Submitted by Zizipho Zondani on
UNITED KINGDOM (NORTHERN IRELAND)
Title:
In the matter of application for Judicial Review by the Northern Ireland Commissioner for Children And Young People of Decisions made by Peter Hain, the Secretary of State and David Hanson, the Minister of State
Court:
High Court of Justice in Northern Ireland, Queen’s Bench Division
Date:
21 December 2007
CRC Provisions:
Article 3: Best Interests of the Child
Article 19: Protection from Abuse and Neglect
Other International Provisions:
European Convention on Human Rights, Article 3: Prohibition against Torture
European Convention on Human Rights, Article 8: Right to respect for private and family family
European Convention on Human Rights, Article 14: Prohibition of discrimination
Domestic Provisions:
Article 2 of the Law Reform (Miscellaneous Provisions) (Northern Ireland) Order 2006 (“Article 2”), Physical Punishment of Children
Human Rights Act 1998 (HRA), Section 7: Remedies Relating to an Unlawful Act by a Public Authority – Proceedings may only be brought by victims of the unlawful act.
Case Summary:
Background:
The Northern Ireland Commissioner for Children and Young People asked the court to rule that Northern Irish legal provisions allowing the corporal punishment of children are incompatible with the European Convention on Human Rights (ECHR), particularly with the prohibition against torture under Article 3, the right to a private life under Article 8 and the prohibition against discrimination under Article 14.
In Northern Ireland “reasonable punishment” can be used by parents as a defence to a charge of assault against their children. Following the decision in the European Court of Human Rights case A v. UK, which held that UK law failed to protect a child from serious assault by allowing a “reasonable chastisement” defense to serious assault, the Northern Irish executive introduced an order which removed the defence in cases of battery of a child causing actual bodily harm, aggravated assault, assault of a child causing bodily harm and common assault and cruelty to persons under the age of 16.
However, the Commissioner argued before the court that the amendment was not enough and only the complete prohibition of corporal punishment is consistent with the State’s obligations under the ECHR and the CRC.
Issue and resolution:
Corporal punishment. Whether a law allowing corporal punishment of children in certain situations violated the ECHR. The Court found the law does not violate the ECHR making legal certain forms of corporal punishment.
Court reasoning:
The Court decided that Northern Irish law on corporal punishment did not violate Article 8 ECHR on the right to respect for private and family life. Article 8 protects the physical and psychological integrity of children who had the same right not to suffer assaults as adults, but this right can be interfered with on certain conditions. In this case, the Court concluded that the “reasonable punishment” defence sought to protect children from physical violence outside reasonable chastisement and also preserved parents’ right to bring up their children. This was accepted as justifying the limitation placed on a child’s right to be free from assault.
The Court held there was no violation of the prohibition of torture or to inhuman or degrading treatment or punishment under Article 3 ECHR as the law prohibited punishment that causes actual bodily harm or that is deemed unreasonable in the context of behaviour, duration and physical or mental consequences. Punishment that would be allowed under the “reasonable punishment” defence would not reach the “minimum level of severity” amounting to torture, inhuman or degrading treatment or punishment prohibited under the ECHR.
The Court acknowledged that the UK had ratified CRC and that the UN Committee on the Rights of the Child recommended the UK ban all forms of corporal punishment including in the family. The Court accepted that the CRC could be considered when interpreting the ECHR however there was no obligation to strictly comply with it.
The Court also refused to rule that the law discriminated on grounds of age although adults enjoy full protection of criminal law against assault while children do not. The Court explained that the right to non-discrimination in Article 14 did not forbid all forms of discrimination or require equal treatment between persons, so the different treatment in law between adults and children could be accepted as there were objective and reasonable grounds. The Court expressed its opinion that there were restricted grounds on which discrimination is forbidden under the Convention and that age is not one of them. Even where age could be a ground of discrimination there would be no breach of Article 14 as the differential treatment sought to pursue a legitimate aim, to preserve parents’ rights to bring up their children in a safe way without invoking criminal law.
Excerpts citing CRC and other relevant human rights instruments:
61. The UNCRC has been ratified by the United Kingdom and all but two of the Member States of the United Nations. Articles 6-40 spell out a great many rights. Article 3 of the UNCRC requires that "in all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration." Article 19 enjoins States Parties to 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. The UN Committee on the Rights of the Child (in its Concluding Observations on the United Kingdom's First Report on its compliance with the Convention, 1995, para. 16) had been critical of the UK for not banning corporal punishment in private schools. But it also criticised the continued existence of the parental right of chastisement, and recommended the abolition of both (paras 31 and 32). In its second review, in October 2002, the Committee welcomed the ban in all schools, but maintained its recommendation that all corporal punishment in the family also be prohibited (paras. 35 and 36).
64. I observe also that whilst international instruments such as the UNCRC may well be taken into account in interpretation of the Convention, I find no warrant for Ms Higgins’ submission or that of the interveners that the ECrtHR is bound to or indeed is even likely to act in strict compliance with the terms of the UNCRC or the other international instruments to which I have made reference. That assertion confuses obligation with aspiration. The UNCRC is relevant and may inform the court’s decision on any interpretation of Article 3 with reference to children but it need not be determinative.
113. That case of course was reported in 2004 and since then the UN Committee on the Rights of the Child has criticised the continued existence of the parental right of chastisement and recommended its abolition . The fact of the matter is that Article 19(1) of the UNCRC required States parties to "take all appropriate legislative measures to protect the child from all forms of physical or mental violence". The use of the adjective "appropriate" in my view does provide plausible justification McLachlin CJ's interpretation. It is the Committee on the Rights of the Child which has arguably taken the matter a stage further in recent times by recommending the abolition of all corporal punishment for children. Even had the Government committed itself to fully implementing the UNCRC, which I do not believe it has done, it has not committed itself to accepting the interpretation on Article 19(1) placed on it by that Committee.
Follow Up:
The European Committee of Social Rights found on 27 May 2015 that the Republic of Ireland is violating the European Social Charter by allowing “reasonable chastisement,” similar to that allowed by Article 2 in Northern Ireland. While this ruling does not affect Northern Ireland the UK signed the same charter in 1962. When the ruling was handed down, the Commissioner issued a statement calling on the UK government to end all hitting at home.
Notes:
See related summary of A v. UK.
CRIN Comments:
CRIN believes this decision is not in compliance with the CRC. The CRC prohibits torture or other cruel, inhuman or degrading treatment against children (Article 37). States are required to take measures to protect children from all forms of violence (Article 19), including corporal punishment as recognized by the Committee on the Rights of the Child (General Comment 8). In its 2008 Concluding Observations to the UK and Northern Ireland the Committee on the Rights of the Child expressed its concern that the defense of reasonable chastisement has only been restricted and not removed, it has recommended the State prohibit all corporal punishment in the family and repeal its legal defences.
Citation:
[2007] NIQB 115
Link to Full Judgment:
http://www.bailii.org/nie/cases/NIHC/QB/2007/115.html
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.