Submitted by Denitsa on
ECSR (FRANCE)
Title:
Association for the Protection of All Children (APPROACH) v. France
Court:
European Committee of Social Rights
Date:
4 March 2015
CRC Provisions:
Article 19: Protection from abuse and neglect
Article 28: Education
Other International Provisions:
European Social Charter (revised), Article 17: Right of children and young persons to social, legal and economic protection
European Convention on Human Rights, Article 8: Right to respect for private and family life
Domestic Provisions:
French Civil Code, Article 16-1: Respect for the body, inviolability of the body
French Civil Code, Article 371-1: Parental authority as a set of rights and duties whose purpose is to promote the interests of the child
French Civil Code, Article 515-9: Power of family affairs court to take urgent action to issue protection order if violence is committed within a couple that endangers one or more children
Law No. 2006-399 of 4 April 2006: Reinforced prevention and punishment of violence within the couple or against minors
French Criminal Code, Article 222-7/8: Acts of violence resulting in unintentional death shall be punished by twenty years’ imprisonment where it is committed against a minor under fifteen years of age
French Criminal Code, Article 222-11/12/13: Acts of violence committed against a minor under fifteen years of age causing a total incapacity to work for more than eight days shall be punished by five years’ imprisonment and a fine of €75 000; or three years' imprisonment and a fine of €45,000 if it causes an incapacity to work of eight days or less or causing no incapacity to work
French Criminal Code, Article 222-14: Habitual acts of violence committed against a minor under the age of fifteen years shall be punished: 1) by thirty years' imprisonment where they have caused the death of the victim; 2) by twenty years' criminal imprisonment where they have caused mutilation or permanent disability; 3) by ten years' imprisonment and a fine of €150 000 where they have caused a total incapacity to work in excess of eight days; 4) by five years' imprisonment and a fine of €75 000 where they have not caused a total incapacity to work in excess of eight days
Circular No. 91-124 of 6 June 1991 (amended by circulars Nos. 92-216 of 20 July 1992 and 94-190 of 29 June 1994): All corporal punishment is strictly prohibited in primary schools
Case Summary:
Background:
Various forms of corporal punishment are lawful in the home, in certain forms of alternative care and in schools based on the jurisprudence of French courts holding that there exists a “right of correction” in customary law. As a result, domestic provisions within the French civil and criminal codes concerning domestic violence and violence against children have not been interpreted consistently and the public does not understand the prohibition on all forms of corporal punishment.
APPROACH - an organisation which advocates for the complete prohibition of all corporal punishment of children - complained to the European Committee on Social Rights arguing that the abovementioned provisions of French law are in violation of Article 17 of the Revised European Social Charter (the “Charter“) as there is no explicit and effective prohibition of all corporal punishment of children in the family, schools and other settings and France has failed to act with due diligence to eliminate such punishment in practice.
Issue and resolution:
Legality of corporal punishment of children. The Committee held unanimously that France was in breach of Article 17 of the Charter as there was no express and comprehensive prohibition on all forms of corporal punishment of children in French law.
Court reasoning:
The Committee noted that there is a wide consensus at both the European and international level that the corporal punishment of children should be expressly and comprehensively prohibited in law, referring in particular to the General Comments of the UN Committee on the Rights of the Child No. 8 on the right of the child to protection from corporal punishment and other cruel or degrading forms of punishment and No. 13 on the right of the child to freedom from all forms of violence.
In deciding the case, the Committee followed its previous decision in World Organisation against Torture (OMCT) v. Portugal, Complaint No. 34/2006, of 5 December 2006, where it held that: “To comply with Article 17, states' domestic law must prohibit and penalize all forms of violence against children that is acts or behaviour likely to affect the physical integrity, dignity, development or psychological well-being of children. The relevant provisions must be sufficiently clear, binding and precise, so as to preclude the courts from refusing to apply them to violence against children. Moreover, states must act with due diligence to ensure that such violence is eliminated in practice.”
The Committee recognised the fact that the provisions of French law referred to in the complaint prohibit serious acts of violence against children, and that national courts will sanction corporal punishment where it reaches a specific threshold of gravity. However, none of the legislation referred to by the Government sets out an express and comprehensive prohibition on all forms of corporal punishment of children that is likely to affect their physical integrity, dignity, development or psychological well-being. Furthermore, it is unclear whether there still exists a judicially recognised “right of correction”, and there is no clear and precise case law prohibiting the practice of corporal punishment in comprehensive terms. As such, the Committee held that there is no sufficiently clear, binding and precise prohibition of corporal punishment set out in French law.
