United Kingdom Journals

To Smack or Not to Smack?
A review of A v United Kingdom in an international and European context and its potential impact on physical parental chastisement.

Rhona K.M. Smith LL.B.(Hons.), Ph.D.

Equality in Europe Research Unit
Lecturer in Law
School of Public Administration and Law
Robert Gordon University

<rhona.smith@unn.ac.uk>

Copyright © 1999 Rhona Smith.
First Published in Web Journal of Current Legal Issues in association with Blackstone Press Ltd.

Summary

The recent decision of the European Court of Human Rights in A v UK (Judgement of 23 September 1998) provoked a flurry of media interest. The case concerned the responsibility of a State to protect children within its jurisdiction from excessive corporal punishment. It was held that the United Kingdom had failed to provide adequate protection to children in such situations. This article will consider the judgement of the Court and assess the obligation incumbent upon the State, having regard to European and International law. The case is particularly important both in light of the passing of the Human Rights Act which necessitates the national courts taking account of the European Convention on the Protection of Human Rights and Fundamental Rights and associated jurisprudence, and in light of the recent comments by the United Nations Committee on the Rights of the Child.

Following a brief historical appraisal, International and European provisions will be considered in order to establish the legal constraints on parental chastisement. The case of A v UK will then be analysed in this context with comments on the potential for reforming national law. In conclusion, it will be shown that although A v UK represents an advancement in the application of the European Convention, the decision is in conformity with the spirit of existing European and International laws.

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Contents

Introduction

Physical Chastisement of Children

Physical chastisement - the salient legal provisions

The Convention on the Rights of the Child
The European Convention

A v The United Kingdom

The Facts of the Case
The Report of the European Commission of Human Rights
The severity of the punishment
State responsibility for the punishment
Appropriateness of existing UK legislation
Findings of the Commission
The Judgment of the European Court of Human Rights

The importance of A v United Kingdom

The position in Scotland

The future - implications of A v United Kingdom

The forthcoming report of the United Kingdom to the Committee on the Rights of the Child
The Human Rights Act 1998
Reforming the law

Conclusions

Bibliography

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Introduction

Much media interest has surrounded the recent decision of the European Court of Human Rights in the case of A v UK. The case focused attention on the right of parents to physically chastise their children. From a legal perspective, the case is interesting insofar as it advances the scope of Article 3 of the European Convention on the Protection of Human Rights and Fundamental Freedoms. Accordingly, this article will examine the scope of this case and analyse the Court and Commission's invocation of Article 3 of the Convention, assessing the case in the context of the United Nations Convention on the Rights of the Child, which the United Kingdom has ratified and which imposes obligations on the United Kingdom in this respect. The impact of the European Convention and its related jurisprudence has been altered by the Human Rights Act 1998 so this will also be considered. Finally some tentative conclusions will be drawn on the contemporary legal position of parental chastisement vis-à-vis the United Kingdom.

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Physical Chastisement of Children

From biblical times, it has been accepted that parents have the right to physically chastise their children. "He that spareth his rod hateth his son" (Proverbs 13, v24) has transcended the centuries to become "spare the rod and spoil the child" - a clear statement of the perceived desirability of strict parental discipline.

Children, however, are a recognised vulnerable group in society. The Declaration of Geneva 1924 first proclaimed that "mankind owes to the child the best that it has to give". This instrument drafted by Save the Children and adopted by the League of Nations, was subsequently reinforced by the United Nations in its 1959 Declaration on the Rights of the Child. Two decades later, 1979 was designated the International Year of the Child. Building on this initiative, the United Nations began compiling a detailed international instrument on the rights of children, a process which culminated in the adoption of the United Nations Convention on the Rights of the Child 1989.⁽¹⁾ With the primary focus of this instrument being the "best interests of the child", the Convention represents a landmark for children. As Van Beuren comments (1995, p xix) "international law now provides policy makers with a diplomatic and non-political framework within which it is possible to argue for the incorporation of specific children's entitlement".

