it was consistent with a blow from a garden cane that we have       heard about and she thought it was an injury which occurred       within twenty-four hours of that examination on the 5th but she       said it is very difficult to be sure and to estimate.   She could       be out on that.         The second injury that she saw which you may think relevant was       a double bruise on the back of the left calf, also linear.   She       thought that looked a little bit older than the first one.   She       said it showed two separate linear lines and that meant two       separate blows...         The fourth injury that she described two feint lines on the back       of the left thigh.   They looked similar to the other in type.       Two blows she thought had caused them.   'I think they were one-       two days old.'         The fifth injury then.   Linear bruises on the right bottom. They       were linear.   There were three at different ages.   'I thought       they were older than the ones on the thigh and the left calf.       I thought they were up to one week old.   I thought they were       caused possibly at different times to each other.'   That is the       three she was referring to.   Those three bruises caused at       different times to each other. 'They were oblique and suggested       3 separate times.'         Finally number six, she referred to the two circular brownish       bruises but again, you may think they have nothing to do with the       case.   It is a matter for you, but she also included in the       number six a fading linear bruise, probably several days old.       She said in general terms, 'I thought the bruising was consistent       with the use of a garden cane and more than one time because the       bruises were at different stages.   Two was an absolute - twice       that is - was an absolute minimum.'   The most recent bruises she       put within twenty-four hours.   The oldest, about one week.   She       said that for a cane to cause bruising it must be used with       considerable force.   'It squeezes blood out of the capillaries.       A cane used with less force would not cause bruising.   If it was       used over clothing that would soften the blow considerably       because it would spread the force.'         She confirmed, as you know that Doctor C. was treating the [first       applicant] as a consultant for asthma and for behaviour problems       and it seems to be agreed all round that this little boy at that       time at any rate was a difficult little boy.   She was asked by       Mr. B. about vitamin C deficiency, scurvy and said she had never       seen a child with scurvy in her whole career.   Vitamin K       deficiency, again, it was suggested that would cause a tendency       to bruise in children.   She said, 'Yes, in children with liver       disease or babies,' but [the first applicant] in her opinion was       not suffering from it.   She said, 'I felt the general bruises on       his body were not excessive.'   That was her explanation if you       remember as to why she did not conduct any blood tests on the       boy...         ... [Doctor B.] said in terms, in answer to [prosecuting counsel]       ultimately, that fifty ... tablets prescribed in December 1992       would not lead to skin thinning or cause [the first applicant]       to bruise more easily.         So what did [the first applicant] tell you?   His evidence was not       really in dispute, was it? ...   He was asked about the visit to       hospital.   'Something had happened before I went to hospital.       I had the stick at home.   X. gave me the stick.   He gave to it       me more than once.   I can't remember how many times.   Sometimes       he would hit my legs.   It hurt a lot when he did this.   It made       me cry.   It was a stick out of the garden.   X. kept it in a       cupboard in the house.   I don't know why X. gave me the stick.       He didn't say anything.   It hurt a bit and a lot when I was given       the stick.   I can't remember how long before that visit to       hospital X. gave me the stick.   Sometimes it was daytime.       Sometimes it was nighttime.   It was always at home.'         ... The defence did call a witness, [the first applicant's       mother] ... She said that [the first applicant] had been, my       words, 'real trouble really ever since he was two years old.'       She used the expression: 'He was a handful.' ...   She said: '[The       first applicant] has always been one to have a lot of bruises.       My mother and I bruise easily.   We are asthmatics.   [The first       applicant] always has a lot of bruises.'         ... She said that she was unaware that her husband had been       caning [the first applicant].   She did know that the cane was in       the house.   She had never seen him actually use it.   She had seen       him threatened with it.   'I had seen the defendant hold the cane       to [the first applicant], though I hadn't done so.   I did approve       of my husband threatening [the first applicant] with the cane,       but not beating him with the cane.   I don't know when I slap [the       first applicant] if I bruise him or not.'"         