Submitted by basma on
ECtHR (UNITED KINGDOM)
Title:
A v. United Kingdom
Court:
European Court of Human Rights
Date:
23 September 1998
CRC Provisions:
Article 19: Protection from abuse and neglect
Article 37: Torture and deprivation of liberty
Domestic Provisions:
Section 47, Offences against the Person Act 1861: Assault occasioning actual bodily harm
Section 1(1), Children and Young Persons Act 1933: Offence of assault or ill-treatment of a child in a manner likely to cause him/her unnecessary suffering or injury to health
International Provisions:
Article 3, European Convention on Human Rights: Prohibition of torture and inhuman or degrading treatment or punishment
Case Summary:
Background:
A is a British citizen born in 1984. In 1990 he and his brother were placed on the local child protection register because of known physical abuse. The man living with the boys’ mother was given a police caution after he admitted to hitting A with a cane. The man subsequently married the mother and became the boys’ stepfather. In 1993, the head teacher at A’s school reported to the local Social Services Department that A’s brother had disclosed that A was being hit with a stick by his stepfather. The stepfather was arrested. A paediatrician confirmed that A's injuries were consistent with the use of a garden cane applied with considerable force on more than one occasion.
The stepfather was charged with assault occasioning actual bodily harm and tried in 1994. In his defence, he argued that hitting A had been necessary and reasonable since A was a difficult boy who did not respond to parental or school discipline. The jury found the stepfather not guilty by reason of the stepfather's act being “reasonable chastisement”. Under English common law, parents are protected if they administer punishment which is moderate and reasonable in the circumstances.
A applied to the European Commission, complaining that the State had failed to protect him from ill-treatment by his stepfather. The Commission declared the application admissible and in its report expressed the opinion that there had been a violation of Article 3 of the European Convention (unanimously). The UK Government accepted the reasoning and the conclusion of the Commission that there had been a violation of Article 3, but asked the Court to confine itself to considering the facts of the case without making any general statement about the corporal punishment of children. The applicant asked the Court to find a violation of Article 3 and to confirm that national law should not condone directly or by implication any level of deliberate violence towards children.
Issue and resolution:
Corporal punishment; whether there was a violation of Article 3 of the European Convention. The Court found the UK to be in violation of Article 3 of the European Convention and by extension Articles 19 and 37 of the CRC in relation to A and ordered the UK to pay damages and costs to A.
Court reasoning:
Ill-treatment must attain a minimum level of severity if it is to fall within the scope of Article 3. The assessment of this minimum is relative: it depends on all the circumstances of the case, such as the nature and context of the treatment, its duration, its physical and mental effects and, in some instances, the sex, age and state of health of the victim. A nine-year-old boy found by a paediatrician who examined him to have been beaten with a garden cane which had been applied with considerable force on more than one occasion meets the severity required to fall within the scope of Article 3.
In the Court’s view, the law did not provide adequate protection to A against treatment or punishment contrary to Article 3. Battery or ill-treatment that leads to actual bodily harm cannot be justified on the grounds of reasonable chastisement and punishment. Indeed, the UK Government had also accepted that its laws failed to provide adequate protection to children and should be amended. In the circumstances of the present case, the failure to provide adequate protection constitutes a violation of Article 3 of the Convention.
Excerpts citing CRC and other relevant human rights instruments:
The Court considers that the obligation on the High Contracting Parties under Article 1 of the Convention to secure to everyone within their jurisdiction the rights and freedoms defined in the Convention, taken together with Article 3, requires States to take measures designed to ensure that individuals within their jurisdiction are not subjected to torture or inhuman or degrading treatment or punishment, including such ill-treatment administered by private individuals (see, mutatis mutandis, the H.L.R. v. France judgment of 29 April 1997, Reports 1997-III, p. 758, § 40). Children and other vulnerable individuals, in particular, are entitled to State protection, in the form of effective deterrence, against such serious breaches of personal integrity (see, mutatis mutandis, the X and Y v. the Netherlands judgment of 26 March 1985, Series A no. 91, pp. 11–13, §§ 21–27; the Stubbings and Others v. the United Kingdom judgment of 22 October 1996, Reports 1996-IV, p. 1505, §§ 62–64; and also the United Nations Convention on the Rights of the Child, Articles 19 and 37).
Follow Up:
Despite this judgment, as at 2014 corporal punishment remains lawful in the home in the UK. In England and Wales, section 58 of the Children Act 2004 provides for “reasonable punishment” of children amounting to common assault. The defence of “reasonable punishment” is not available for injuries to children which cause actual bodily harm. The situation is the same in Northern Ireland (article 2 of the Law Reform (Miscellaneous Provisions) (Northern Ireland) Order 2006). In Scotland, “justifiable assault” of children, which can include actual bodily harm, is lawful under section 51 of the Criminal Justice (Scotland) Act 2003, but this excludes blows to the head, shaking and use of implements.
In rejecting the recommendations of the Universal Periodic Review in 2008, the UK Government stated that it sees no need for law reform since it believes the current law is working well, parents should be allowed to discipline children and surveys show that the use of corporal punishment in childrearing has declined.
A bill in Wales proposing to ban corporal punishment was defeated in the National Assembly in January 2014.
For more information, see: www.childrenareunbeatable.org.uk and www.endcorporalpunishment.org.
CRIN Comments:
CRIN believes this decision is consistent with the CRC. The CRC prohibits torture or other cruel, inhuman or degrading treatment or punishment of children (Article 37) and requires States to take all measures to protect children from all forms of violence (Article 19). This includes corporal punishment, as recognised by the Committee on the Rights of the Child (General Comment No. 8).
Citation:
Case of A. v. The United Kingdom (100/1997/884/1096)
Link to Full Judgment:
http://hudoc.echr.coe.int/sites/eng/pages/search.aspx?i=001-58232
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.