The Convention marks the end (in legal terms) of the "age-old idea that children... are no more than possessions of their guardians" (Hammarberg 1990, p99). The central issue is one of respect, a respect drawn from the "emotional maturity" to view the child as a separate person (Van Beuren 1995, p xxii). It is therefore perhaps fitting that the Convention has, inter alia, heralded a global evaluation of the right of parents to physically chastise their children.

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Physical chastisement - the salient legal provisions

There is no legal provision preventing the physical chastisement of children. However, should a child feel aggrieved at the treatment inflicted by a parent or guardian, some relief may be afforded by provisions of the salient international treaties. For a child in the United Kingdom, the European Convention on Human Rights and Fundamental Freedoms and the Convention on the Rights of the Child are both in force and offer potential redress.

The European Convention has , in effect, been incorporated into national law by the Human Rights Act 1998 which has recently received the royal assent. Section 2 seeks to impose on courts and tribunals adjudicating on disputes arising from the Act an obligation to take into account judgements of the European Court of Human Rights, opinions and decisions of the Commission of Human Rights and of the Committee of Ministers. Accordingly, the onus will be on the national courts to ensure that their judgements and their application of the national law is in compliance with the provisions of the European Convention, as interpreted by the European Court of Human Rights et seq.

The European Convention is not the sole human rights instrument binding on the United Kingdom which impinges on parental chastisement. Of potentially greater significance is the United Nations' Convention on the Rights of the Child 1989 which the United Kingdom has ratified. Although the United Kingdom is obliged to ensure the implementation of the Convention throughout its jurisdiction under international law, the United Kingdom has a dualistic approach to treaty law. Therefore a Convention does not become part of the national law of the country until such a time as it is specifically incorporated by an Act of Parliament.⁽²⁾ See, for example, the dicta of Lord Templeman in the case of JH Rayner (Mincing Lane) Ltd v DTT [1990] 2 AC 418 (HL) at p476:

"A treaty is a contract between the governments of two or more sovereign states. International law regulates the relations between sovereign states and determines the validity, the interpretation and the enforcement of treaties. A treaty to which Her Majesty's Government is a party does not alter the law of the United Kingdom. A treaty may be incorporated into and alter the laws of the United Kingdom by means of legislation. Except to the extent that a treaty becomes incorporated into the laws of the United Kingdom by statute, the courts of the United Kingdom have no power to enforce treaty rights and obligations at the behest of a sovereign government or at the behest of a private individual."

No such Act has been passed with respect to the Convention on the Rights of the Child. The result is that any violation of the Convention on the Rights of the Child is a matter for the international community rather than the domestic courts (supra, Lord Templeman's dicta), id est, should the United Kingdom breach its obligations under the United Nations' Convention, any claims could only be raised in accordance with international law. At present, the Convention is essentially enforced via a series of reports from the High Contracting Parties to the Committee on the Rights of the Child (Articles 43,44). There is no procedure for actioning individual complaints.

What rights pertaining to parental chastisement accrue under each of these instruments?

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The Convention on the Rights of the Child

Two articles in the Convention on the Rights of the Child are of particular relevance: Articles 19 and 37. Article 19 of the Convention on the Rights of the Child provides:

"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 that 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 37(a) provides at the salient part:

"No child shall be subjected to torture or other cruel, inhuman or degrading treatment or punishment"

When the Convention was being drafted "the majority of states were not even willing to discuss a prohibition on parental physical punishment" (Van Beuren 1995, p89) therefore no specific article was included in the final document. However, the Committee on the Rights of the Child has been instrumental in precipitating moves towards international acceptance of the detrimental effects of physical parental chastisement, advancing strong arguments for the progressive abolition of all forms of physical chastisement of children. Evidence can be gleaned from responses to State reports, such as that of the United Kingdom. In its Concluding Observations on the Report of the United Kingdom and Northern Ireland, the Committee recommended that physical punishment of children in families be prohibited in the light of the provisions set out in Articles 3 and 19 of the Convention (CRC/C/15/Add. 34, para 31).

