European Convention for the Protection of Human Rights and Fundamental Freedoms
All 47 Council of Europe member states have ratified the European Convention for the Protection of Human Rights and Fundamental Freedoms. Relevant provisions include the prohibition of torture and “inhuman or degrading treatment or punishment” (article 3) and guarantees of the rights to private and family life (article 8), an effective remedy (article 13) and non-discrimination (article 14).
The European Court of Human Rights has progressively condemned corporal punishment, in a series of judgments since the 1970s. In Tyrer v UK (1978), brought by a 15-year-old in the Isle of Man, the Court ruled that the judicial “birching” to which he had been subjected constituted “degrading punishment” within the meaning of article 3 of the Convention. The Court did not examine the question of whether there had also been a violation of the applicant’s right to non-discrimination on the grounds of sex and/or age (because of the provisions in law which specifically allowed for judicial corporal punishment of males aged under 21). Following the judgment, those with the power to give sentences of corporal punishment in the Isle of Man were informed by the Government that judicial corporal punishment was in breach of the European Convention, although it was 23 years before, in 2001, the legislation allowing for the imposition of sentences of corporal punishment was repealed.
The legality of school corporal punishment in the UK was challenged in Campbell and Cosans v UK (1982), Y v UK (1992), Costello-Roberts v UK (1993) and other applications:
- In Campbell and Cosans v UK, brought by two mothers whose children attended schools at which they were at risk of experiencing corporal punishment, the Court ruled that their right to ensure the education of their children in line with their philosophical convictions (article 2 of Protocol No. 1 to the Convention) had been breached. The Court decided that as neither child had been subjected to corporal punishment, there had been no violation of article 3. One of the children had been suspended from school when he refused to accept corporal punishment; the Court ruled that this violated his right to education under article 2 of Protocol No. 1 to the Convention.
- In Costello-Roberts v UK, the Court held that the school corporal punishment inflicted on a seven year-old was not in violation of article 3 or article 8, although it stated that it did not wish to be taken to approve of the retention of corporal punishment in a school.
- In Y v UK and other applications, the UK Government “bought off” the applicant, paying an agreed sum to avoid the case going to the Court (so-called “friendly settlements”). Despite this, corporal punishment was eventually prohibited in all state-supported schools in 1986, with the prohibition extended to cover private schools in England and Wales in 1998, in Scotland in 2000, and in Northern Ireland in 2003.
There have also been important decisions declaring inadmissible applications challenging bans on corporal punishment in the home and in schools (Phillip Williamson and others v UK (2000)). In Seven Individuals v Sweden (1982) the European Commission of Human Rights (a special tribunal which until 1998 made decisions on the admissibility of applications to the Court) found a complaint by seven parents that Sweden’s 1979 prohibition of all corporal punishment of children violated their rights to respect for private and family life, freedom of religion and to ensure their children’s education in conformity with their convictions to be inadmissible. The Commission found that the fact that the law provided equal protection to children and adults from assault could not be said to constitute an “interference” with the applicants’ private and family lives.
In A v UK (1998), its first judgment on parental corporal punishment, the Court found that the right of the nine year-old applicant “A” to protection from inhuman or degrading treatment had been breached, and the UK Government was responsible because of its law allowing “reasonable chastisement”. The Court ruled that the corporal punishment inflicted on the applicant, who had been beaten hard on several occasions with a cane, was severe enough to constitute a breach of article 3, and that since the applicant’s stepfather, who had inflicted the punishment on him, had been acquitted of assault occasioning actual bodily harm on the grounds that the punishment constituted “reasonable chastisement”, the Government had failed to provide adequate protection to the applicant and this constituted a violation of article 3.
The Court revisited the issue of parental corporal punishment in Wetjen v Germany (2018), finding that the German Government had not violated the applicants’ right to respect for their private and family life (article 8) by withdrawing parts of their parental authority and taking the children into care in order to prevent them from being routinely caned. It instead ruled that a fair balance had been struck between the interests of the parents and the best interests of the children, as parents’ right to communicate and promote their religious convictions in bringing up their children may not expose children to dangerous practices or to physical or psychological harm. The Court additionally declared that it was “commendable” for states to prohibit in law all forms of corporal punishment of children, “in order to avoid any risk of ill-treatment and degrading treatment of children”.
However, the Court has yet to deliver a clear judgment condemning all corporal punishment of children without exception – upholding children’s right to equal protection under the law on assault.