The jury found the first applicant's stepfather not guilty of assault occasioning actual bodily harm by a majority verdict.   (ii)   Relevant domestic law         A summary of the domestic law and practice in connection with corporal punishment in private schools is to be found in the judgment of the European Court of Human Rights in the Costello-Roberts case (Eur. Court HR, judgment of 25 March 1993, Series A no. 247-C, pp. 54, 55, paras. 13 - 16).         Of particular relevance to the present case is the defence to both criminal charges and civil claims that the person against whom the charge or claim is made was a parent or a person in loco parentis who administers reasonable and moderate physical punishment with a proper instrument in a decent manner.   The concept of "reasonableness" permits the courts to apply standards prevailing in contemporary society with regard to the physical punishment of children.         In criminal proceedings for assault, the burden of proof is on the prosecution to satisfy the jury, beyond a reasonable doubt, that an assault was unlawful.   The prosecution must prove that the harm was not the result of reasonable chastisement by someone entitled to administer it.   In civil proceedings for assault, whilst the substantive law test is the same, the burden of proof of establishing that chastisement was reasonable is on the defendant, on a balance of probabilities.   COMPLAINTS         The applicants submit that there was no dispute that the cane had been kept and used to threaten the first applicant and to hit him repeatedly.   They submit that the judge left the jury in no doubt that the facts of the repeated canings were not in dispute, and that the finding of not guilty was therefore clearly based on the defence plea that the punishments were "necessary, justifiable and reasonable".         The applicants submit that the beating of the first applicant by his stepfather was in violation of Article 3 of the Convention.   They consider that the State was responsible under Article 1, and that it failed to secure protection for the first applicant of his rights under Article 3.   They submit press cuttings which indicate that in other cases similar to the present one, courts have accepted beatings with sticks, belts and electric flexes, causing heavy bruising, to be "reasonable" chastisement.   They point out that the State employs other means to protect children from assault in addition to the criminal law - e.g. investigation by social services, maintenance of non-statutory child protection registers and the like.   They consider, however, that such protection is undermined by the current state of the law which allows serious assaults of children in the course of "discipline" to persist.         In addition, or in the alternative, the applicants allege a violation of Article 8 of the Convention.         The applicants allege a violation of Article 13 of the Convention in that the first applicant has no remedy for the violation of his rights under Articles 3 and 8, and also of Article 14 of the Convention in that the law on assault effectively protects adults from the treatment suffered by the first applicant, but not children.         In connection with the question of remedies, the applicants also claim that they had no domestic remedies within the meaning of Article 26 of the Convention.   The second applicant was advised that a civil action for assault would not prove effective, given that the defence of "reasonable chastisement" is available in criminal and civil proceedings.   The applicants add that they were not required to pursue a civil remedy because of the intra-family nature of the case, and because it would have been wrong to put the first applicant through the trauma of a further court appearance.   PROCEEDINGS BEFORE THE COMMISSION         The application was introduced on 15 July 1994 and registered on 7 November 1994.         On 26 June 1995 the Commission decided to communicate the application to the respondent Government, pursuant to Rule 48 para. 2 (b) of the Rules of Procedure.         The Government's written observations were submitted on 12 October 1995, after an extension of the time-limit fixed for that purpose.   The applicants replied on 29 December 1995, also after an extension of the time-limit.         On 5 December 1995 the Commission granted the applicants legal aid.         On 13 May 1996 the Commission decided to invite the parties to a hearing on the admissibility and merits of the case.   At the hearing, which was held on 9 September 1996, the parties were represented as follows.         The Government:         Mr. Martin R. Eaton, Agent of the Government       Mr. David Pannick, QC, Counsel       Mr. Mark Shaw, Counsel       Ms. Caroline Price, Adviser, Home Office       Ms. Sue Ryan, Adviser, Department of Health       Ms. Sue Ball, Adviser, Department of Health       Ms. Betty Moxon, Adviser, Home Office         The applicants:         Mr. Allan Levy, QC, Counsel       Mr. Peter Duffy, Counsel       Mr. Michael Gardner, Solicitor       Mr. Peter Newell, Adviser       Mr. Nicholas Grief, Pupil Barrister   THE LAW   1.     The first applicant alleges violations of Articles 3, 8, 13 and 14 (Art. 3, 8, 13, 14) of the Convention in connection with the caning of the first applicant by his stepfather.         