In furtherance thereof, the Committee suggested that the United Kingdom consider "the possibility of undertaking additional education campaigns... [which] would help to change societal attitudes towards the use of physical punishment in the family and foster the acceptance of the legal prohibition of the physical punishment of children." (id.). Such a re-education programme has proven successful in other States. Sweden, which outlawed parental chastisement of children in 1979 (the International Year of the Child), implemented a significant public awareness campaign focusing attention on non-physical forms of disciplining and controlling children. The Children's Rights Commission (in Sweden) and the Swedish Parliament (the Riksdag) considered the prohibition on parental chastisement (Foraldrabalken Ch. 6, para 3) a natural development following the prohibitions on beating servants and wives and the abolition of corporal punishment in schools (Barton 1992).

It must be remembered, given that the Convention on the Rights of the Child has a universal application, that there are more fundamental threats to the welfare of children which will be prioritised at the international level: for example, the high mortality rates caused by common (preventable) illnesses such as measles, diarrhoreal disease, and malnutrition and problems such as child labour. It is unlikely that the international community will consider a protocol to the Convention on parental chastisement in the foreseeable future. The onus will thus be on the Committee on the Rights of the Child to continue its work progressively guiding States towards prohibiting the physical punishment of children.

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The European Convention

The European Convention on the Protection of Human Rights and Fundamental Freedoms, being essentially generic, does not explicitly mention parental chastisement. Rather, relevant cases before the Council of Europe have been brought under Article 3 and (for instances of corporal punishment in schools) the protocol on education (Protocol 1, Article 2).

Article 3 of the Convention is the principal right at issue in most cases. It provides:

"[n]o one shall be subjected to torture or to inhuman or degrading treatment or punishment"

Article 8 enshrines the right to respect for private and family life. It has minimal bearing on the matter, the Court and Commission normally considering the matter under Article 3 or the Protocol. As the issue of corporal punishment in school is outwith the scope of this article, the protocol will not be considered.

Although the rights enshrined in the European Convention are less specific, the fact that the Human Rights Act forces judicial cognisance of both the Convention and the case law renders it a more attractive enforceable proposition for the child when compared to the Convention on the Rights of the Child.

The European Convention was the vehicle used to question the legitimacy of excessive parental discipline in the case of A v UK. However, the Convention on the Rights of the Child remains significant, not least due to the emphasis placed on its provisions by the European Court.

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A v The United Kingdom

The applicant (a boy aged nine years) initiated a complaint before the European Commission of Human Rights (Application No. 25599/94), alleging that the United Kingdom had violated his rights under the European Convention for the Protection of Human Rights and Fundamental Freedoms 1950. This alleged violation was precipitated, inter alia, by the United Kingdom not adequately protecting him from being subjected, by his stepfather, to treatment or punishment contrary to Article 3 of the Convention.

The Facts of the Case

The applicant and his brother were placed on the Child Protection Register in May 1990 because of "known physical abuse", their mother's cohabitee (subsequently their step-father) being issued with a police caution after he admitted hitting A with a cane. The boys were removed from this Register in November 1991. However, in February 1993, the Head Teacher at A's school reported allegations to the local Social Services Department that A was again being hit with a stick by his (by then) stepfather. A was examined by a consultant paediatrician who found the following marks on his body (Court para 9):

(1) a fresh linear bruise on the back of the right thigh, consistent with a blow from a garden cane, probably within the preceding twenty-four hours; (2) a double linear bruise on the back of the left calf, consistent with two separate blows given some time before the first injury; (3) two lines on the back of the left thigh, probably caused by two blows inflicted one or two days previously; (4) three linear bruises on the right bottom, consistent with three blows, possibly given at different times and up to one week old; (5) a fading linear bruise, probably several days old.

The bruising was considered consistent with the use of a garden cane, applied with considerable force.

The stepfather was charged with assault occasioning actual bodily harm (s.47 Offences Against the Persons Act 1861, as amended) and tried a year later in February 1994. Although the defence did not dispute that the stepfather had caned the boy on a number of occasions, it was argued that such chastisement was reasonable and necessary since A was a difficult child. In summing up, the Judge advised the jury that:

"It is a perfectly good defence that the alleged assault was merely the correcting of a child by its parent, in this case the stepfather, provided that the correction be moderate in manner, the instrument and the quantity of it.".(Court para 10, Commission para 19)

In light thereof, the jury found the applicant's stepfather not guilty of assault occasioning actual bodily harm. The applicant and his father decided to bring a complaint before the European Commission of Human Rights.

