Submitted by crinadmin on
ECSR (IRELAND)
Title:
World Organisation against Torture ("OMCT") v. Ireland
Court:
European Committee of Social Rights
Date:
December 7, 2004
CRC Provisions:
Article 19: Protection from abuse and neglect
Other International Provisions:
Revised European Social Charter, Article 17 (Right to social, legal and economic protection).
Domestic Provisions:
Constitution of Ireland, Article 41 (Fundamental Rights: The Family), 42.1 and 42.5 (Fundamental Rights: Education)
Children Act 1908, sections 37 (Right to use reasonable and moderate chastisement) and 107;
Non Fatal Offences Against the Person Act 1997, section 24 (abolition of common law rule in respect of immunity of teachers from criminal liability for punishing pupils);
Child Care (Pre-School Services) Regulations 1996 and (Amendment) Regulations 1997, Reg. 8 (Corporal Punishment);
Child Care Act 1991, section 58 (exemptions from supervision of pre-school services); Children Act 2001, sections 201 (Discipline) and 246 (Cruelty to children).
Case Summary:
Background:
The World Organisation against Torture (OMCT) filed a complaint with the European Committee of Social Rights that Ireland was not in compliance with Article 17 of the Revised European Social Charter – the right of children and young persons to social, legal and economic protection - on the grounds that the corporal punishment of children in the home, in foster care, in residential homes and in the care of certain childminders was not prohibited.
Issue and resolution:
Corporal punishment. Looking to the wording of Article 17, other relevant international treaties (including the Convention on the Rights of the Child), and prior case law, the Committee concluded by 11 votes to 2 that Ireland was in violation of Article 17 of the Revised Charter.
Court reasoning:
In interpreting Article 17's prohibition on violence, the Committee considered the overall aim of the Revised Charter, which from past case law required that all forms of violence be prohibited in legislation regardless of where the violence occurs (within or without the family) or of the identity of the alleged perpetrator. In reaching this interpretation, the Committee noted its reliance on the Convention on the Rights of the Child and the emerging international consensus against the corporal punishment of children that has begun to develop since its entry into force. Therefore, because corporal punishment of children within the home is permitted in Ireland, Ireland is in violation of Article 17 of the Revised Charter.
Dissenting Opinion:
Mr. Lucien Francois contested the Committee's extensive application of Article 17 as “intellectually excessive” and “morally unjust.” Francois found the application of Article 17 excessive because it condemns the behaviour of parents allegedly acting in the child's interests where the child engages in dangerous behaviour and does not respond to verbal warnings. He found it inappropriate to use terms like "physical integrity", "degrading treatment" and "human dignity" in reference to a parent slapping a child on the wrist or smacking them on the bottom when the intent is simply to discipline in the child's interests. Further, Francois states that there is no scientific proof that corporal punishment of children is harmful to society and finds it "shocking to lump together categories of people as different as child abusers and parents who take care to use moderate correction towards their children."
Excerpts citing CRC and other relevant human rights instruments:
61. The Committee sets out its reasoning on the substance of the issue below, but by way of preliminary remarks the Committee recalls that when it stated the interpretation to be given to Art.17 in 2001 (see below), it was influenced by an emerging international consensus on the issue and notes that since this consensus is stronger. As regards its reference to the UN Convention on the Rights of the Child , the Committee recalls that this treaty is one of the most ratified treaties, and has been ratified by all member states of the Council of Europe including Ireland, and therefore it was entirely appropriate for it to have regard to it as well as the case law of the UN Committee on the Rights of the Child.
62 The Committee recalls its interpretation of Art.17 of the Charter in the General Introduction to Conclusions XV-2 (Vol.1, 2001).
63 The Committee furthermore recalls that the Charter is a living instrument which must be interpreted in light of developments in the national law of member states of the Council of Europe as well as relevant international instruments. In its interpretation of Art.17 the Committee refers, in particular to:
-
a. Article 19 of the United Nations Convention on the Rights of the Child as interpreted by the Committee on the Rights of the Child;
-
b. Article 3 of the European Convention of Human Rights as interpreted by the European Court of Human Rights (inter alia Tyrer v United Kingdom: (1979– 80) 2 E.H.R.R. 1 as regards judicial birching of children, Campbell v United Kingdom: (1982) 4 E.H.R.R. 293 as regards corporal punishment inflicted at school and A v United Kingdom: (1999) 27 E.H.R.R. 611 as regards parental corporal punishment);
-
c. Recommendation No.R(93)2 on the medico-social aspects of child abuse adopted by the Committee of Ministers on March 22, 1993; Recommendation No.R(90)2 on social measures concerning violence within the family adopted by the Committee of Ministers on January 15, 1990; Recommendation No.R(85)4 on violence within the Family adopted by the Committee of Ministers on March 26, 1985;
-
d. Recommendation 1666 (2004) “ Europe-wide ban on corporal punishment of children” adopted by the Parliamentary Assembly on June 24, 2004.
Follow Up:
Ireland has not submitted a report on its implementation of Article 17 of the Revised Charter since the Committee made its decision in this complaint. According to the Global Initiative to End All Corporal Punishment of Children (http://www.endcorporalpunishment.org), the government has stated a long term commitment to prohibition but has given no indication of timing.
Notes:
In November 2007, Ireland established a Joint Committee on the Constitutional Amendment on Children which has since proposed wording for an amendment to strengthen children's constitutional rights. The proposed amendment, however, does not directly address violence against children in general terms, much less corporal punishment. The text of the proposed amendment can be found here: http://www.oireachtas.ie/parliament/mediazone/proposalforanamendmenttotheconstitution/#d.en.1552
CRIN Comments:
CRIN believes that this decision is consistent with the Convention on the Rights of the Child. The Committee on the Rights of the Child has consistently interpreted Article 19 to mean that all forms of violence against children – including corporal punishment in the home – must be prohibited. In order to be in compliance with the CRC, the Revised European Social Charter, and other international instruments, Ireland should prohibit corporal punishment in all settings.
Citation:
Complaint no. 18/2003; (2006) 43 EHRR SE12
Link to Full Judgment:
http://hudoc.esc.coe.int/eng/?i=cc-18-2003-dmerits-en
This case summary is provided by the Child Rights Information Network for educational and informational purposes only and should not be construed as legal advice.