The Committee noted further that it had repeatedly found the situation in France to be in violation of Article 17 of the Charter under its reporting procedure (Conclusions 2003, 2005 and 2011).
Excerpts citing CRC and other relevant human rights instruments:
II. The United Nations
15. The United Nations Convention on the Rights of the Child New York, 20 November 1989; (entry into force 2 September 1990, United Nations Treaty Series, vol. 1577; ratified by France on 7 August 1990) includes the following provisions:
Article 19
“1. States Parties shall take all appropriate legislative, administrative, social and educational measures to protect the child from all forms of physical or mental violence, injury or abuse, neglect or negligent treatment, maltreatment or exploitation, including sexual abuse, while in the care of parent(s), legal guardian(s) or any other person who has the care of the child.
2. Such protective measures should, as appropriate, include effective procedures for the establishment of social programmes to provide necessary support for the child and for those who have the care of the child, as well as for other forms of prevention and for identification, reporting, referral, investigation, treatment and follow-up of instances of child maltreatment described heretofore, and, as appropriate, for judicial involvement.”
Article 28
“1. States Parties recognize the right of the child to education, and with a view to achieving this right progressively and on the basis of equal opportunity, they shall, in particular: …
2. States Parties shall take all appropriate measures to ensure that school discipline is administered in a manner consistent with the child's human dignity and in conformity with the present Convention.”
16. General Comment No 8. (2006) of the Committee on the Rights of the Child, “The right of the child to protection from corporal punishment and other cruel and degrading forms of punishment” (CRC/C/GC/8 §§21 - 22), includes the following statement:
“Once visible, it is clear that the practice directly conflicts with the equal and inalienable rights of children to respect for their human dignity and physical integrity. The distinct nature of children, their initial dependent and developmental state, their unique human potential as well as their vulnerability, all demand the need for more, rather than less, legal and other protection from all forms of violence. The Committee emphasizes that eliminating violent and humiliating punishment of children, through law reform and other necessary measures, is an immediate and unqualified obligation of States parties”
17. General Comment No. 13 (2011) of the Committee on the Rights of the Child, “The right of the child to freedom from all forms of violence” (CRC/C/GC/13;§17), includes the following statement:
“The Committee has consistently maintained the position that all forms of violence against children, however light, are unacceptable. “All forms of physical or mental violence” does not leave room for any level of legalized violence against children. Frequency, severity of harm and intent to harm are not prerequisites for the definitions of violence. States parties may refer to such factors in intervention strategies in order to allow proportional responses in the best interests of the child, but definitions must in no way erode the child’s absolute right to human dignity and physical and psychological integrity by describing some forms of violence as legally and/or socially acceptable.”
35. The Committee notes that there is now a wide consensus at both the European and international level among human rights bodies that the corporal punishment of children should be expressly and comprehensively prohibited in law.
The Committee refers in particular in this respect to the General Comment Nos. 8 and 13 of the Committee on the Rights of the Child.
Notes:
Immediately following the publication of this decision, the Council of Europe released an update on the progress towards prohibiting all corporal punishment in member states, according to which 11 states, including France, UK, Russia and Switzerland, have yet to make a clear commitment to prohibiting all corporal punishment. Some of these states have accepted recommendations to prohibit but have also indicated that they consider existing legislation adequately protects children from corporal punishment.
Follow-up:
The European Committee of Social Rights subsequently ruled in May 2015 that Ireland, Slovenia, Belgium and the Czech Republic are also in violation of the European Social Charter due to a lack of prohibition of all corporal punishment of children in these countries. The decisions are available through the Committee here and further information is available here.
CRIN Comments:
CRIN believes this decision is consistent with the CRC. Article 37 of the Convention prohibits inhuman or degrading treatment or punishment of children and Article 19 imposes on obligation on States to protect children from all forms of violence. This means that any form of corporal punishment of children must be prohibited by law.
Citation:
Complaint No. 92/2013
Link to Full Judgment:
http://hudoc.esc.coe.int/eng?i=cc-92-2013-dmerits-en.
This case summary is provided by the Child Rights International Network for educational and informational purposes only and should not be construed as legal advice.