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The Report of the European Commission of Human Rights

The applicant claimed violations of Articles 3, 8, 13 and 14 (with 3 or 8) of the European Convention. The Commission found that the facts disclosed a breach of Article 3 (unanimously), no breach of Article 13 and that there was no need to examine Articles 8 or 14.

The Commission stated (at para 32) that there were two principal issues in this case:

"whether the applicant was subjected to degrading treatment or punishment within the meaning of Article 3 and, if so, whether State responsibility attaches to the United Kingdom in respect of such treatment or punishment"

The severity of the punishment

The severity of the punishment inflicted on A was held sufficient to justify invocation of the Convention.

The Commission noted (at para 37) that the European Court of Human Rights has attested in a number of cases that physical abuse must attain a minimum level of severity in order to infringe Article 3. Any assessment of this minimum depends on all the circumstances of the case including the duration of the treatment, its physical and mental effects, and the sex, age and state of health of the victim (Ireland v United Kingdom, Series A, No. 25 (1978), para 162). It was not contested (either before the national court or the Commission) that the applicant had been beaten repeatedly with a garden cane used with considerable force. This finding was reinforced by the fact that the prosecuting authorities found the severity of the applicant's treatment merited the initiation of criminal proceedings against the stepfather (at para 39).

Also relevant is the nature of the treatment or punishment and the identity of the perpetrator - a crucial issue in previous cases has been the institutionalisation of the violence in question. For example, in the case of Tyrer v United Kingdom, Series A , No. 26 (1978), the Court was concerned that judicial corporal punishment was institutionalised violence (Tyrer, para 33) and an assault on the recipient's dignity and physical integrity.

Similarly, corporal punishment in schools has been considered capable of infringing the Convention because the school as a purveyor of education is responsible to the State for the carrying out of that education. In Campbell and Cosans v United Kingdom, Series A, No. 48 (1982), the use of the belt in schools was not deemed to cause sufficient suffering or degradation to occasion a violation, but there was little doubt that responsibility for the administration of the treatment lay with the State (through its obligation to provide education). In that case, the degree of humiliation and degradation experienced by (potential) recipients of "the belt" in schools was considered insufficient to invoke Article 3, the use of such punishment being at that time so traditional in Scottish schools that the applicants were neither humiliated or debased in the eyes of others or of themselves to the requisite degree (Campbell and Cosans at paras 28-30).

The severity of the beatings with the cane which A endured was considered to be such that Article 3 was applicable. This case was thus distinguished from that of Costello-Roberts v UK, Series A, No. 247C (1993) in which a seven year old was subjected to corporal punishment at a private English school: three smacks, administered by a soft soled shoe through the child's shorts, with no visible sign of injury was considered insufficiently severe by the majority of the Commission (Costello-Roberts at para 43) and by the Court (Costello-Roberts at para 32).⁽³⁾

In the instant case, the UK Government placed emphasis on the fact that the punishment was administered by the child's stepfather, a legal guardian of the child, thereby lacking this element of "institutionalised violence". It was the view of the Commission that the nature of the punishment was decisive rather than the administrator (para 40). Consequently the fact that the treatment was administered by a parent in the context of the home was not "determinative". The punishment in itself attained the level of seriousness necessary to constitute degrading treatment or punishment within the meaning of Article 3 of the Convention.

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State responsibility for the punishment

The emphasis on State responsibility for the offending treatment or punishment poses potential problems in this case as the treatment is neither institutionalised (as in Tyrer v UK) nor administered by a State's servants or agents (as in Ireland v UK).

The Commission focused on the obligation incumbent on a State to secure to everyone within its jurisdiction the rights articulated in the Convention (Article 1). Accordingly, the UK was under an obligation to secure to A freedom from degrading treatment or punishment contrary to Article 3. Having established that the treatment or punishment infringed Article 3, the Commission looked to apportion responsibility to the State. As the Commission noted, the obligation on the State under Article 1 of the Convention "cannot be interpreted as requiring the State to guarantee through its legal system that inhuman or degrading treatment is never inflicted by one individual or another or that, if it is, the perpetrator will be subject to criminal sanctions" (para 48). Rather the State will be held responsible if the domestic legal system "fails to provide practical and effective protection of the rights guaranteed by Article 3" (id).