The Government first underline that they are not responsible for the conduct of the first applicant's stepfather.   They contrast the position with that of corporal punishment in school, where States are under an obligation to provide education, and hence have responsibility for matters occurring in school, even in private schools (see Eur. Court HR, Costello-Roberts v. the United Kingdom judgment of 25 March 1993, Series A no. 247-C, pp. 57, 58, paras. 26 - 28).   By reference to the Young, James and Webster case (Eur. Court HR, judgment of 13 August 1981, Series A no. 44), the Government accept responsibility in this context only in relation to the content of the relevant domestic law.         The Government claim that a civil action for assault would have been an effective remedy in respect of a complaint about corporal punishment, and say that there was no excuse for the applicants' failure to bring such an action.   The unwillingness of the applicants not to use the remedy for personal reasons does not alter that conclusion.   The Government also point out that, because of the different burdens of proof in civil and criminal cases, the applicants would have had a better chance of success in a civil action than in the criminal prosecution.         In connection with Article 3 (Art. 3), the Government claim that it is clear from the judgment of the Court in the Costello-Roberts case that corporal punishment is not prohibited in the school context, and the provision cannot impose higher standards in the home.   They contend that corporal punishment administered in private by a parent is less likely to breach the standards of Article 3 (Art. 3) than in school, where the punishment is likely to be administered by a relative stranger, in the presence of others.   They add that there was no institutional context in the present case, that there was no suggestion of any injury other than bruising, and that the jury was not satisfied that the stepfather's conduct was unreasonable in all the circumstances, having regard to the manner, method and degree of punishment.   The jury heard and saw the witnesses, an advantage which the Commission does not have.         As to the state of the domestic law, the Government argue that the domestic law complies with the requirements of Article 3 (Art. 3).   In particular, there is criminal and civil liability for corporal punishment which is not reasonable in all the circumstances, having regard to the manner, method and degree of punishment.   In each case, the test requires contemporary standards to be applied.   The Government contend that the criteria applied by English law are therefore very similar to those applied by the Court in relation to Article 3 (Art. 3)of the Convention.         In connection with Article 8 (Art. 8) of the Convention, the Government, again with reference to the Costello-Roberts case, recall that it would be rare for school disciplinary measures which do not breach Article 3 (Art. 3) to be in breach of Article 8 (Art. 8).   They submit that a similar reasoning applies in the context of disciplinary measures in the home.   As to the alleged imprecision of the criterion of reasonable chastisement, the Government recall that it is impossible to attain absolute precision in the framing of laws, particularly in fields in which the situation changes according to the prevailing views of society (see Eur. Court HR, Müller v. Switzerland judgment of 24 May 1988, Series A no. 133, para. 29).         Referring to Article 13 (Art. 13) of the Convention, the Government submit that the civil law of assault, supplemented by the criminal law, gives an adequate remedy in connection with the complaints under Articles 3 and 8 (Art. 3, 8) of the Convention.   They rely on the Costello-Roberts judgment (para. 40).         The applicants' representatives contest the Government's contentions.         As to State responsibility for the matters complained of, the applicants' representatives point to Article 1 (Art. 1) of the Convention and to the Commission's Report in the case of Costello- Roberts, where the Commission found, by reference to its admissibility decision in the case, 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, contrary to Article 3 (Art. 3) of the Convention. ... the United Kingdom's liability also extends to Article 8 (Art. 8) of the Convention ... to the extent that corporal punishment in ... schools may involve an unjustified interference with children's physical and emotional integrity".         Under Article 3 (Art. 3) of the Convention, the applicants' representatives underline that the physical treatment in the present case was considerably more serious than in the Costello-Roberts case, which was itself regarded as a borderline case by the European Court of Human Rights.   They see no reason to expect lower standards of protection for children in the home that at school, and consider that there is nothing inherently less inhuman or degrading when a child is corporally punished in the home than in an "institutionalised" setting. For example, no-one would expect a woman to have less legal protection from assault in the home than, say, in the workplace.   