The present judgment is subject to editorial revision before its reproduction in final form in Reportsof Judgments and Decisions 1998. These reports are obtainable from the publisher CarlHeymanns Verlag KG (Luxemburger Straße 449, D-50939 Köln), who will also arrange for theirdistribution in association with the agents for certain countries as listed overleaf.List of Agents Belgium: Etablissements Emile Bruylant (rue de la Régence 67, B-1000 Bruxelles)
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SUMMARY[fn1] Judgment delivered by a Chamber
United Kingdom State responsibility for beating of child by stepfather
I. ARTICLE 3 OF THE CONVENTION
Beating with garden cane applied with considerable force on more than one occasion reaches level of severityprohibited by Article 3.
States required to take measures designed to ensure individuals not ill-treated in breach of Article 3 by otherprivate individuals children entitled to protection, through effective deterrence, against such treatment.
Application of defence of "reasonable chastisement" did not provide adequate protection.
Conclusion: violation (unanimously).
II. ARTICLE 8 OF THE CONVENTION
In view of finding under Article 3, not necessary to examine.
Conclusion: not necessary to examine complaint (unanimously).
III. ARTICLES 13 AND 14 OF THE CONVENTION
Not pursued.
Conclusion: not necessary to examine complaint (unanimously).
IV. ARTICLE 50 OF THE CONVENTION
A. Non-pecuniary damage: sum awarded.
B. Legal costs and expenses: awarded on equitable basis.
Conclusion: respondent State to pay specified sums to applicant (unanimously).
COURTS CASE-LAW REFERRED TO 26.3.1985, X and Y v. the Netherlands; 25.3.1993, Costello-Roberts v. the United Kingdom; 22.10.1996, Stubbingsand Others v. the United Kingdom; 25.2.1997, Findlay v. the United Kingdom; 29.4.1997, H.L.R. v. France;24.9.1997, Coyne v. the United Kingdom
In the case of A. v. the United Kingdom[fn2] ,
The European Court of Human Rights, sitting, in accordance with Article 43 of the Convention forthe Protection of Human Rights and Fundamental Freedoms ("the Convention") and the relevantprovisions of Rules of Court A[fn3] , as a Chamber composed of the following judges:
Mr R. Bernhardt, President,
Mr L.-E. Pettiti,
Mr C. Russo,
Mrs E. Palm,
Sir John Freeland,
Mr P. Kuris,
Mr J. Casadevall,
Mr P. van Dijk,
Mr V. Toumanov,and also of Mr H. Petzold, Registrar, and Mr P.J. Mahoney, Deputy Registrar,
Having deliberated in private on 27 June and 26 August 1998,
Delivers the following judgment, which was adopted on the last-mentioned date:
PROCEDURE
1. The case was referred to the Court by the European Commission of Human Rights ("theCommission") on 27 October 1997, within the three-month period laid down by Article 32 § 1 andArticle 47 of the Convention. It originated in an application (no. 25599/94) against the UnitedKingdom of Great Britain and Northern Ireland lodged with the Commission under Article 25 by aBritish national, "A.", on 15 July 1994. The applicant asked the Court not to reveal his identity.
The Commissions request referred to Articles 44 and 48 of the Convention and the declarationwhereby the United Kingdom recognised the compulsory jurisdiction of the Court (Article 46). Theobject of the
Commissions request was to obtain a decision as to whether the facts of the case disclosed abreach by the respondent State of its obligations under Articles 3, 8, 13 and 14 of the Convention.
2. In response to the enquiry made in accordance with Rule 33 § 3 (d) of Rules of Court A, theapplicant stated that he wished to take part in the proceedings and designated the lawyers whowould represent him (Rule 30).
3. The Chamber to be constituted included ex officio Sir John Freeland, the elected judge ofBritish nationality (Article 43 of the Convention), and Mr R. Ryssdal, the President of the Court(Rule 21 § 4 (b)). On 28 November 1997, in the presence of the Registrar, Mr Ryssdal drew by lotthe names of the other seven members, namely Mr L.-E. Pettiti, Mr C. Russo, Mrs E. Palm,Mr J. Makarczyk, Mr P. Kuris, Mr J. Casadevall and Mr V. Toumanov (Article 43 in fine of theConvention and Rule 21 § 5). Subsequently Mr R. Bernhardt, who had been elected President ofthe Court, replaced Mr Ryssdal, who had died (Rule 21 § 6, second sub-paragraph).
4. As President of the Chamber at that time (Rule 21 § 6), Mr Ryssdal, acting through theRegistrar, consulted the Agent of the United Kingdom Government ("the Government"), theapplicants lawyer and the Delegate of the Commission on the organisation of the proceedings(Rules 37 § 1 and 38). Pursuant to the order made in consequence, the Registrar received theapplicants and the Governments memorials on 27 February and 4 March 1998 respectively.