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Appropriateness of existing UK legislation

The Commission was not swayed by the United Kingdom's contention that "reasonable and moderate" under English law and "inhuman or degrading" under European law involved similar tests. It was noted that there had been a number of successful prosecutions under the pertinent national legislation (Commission para 54) but given the lack of statistical information on acquittals and decisions of "no case to answer", this was inconclusive.

Further support was gleaned from the United Nations' Convention on the Rights of the Child which, when commenting originally on the United Kingdom's Report to it (submitted in accordance with Article 44 of the Convention), was critical of UK laws in this respect, expressing concern about the "national legal provisions dealing with reasonable chastisement within the family" (CRC/C/15/Add. 34, 15/2/95, para 16). The principal issue of concern was that the "imprecise nature of the expression of reasonable chastisement as contained in these legal provisions may pave the way for it to be interpreted in a subjective and arbitrary manner" (id). The instant case is perhaps a useful example of this.

The Commission considered that the national law clearly did not provide a fail-safe mechanism to protect children from excessive physical punishment.

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Findings of the Commission

The Commission concluded that "the protection afforded .. by the [English] law to children within the home is significantly reduced by the defence open to parents and those in loco parentis that the acts in question were lawful, as involving the reasonable and moderate physical punishment of the child" (para 50). Given that A's stepfather was found not guilty on the grounds of reasonable chastisement, English law had clearly failed to protect A's interests.

Accordingly, the Commission found a violation of Article 3.

The Judgment of the European Court of Human Rights

The Commission elected to bring the complaint before the European Court of Human Rights for a definitive ruling (in accordance with Article 48 of the Convention). Although both the Commission and the UK Government accepted that there had been a violation of Article 3, the Court considered it necessary to examine the facts and circumstances of the case for itself. Having so done, the Court concluded that the minimum level of severity necessary to invoke Article 3 had been reached (Court para 21).

Consequently, the Court examined the obligations of the UK under Article 1 of the Convention, stating that States are required "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." (Court para 22). English law was found to permit the situation whereby a child can be the victim of treatment of sufficient severity that Article 3 of the Convention is infringed, yet the perpetrator (in this case, the stepfather) can legitimately be acquitted of assault on invocation of the defence of "reasonable chastisement".

Children, and other vulnerable individuals, were singled out by the Court as being particularly entitled to State protection in the form of effective deterrence against such serious breaches of personal integrity (id). The Court cited the Convention on the Rights of the Child in this respect. In the Court's view English law did not provide adequate protection to the applicant against treatment or punishment contrary to Article 3. Such a failure constituted a violation of Article 3 of the Convention (Court para 24).

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The importance of A v United Kingdom

The principal area of concern in the instant case was the verdict of the jury and its legitimacy in terms of the salient English law. The decision of the English jury was consistent with previous case law: the reasonableness of the force used by a parent in chastising a child is a question of fact for the jury. (In the landmark case of R v Hopley (1860) 2 F&F 202, it was held that moderate and reasonable parental chastisement did not invoke criminal law.)

In the opinion of the European Commission and the European Court, the precipitating factor in this case was the legitimacy of the jury's decision. The physical abuse suffered by A fell within the ambit of the Convention and, therefore, domestic law should have prohibited/punished such behaviour. The successful invocation of the defence of reasonable chastisement by A's stepfather in a situation where that chastisement gave rise to a claim under Article 3 of the Convention is clearly problematic - the United Kingdom is obligated under International law to give effect to the Convention yet the law which the national courts must uphold can occasion violations of the Convention.

Also relevant is the identity of the perpetrator. In the instant case, the punishment was administered by the child's stepfather, a legal guardian of the child. Previous cases have involved detailed discussion on the State responsibility for the actions of the perpetrator. Such an emphasis poses potential problems in this case as the treatment is neither institutionalised (as in Tyrer v UK) nor administered by a State's servants or agents (as in Ireland v UK).