The applicants' representatives refer to recent research which has brought about an increased awareness of the dangers to children of physical abuse in the home.   They also submit a report from the first applicant's special needs co-ordinator which shows that since the first applicant has been with his father, the second applicant, and has no longer been subjected to the discipline of his stepfather, his appearance and behaviour have improved greatly.         Under Article 8 (Art. 8) in connection with the first applicant, the applicants' representatives emphasise that the Court in Costello- Roberts left open the question whether disciplinary measures which did not breach Article 3 (Art. 3) could also breach Article 8 (Art. 8), and continue that the Court has accepted that Article 8 (Art. 8) carries positive obligations in connection with physical integrity in its X & Y v. the Netherlands judgment (Eur. Court HR, judgment of 26 March 1985, Series A no. 91).   As to the question whether the domestic law is sufficiently clearly formulated to comply with the requirements of Article 8 (Art. 8), they consider that arguments about avoiding excessive rigidity cannot be applied when discussing violent and humiliating punishment.         In connection with Article 13 (Art. 13) of the Convention, the applicants' representatives accept that the effectiveness of a remedy does not depend on a successful outcome, but they consider that the decision of the criminal court in this case - and similar decisions in many other cases, civil and criminal - makes quite clear that neither civil nor criminal law offers any effective remedy in respect of the problems raised in the present case.         As under Article 13 (Art. 13), the applicants' representatives consider that there were no effective remedies at their disposal for the purposes of Article 26 (Art. 26) of the Convention: they add that there is no difference between the substantive test in domestic law, and there was no point in pursuing civil proceedings.   Moreover, once the criminal proceedings had failed, they would not have been able to obtain legal aid for civil proceedings.         The Commission recalls that, according to the generally recognised ruled of international law, a person is not obliged to pursue ineffective remedies, offering no prospect of success (cf. the Commission's decision on admissibility in the Costello-Roberts case, No. 13134/87, Dec. 13.12.90, in which neither civil nor criminal remedies were pursued, and the further case-law referred to there). In the present case, the question whether the chastisement of the first applicant was "reasonable" in domestic law was fully rehearsed before the domestic courts in the criminal proceedings against the first applicant's stepfather.   The jury's acquittal of the stepfather amounted to a finding that the prosecution had not established that the chastisement was unreasonable as a matter of domestic law.   The Commission has not been referred to any cases which indicate that the civil courts interpret "reasonable chastisement" differently from the criminal courts.         The Commission notes the difference in the burden of proof in the two jurisdictions, but does not accept that the difference is sufficient to require the first applicant to be involved in a further set of proceedings in which the outcome is likely to be the same as in the criminal proceedings, and in which he would not be able to raise any fresh arguments.         The Commission therefore finds that the first applicant has complied with Article 26 (Art. 26) of the Convention.         The Commission considers, in the light of the parties' submissions, that this part of the case raises complex issues of law and fact under the Convention, the determination of which should depend on an examination of the 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.   2.     The second applicant, too, alleges violations of Articles 3, 8, 13 and 14 (Art. 3, 8, 13, 14) of the Convention in connection with the caning of the first applicant by his stepfather.         The Commission notes, and the second applicant accepts, that there is no question in the present case of any interference with the second applicant's physical integrity.   The second applicant makes no allegations as to interference with his own right to respect for family life.         The Commission next recalls that in its above-mentioned decision on the admissibility of the Costello-Roberts case, it found, in a slightly different context, that the child's mother was precluded under Article 25 (Art. 25) of the Convention from bringing an application in her own right.         The second applicant has no independent complaints of his own in the present case; he does not claim to be an "indirect victim" of any alleged violations.         This part of the Convention 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.         For these reasons, the Commission, by a majority,         DECLARES ADMISSIBLE, without prejudging the merits, the first       applicant's complaints;         DECLARES INADMISSIBLE the second applicant's complaints.           H.C. KRÜGER                          S. TRECHSEL          Secretary                            President      to the Commission                     of the Commission