IN THE HIGH COURT OF JUSTICE
QUEENS BENCH DIVISION
|Royal Courts of Justice|
London, WC2A 2LL
B e f o r e :
- and -
SECRETARY OF STATE FOR THE EDUCATION & EMPLOYMENT Defendant
Smith Bernal Reporting Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7421 4040, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
(instructed by Fiona Bruce & Co for the Claimant)
Mr. Hugo Keith
(instructed by The Treasury Solicitors for the Defendant)
AS APPROVED BY THE COURT
Crown Copyright ©
MR JUSTICE ELIAS:
“He who spares the rod hates his son,
but he who loves him is diligent to discipline him”.
Plainly not all Christians – I suspect not many – would consider that this and other such texts require corporal punishment to be an integral part of the child’s education. But that is how the Claimants interpret them.
Two preliminary observations.
The meaning of the section 548.
“Where, in any proceedings, it is shown that corporal punishment has been given to a pupil by or on the authority of a member of the staff, giving the punishment cannot be justified on the ground that it was done in pursuance of a right exercisable by the member of staff by virtue of his position as such.”
“Corporal punishment given by, or on the authority of, a member of staff to a child-
(a) for whom education is provided at any school, or
(b) for whom education is provided, otherwise than at school, under any arrangement made by a local education authority, or
(c) for whom specified nursery education is provided otherwise than at school
cannot be justified in any proceedings on the ground that it was given in pursuance of a right exercisable by the member of staff by virtue of his position as such.”
Some assistance as to what acts of corporal punishment are caught by the section is provided by subsection (2):
““Subsection (1) applies to corporal punishment so given to a child at any time, whether at the school or other place at which education is provided for the child, or elsewhere.”
“Any reference to giving corporal punishment to a child is to doing anything for the purpose of punishing that child (whether or not there are other reasons for doing it) which, apart from any justification, would constitute battery.”
“Member of Staff, in relation to the child concerned, means-
(a) any person who works as a teacher at a school or other place at which education is provided for the child, or(b) any person who (whether in connection with the provision of education for the child or otherwise)(i) works at that school or place, or(ii) otherwise provides his services there (whether or not for payment)
and has lawful control or charge of the child.”
The position at common law
“The cases cited to us show that the schoolmaster is in the position of the parent. What is to become of a boy between his school and his home? Is he not under the authority of his parent or of the schoolmaster? It cannot be doubted that he is; and in my opinion among the powers delegated by the parent to the schoolmaster, such a power as was exercised by the appellant in this case would be freely delegated.”
“It is clear law that a father has the right to inflict reasonable chastisement on his son. It is equally the law, and it is in accordance with very ancient practice, that he may delegate this right to the schoolmaster. Such a right has always commended itself to the common sense of mankind. It is clear that the relation of master and pupil carries with it the right of reasonable corporal chastisement.”
“……by the law of England, when a parent sends his child to school, he delegates to teachers at the school the power to inflict moderate punishment in the same way as he, as a parent, would have power to inflict moderate and reasonable corporal punishment in a proper case, and that he delegates to the teacher the taking of such steps as are necessary to maintain discipline with regard to the child committed to the teacher’s care. I think that that is the general position with regard to parents and schoolteachers.
Accordingly, when a parent sends his child to school, I think that the performance of reasonable and moderate punishment is, prima facie, part of the teacher’s duties which he may be called upon to perform from time to time, and I think, prima facie, when a school teacher inflicts corporal punishment, he is doing something as a schoolteacher. He is not going outside his position or duties as a schoolteacher, but he is acting within the scope of his employment as a teacher.”
Two further arguments.
The human rights claim
Article 9 states
(i) Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief and freedom, either alone or in community with others and in public or private, to manifest his religion or belief, in worship, teaching, practice or observance.
(ii) Freedom to manifest one’s religion or beliefs shall be subject only to such limitations as are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others.
Article 2 of the First Protocol provides –
No person shall be denied the right to education. In the exercise of any functions which it assumes in relation to education and to teaching, the State shall respect the rights of parents to ensure such education and teaching in conformity with their own religious and philosophical convictions.”
Are the Claimants victims?
Are the parents asserting a religious belief or conviction?
“It appears to the court somewhat artificial to attempt to separate off matters relating to internal administration as if all such matters fell outside the scope of Article 2. The use of corporal punishment may, in a sense, be said to belong to the internal administration of the school, but at the same time it is, when used, an integral part of the process whereby the school seeks to achieve the object for which it was established, including the development and moulding of the character and mental powers of its pupils.”
“Having regard to the Convention as a whole, including article 17, the expression “philosophical convictions”, in the present context denotes, in the courts opinion, such convictions as are worthy of respect in a “democratic society” and are not incompatible with human dignity; in addition, they must not conflict with fundamental right of the child to education, the whole of article 2 being dominated by its first sentence. The applicants’ views relate to a weighty and substantial aspect of human life and behaviour, namely the integrity of the person, the propriety or otherwise of the infliction of corporal punishment and the exclusion of the distress which a risk of such punishment entails. They are view which satisfy each of the various criteria listed above: it is this that distinguishes them from opinions that might be held on other methods of discipline or on discipline in general.”
Is it the practical manifestation of a belief or a practice in conformity with a religious conviction which has been unlawfully interfered with?
“Article 2 of Protocol No.1 enjoins the State to respect a parent’s convictions, be they religious or philosophical, throughout the entire State education programme. That duty is broad in extent as it applies not only to the content of education and the manner of it provisions but also to the performance of all the “functions” assumed by the State. The verb “respect” means more than “acknowledge” or “take into account.” In addition to a primarily negative undertaking, it implies some positive obligations on behalf of the State.”
At paragraph 28 the court reiterated an approach to this provision which it had adopted in the earlier case of Kjeldsen, Busk, Madsen & Pederson v Denmark 1 EHRR 711:
“…..the setting and planning of the curricula fall in principle within the competence of the Contracting States. This mainly involves questions of expediency on which is not for the court to rule and whose solution may legitimately vary according to the country and the period. Given that discretion, the Court has held that the second sentence of Article 2 forbids the State to pursue an aim of indoctrination that might be regarded as not respecting parents’ religious and philosophical convictions. That is the limit that must not be exceeded.”
Three further submissions of the Secretary of State.
“[It did not] wish to be taken to approve in any way the retention of corporal punishment as part of the disciplinary regime of a school.”