Consequently, in the instant case neither the Commission nor the Court looked to attribute responsibility for the administration of the punishment to the State. Rather they found responsibility with the State through its failure to protect the applicant from degrading treatment or punishment within the meaning of Article 3 of the Convention (Commission para 55, Court para 24). It was this failure which constituted the violation. The Court did not hold the United Kingdom responsible for the actions of the stepfather, rather the State was responsible for not providing adequate judicial protection to A against such treatment.

This case advances the scope of Article 3 insofar as it may be viewed as extending the scope of State responsibility. Although Article 3 was found to have been breached in the case, the State clearly had no control over the treatment which A endured, it being carried out within a domestic setting. The Court and Commission therefore employed Article 1 (the State's responsibility to secure, inter alia, the freedom enshrined in Article 3 to all within its jurisdiction), concluding that the United Kingdom was under an obligation, through its judicial system, to ensure that the applicant would be adequately protected from infringing treatment. In the instant case, the beatings were a moot point. However, A's stepfather was legitimately found not guilty under the domestic law. In these circumstances, the United Kingdom had failed to provide an appropriate legal remedy for A in the situation where the treatment suffered by him (A) was of a severity which justified the invocation of the Convention.

In many regards, this is a logical extension of the literal application of the Convention. The Court and Commission used a teleological interpretation of the Convention, applying the law to the case in conformity with the spirit of the treaty. An international treaty on the protection and promotion of human rights clearly intends to extend protection to all within its jurisdiction - id est everyone should be entitled to the realisation of the rights articulated in the Convention.

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The position in Scotland

It is perhaps worth briefly noting that Scots law is in a similar position as English law. The right to chastise in Scots law stems from parental powers. As in England, "reasonable chastisement" is permitted. What amounts to "reasonable" is dependant on the facts and circumstances of the case: hitting a nine year old with a belt could be reasonable (B v Harris 1990 SLT 208) but hitting a two year old with the result the child falls over is unreasonable (Peebles v MacPhail 1990 SLT 245). It is conceivable that Scots law could precipitate a similar violation of the Convention: for example, in the case of B v Harris, the bruising left on the child's thigh following the administration of a belt was visible several days later.

The future - implications of A v UK

It is evident that the laws of the United Kingdom were found lacking - there is insufficient judicial control over the physical chastisement of children. The forthcoming report to the United Nations Committee and the entering into force of the Human Rights Act add impetus to the calls for change. Already the Law Commissions within the jurisdiction of the United Kingdom have considered the issue. There are many agents of change, the question is thus when and to what extent will change occur.

The forthcoming report of the United Kingdom to the Committee on the Rights of the Child

The treatment suffered by A would fall within the ambit of the Convention on the Rights of the Child. Accordingly, the United Kingdom would be under an obligation to protect the child. The fact that A's stepfather could legally be found not guilty by a jury clearly indicates that the judicial system failed in this regard, thus the United Kingdom has arguably not met its obligations in terms of this international instrument.

With a child in the United Kingdom being found by the Council of Europe to have suffered from parental chastisement of a severity which breached the Council's Convention on Human Rights, the same child has clearly had his rights enshrined in the Convention on the Rights of the Child (particularly in Articles 19 and 37(a)) violated.

Given that a further United Kingdom report is due to be submitted to the Committee this year, it is likely that the United Kingdom will be expected to demonstrate the measures it has taken to remedy this previously highlighted deficiency in its national laws. It must provide evidence of the steps taken towards reform in accordance with the 1995 recommendations of the Committee (discussed supra). With respect to physical chastisement, at least a narrower, more precise definition of the scope of "reasonable chastisement" will be expected.

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The Human Rights Act 1998

The United Kingdom indicated to the European Court of Human Rights that it was reviewing the matter (Court para 33). With the entry into force of the Human Rights Act, the courts of the United Kingdom come under increasing pressure to uphold the European Convention and act in accordance with the decisions of the European Court, the Commission and the Committee of Ministers. A similar situation should not therefore arise as the national courts will in all future cases have to take into account the judgment of the European Court in this case. Perhaps the high profile media interest in the case will prove the necessary catalyst to elicit a Government response which will ensure that the laws of the United Kingdom are in conformity with not only the European Convention but all binding international obligations.