5. Mr Makarczyk was unable to take part in the further consideration of the case and wastherefore replaced by Mr P. van Dijk, substitute judge (Rules 22 § 1 and 24 § 1).
6. In accordance with the Presidents decision, the hearing took place in public in the HumanRights Building, Strasbourg, on 22 June 1998. The Court had held a preparatory meetingbeforehand.
There appeared before the Court:
(a) for the Government
Mr M. EATON, Foreign and Commonwealth Office, Agent,
Mr D. PANNICK QC, Barrister-at-Law,
Mr M. SHAW, Barrister-at-Law, Counsel,
Ms S. RYAN, Department of Health,
Ms C. RICCARDI, Department of Health, Advisers;(b) for the Commission
Mr N. BRATZA, Delegate;(c) for the applicant
Mr A. LEVY QC, Barrister-at-Law,
Mr T. EICKE, Barrister-at-Law Counsel,
Mr M. GARDNER, Solicitor,
Mr P. NEWELL, Adviser.The Court heard addresses by Mr Bratza, Mr Levy and Mr Pannick.
AS TO THE FACTS
I. THE CIRCUMSTANCES OF THE CASE 7. The applicant is a British citizen, born in 1984.
In May 1990 he and his brother were placed on the local Child Protection Register because of"known physical abuse". The co-habitee of the boys mother was given a police caution after headmitted hitting A. with a cane. Both boys were removed from the Child Protection Register inNovember 1991. The co-habitee subsequently married the applicants mother and became hisstepfather.
8. In February 1993, the head teacher at A.s school reported to the local Social ServicesDepartment that A.s brother had disclosed that A. was being hit with a stick by his stepfather. Thestepfather was arrested on 5 February 1993 and released on bail the next day.
9. On 5 February 1993 the applicant was examined by a consultant paediatrician, who found thefollowing marks on his body, inter alia: (1) a fresh red 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) adouble linear bruise on the back of the left calf, consistent with two separate blows given some timebefore the first injury; (3) two lines on the back of the left thigh, probably caused by two blowsinflicted one or two days previously; (4) three linear bruises on the right bottom, consistent withthree blows, possibly given at different times and up to one week old; (5) a fading linear bruise,probably several days old.
The paediatrician considered that the bruising was consistent with the use of a garden cane, appliedwith considerable force, on more than one occasion.
10. The stepfather was charged with assault occasioning actual bodily harm and tried in February1994. It was not disputed by the defence that the stepfather had caned the boy on a number ofoccasions, but it was argued that this had been necessary and reasonable since A. was a difficultboy who did not respond to parental or school discipline.
In summing-up, the judge advised the jury on the law as follows:
"... What is it the prosecution must prove? If a man deliberately and unjustifiably hits another and causes some bodily injury, bruising or swelling will do, he is guilty of actual bodily harm. What does unjustifiably mean in the context of this case? 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 the manner, the instrument and the quantity of it. Or, put another way, reasonable. It is not for the defendant to prove it was lawful correction. It is for the prosecution to prove it was not.11. The jury found by a majority verdict that the applicants stepfather was not guilty of assaultoccasioning actual bodily harm.This case is not about whether you should punish a very difficult boy. It is about whether what was done here was reasonable or not and you must judge that ... .
II. RELEVANT DOMESTIC LAW
A. Criminal sanctions against the assault of children
12. The applicants stepfather was charged with "assault occasioning actual bodily harm" contraryto section 47 of the Offences against the Person Act 1861, as amended. An "assault", for thepurposes of this section, includes an act by which a person intentionally or recklessly inflictspersonal violence upon another. "Actual bodily harm" includes any hurt or injury calculated tointerfere with the health or comfort of the victim; the hurt or injury need not be permanent but mustbe more than transitory or trifling. The maximum penalty on conviction is five years imprisonment.
13. In addition, it is an offence under section 1(1) of the Children and Young Persons Act 1933 toassault or ill-treat a child in a manner likely to cause him unnecessary suffering or injury to health.The maximum penalty on conviction is ten years imprisonment.
14. In criminal proceedings for the assault of a child, the burden of proof is on the prosecution tosatisfy the jury, beyond a reasonable doubt, inter alia that the assault did not constitute lawfulpunishment.
Parents or other persons in loco parentis are protected by the law if they administer punishmentwhich is moderate and reasonable in the circumstances. The concept of "reasonableness" permitsthe courts to apply standards prevailing in contemporary society with regard to the physicalpunishment of children.
Corporal punishment of a child by a teacher cannot be justified if the punishment is inhuman ordegrading. In determining whether punishment is inhuman or degrading, regard is to be had to "allthe circumstances of the case, including the reason for giving it, how soon after the event it is given,its nature, the manner and circumstances in which it is given, the persons involved and its mental andphysical effects" (section 47(1)(a) and (b) of the Education (No. 2) Act 1986, as amended bysection 293 of the Education Act 1993).
