A. and B. v. the United Kingdom



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