As matters stand, the onus lies with the national courts to secure the punishment of a parent who chastises his or her child in a manner inconsistent with the European Convention. What is the standard of permissible treatment? The ratio in A v UK does not provide a definitive answer. The national court must take into account factors such as the age, health and size of the child in determining whether any physical punishment exceeds the legal limits. In this respect, it is perhaps unfortunate that the Council of Europe does not include a system akin to that of preliminary rulings under Article 177 of the Treaty of Rome (as amended 1957) whereby the national courts may seek clarification regarding the interpretation and validity of Community Law.

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Reforming the law

In the instant case, the administering of physical chastisement did not precipitate the violation of the Convention. Rather it was the failure of the English legal system to ensure sufficient judicial protection against such abuse. The pertinent law provides criminal and civil law safeguards against assault. Such protection is, however, eroded in respect of children within the home by the defence of reasonable chastisement and the fact that the onus of proof is on the prosecution to prove beyond reasonable doubt that the treatment was not moderate and reasonable in the circumstances.

The Law Commission's Consultation Paper 139 (Consent in the Criminal Law) Part XI Lawful Correction considered the issue of reasonable chastisement. The Commission acknowledged that:

"The English common law provided that while a child remained in the custody of a parent the latter was entitled to administer reasonable chastisement, both in respect of past misconduct or, it seems, threatened future misconduct."(11.1)

In keeping with international obligations, the force used had to be reasonable in the circumstances, with the age and strength of the child being paramount considerations. Following a wide-ranging review which included a comparative analysis, the Law Commission concluded that

"unless any particular technical difficulty is brought to our notice in relation to this common law defence as it now stands, we are likely to have no recommendations for law reform to make in this regard."(11.19)

The Scottish Law Commission also examined the issue in its Report on Family Law (Scot Law Com No 135 (1992)). Under the existing Scots law, the issue of lawful chastisement depended upon the possession of parental or analogous rights and is recognised by statute:

"a parent has a right to administer reasonable corporal punishment to his or her child."(2.67)

The Scottish Law Commission noted that there was a prominent body of opinion in Europe favouring the abolition or restriction of parental chastisement, yet the Houses of Parliament had resisted earlier attempts to alter the law in this respect. Substantial consultation by the Scottish Law Commission found the public split on the appropriate methods of exercising parental discipline (2.72), psychologists in agreement that the negative effects of physical punishment outweigh the positive (2.73-2.76) and a rainbow of views submitted by legal commentators, religious groups, social workers and other interested parties. It was argued by the Scottish Law Commission that neither the European Convention nor the Convention on the Rights of the Child actually outlawed smacking (2.89). In conclusion, the Scottish Law Commission recommended (2.105) that:

"In any proceedings (whether criminal or civil) against a person for striking a child, it should not be a defence that the person struck the child in the purported exercise of any parental right if he or she struck the child

(i) with a stick, belt or other object; or

(ii) in such a way as to cause, or to risk causing, injury; or

(iii) in such a way as to cause, or to risk causing, pain or discomfort lasting more than a very short time."

The Law Reform Commission of Ireland (Report No 45(1994)) recommended a programme of re-education in favour of alternative non-physical forms of discipline (9.214) as a preliminary step to the abolition of the parental right to administer physical chastisement. In such a way, Ireland would have followed the Swedish model.

From the foregoing, it becomes apparent that the potential legislative problems are great: it is difficult to articulate a clause which whilst actionable before the Courts would be acceptable to both Parliament and the public. Any law should be enforceable. Although the Scottish Law Commission's proposal would have been in clear conformity with the UK's international obligations, it was rejected, the topic too emotive and the perceived problems deemed insurmountable by the legislature.

To date, neither the Law Commissions nor the Government have thus been successful attempting to change the law on parental chastisement. There seems to be an official body of opinion which, somewhat erroneously, considers the present legal provisions suffice. That reform is necessary to bring the United Kingdom into conformity with its international obligations is a moot point. Undoubtedly the existing legal research in this area will be drawn upon by the present Government in drafting its legislative response to the case of A v UK and its forthcoming report to the Committee on the Rights of the Child.

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Conclusions

It is clear that the pertinent provisions of English law (as probably Scots law) permit treatment exceeding the minimum level of severity for an invocation of Article 3 of the European Convention to go unchallenged at the national level. Children may thus be subjected to degrading treatment or punishment. The existence of these legal provision calls into question the compliance of the United Kingdom with the provisions of the United Nations Convention on the Rights of the Child. A continuing failure of the United Kingdom to address the issue will inevitably lead to condemnation by the Committee on the Rights of the Child this year.

However, it is perhaps worth remembering that neither the European Court of Human Rights nor the European Commission of Human Rights indicated that physical chastisement of children should be prohibited although this is the case in some member States - since 1979, as mentioned above, physical chastisement of children has been prohibited in Sweden under the Code of Parenthood. Finland, Denmark and Norway are among the States who followed suit. Today, the pressure to prohibit corporal punishment of children extends throughout Europe. Indeed, the Committee of Ministers (of the Council of Europe) in Recommendation R(85)4 urged Member States to "review their legislation on the power to punish children in order to limit or indeed prohibit corporal punishment, even if a violation of such a prohibition does not necessarily entail a criminal penalty". Both the European Court and the European Commission of Human Rights have stopped short of such a statement. In the instant case, the Commission even emphasised (para 55) that "this finding does not mean that Article 3 is to be interpreted as imposing an obligation on States to protect, through their criminal law, against any form of physical rebuke, however mild, by a parent of a child."

Although this case represents a significant advancement in the scope of Article 3 of the Convention, it falls short of indicating that a prohibition on all forms of physical chastisement of children is necessary.⁽⁴⁾ In this respect, the Convention is in conformity with the opinion of the Committee on the Rights of the Child whose main objection to the United Kingdom's laws was the lack of precision on the definition and application of the defence of "reasonable chastisement".

Sparing the rod might be desirable but neither regional nor international law ban the carefully controlled physical chastisement by parents of difficult children. What the law prohibits is the excessive use of force, "excessive" indicated by the infliction of lasting harm (psychological or physical). This is in conformity with the general ethos of human rights: they set out the common standard of achievement for all States, the lowest common denominator of treatment which should be enjoyed by, in this example, children. Accordingly, where a child has been beaten (to a degree sufficient to infringe either Convention), there is a clear duty on the State to provide adequate judicial protection for that child. It is in the provision of such protection that the United Kingdom was found lacking in the instant case.

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Bibliography

Barton, C (1992) "It's OK to belt your kids" New Law Journal 1262

Van Beuren, G (1995) The International Law on the Rights of the Child (Netherlands, Martinus Nijhoff)

Hammarberg, T (1990) "The UN Convention on the Rights of the Child - and How to Make It Work" 12 Human Rights Quarterly 97

Footnotes

(1) A detailed discussion of the Convention is outwith the scope of the present article. See generally, Geraldine Van Beuren The International Law on the Rights of the Child 1995 Martinus Nijhoff and New York Law School Journal of Human Rights Volume VII 1989 (special volume).

(2) The European Convention on Human Rights was not initially part of the domestic laws of the United Kingdom. However, in accordance with the United Kingdom's declaration under Article 25 thereof, individuals enjoy the right to bring applications against the United Kingdom alleging infringement of any of their human rights as enshrined in the Convention.

(3) In the Costello-Roberts case, the Court did express misgivings that the punishment was automatic (if the child was given five demerit points) and that it was not administered until some three days after the fifth demerit point, thereby heightening the sense of fear on the part of Jeremy Costello-Roberts.

(4) In X, Y & Z v Sweden (1982) 5 EHRR 147, the Commission concluded that the Swedish prohibition on exposing children to physical punishment (adopted 1979) was not a violation of Article 8 of the European Convention - "Everyone has the right to respect for his private and family life, his home and correspondence" - and was thus in conformity with the Convention. Although this case could perhaps be considered a positive step, as subsequent case law has shown, the reverse situation (permitting parental chastisement) does not ipso fact constitute a violation of the Convention.