B. Civil remedies for assault
15. Physical assault is actionable as a form of trespass to the person, giving the aggrieved party theright to recovery of damages. In civil proceedings for assault, whilst the elements of the tort are thesame as those of the criminal offence, the burden of proof of establishing that punishment wasreasonable is on the defendant, on the balance of probabilities.
PROCEEDINGS BEFORE THE COMMISSION
16. A. applied to the Commission on 15 July 1994. He complained that the State had failed toprotect him from ill-treatment by his step-father, in violation of Articles 3 and/or 8 of theConvention; that he had been denied a remedy for these complaints in violation of Article 13; andthat the domestic law on assault discriminated against children, in violation of Article 14 inconjunction with Articles 3 and 8.
17. The Commission declared the application (no. 25599/94) admissible on 9 September 1996. Inits report of 18 September 1997 (Article 31), it expressed the opinion that there had been aviolation of Article 3 (unanimously); that it was not necessary to consider the complaint underArticle 8 (sixteen votes to one); that there had been no violation of Article 13 (unanimously) and thatit was not necessary to consider the complaint under Article 14 in conjunction with Articles 3 and 8.The full text of the Commissions opinion and of the two separate opinions contained in the report isreproduced as an annex to this judgment[fn4] .
FINAL SUBMISSIONS TO THE COURT
18. In their memorial and at the hearing, the Government accepted the reasoning and the conclusionof the Commission that there had been a violation of Article 3. However, they asked the Court toconfine itself to considering the facts of the case without making any general statement about thecorporal punishment of children.
The applicant asked the Court to find violations of Articles 3 and 8 of the Convention and toconfirm that national law should not condone directly or by implication any level of deliberateviolence to children.
AS TO THE LAW
I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION
19. The applicant asked the Court to find a violation of Article 3 of the Convention, whichprovides:
"No one shall be subjected to torture or to inhuman or degrading treatment or punishment."
Both the Commission and the Government accepted that there had been a violation of Article 3.Despite this, the Court considers it necessary itself to examine the issues in this case (see, forexample, the Findlay v. the United Kingdom judgment of 25 February 1997, Reports ofJudgments and Decisions 1997-I, p. 263). As is its usual practice, this examination will be limitedto the specific facts of the case before it.
20. The Court recalls that ill-treatment must attain a minimum level of severity if it is to fall within thescope of Article 3. The assessment of this minimum is relative: it depends on all the circumstances ofthe case, such as the nature and context of the treatment, its duration, its physical and mental effectsand, in some instances, the sex, age and state of health of the victim (see the Costello-Roberts v. theUnited Kingdom judgment of 25 March 1993, Series A no. 247-C, p. 59 § 30).
21. The Court recalls that the applicant, who was then nine years old, was found by the consultantpaediatrician who examined him to have been beaten with a garden cane which had been appliedwith considerable force on more than one occasion (see paragraph 9 above).
The Court considers that treatment of this kind reaches the level of severity prohibited by Article 3.
22. It remains to be determined whether the State should be held responsible, under Article 3, forthe beating of the applicant by his stepfather.
The Court considers that the obligation on the High Contracting Parties under Article 1 of theConvention to secure to everyone within their jurisdiction the rights and freedoms defined in theConvention, taken together with Article 3, requires States to take measures designed to ensure thatindividuals within their jurisdiction are not subjected to torture or inhuman or degrading treatment orpunishment, 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 andother vulnerable individuals, in particular, are entitled to State protection, in the form of effectivedeterrence, against such serious breaches of personal integrity (see, mutatis mutandis, the X and Yv. the Netherlands judgment of 26 March 1985, Series A no. 91, pp. 11-13, §§ 21-27, theStubbings 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 and37).23. The Court recalls that under English law it is a defence to a charge of assault on a child that thetreatment in question amounted to "reasonable chastisement" (see paragraph 14 above). The burdenof proof is on the prosecution to establish beyond reasonable doubt that the assault went beyondthe limits of lawful punishment. In the present case, despite the fact that the applicant had beensubjected to treatment of sufficient severity to fall within the scope of Article 3, the jury acquitted hisstepfather, who had administered the treatment (see paragraphs 10-11 above).
24. In the Courts view, the law did not provide adequate protection to the applicant againsttreatment or punishment contrary to Article 3. Indeed, the Government have accepted that this lawcurrently fails to provide adequate protection to children and should be amended.
In the circumstances of the present case, the failure to provide adequate protection constitutes aviolation of Article 3 of the Convention.
II. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION
25. Article 8 of the Convention provides as follows:
"1. Everyone has the right to respect for his private life26. The Commission concluded that, given its finding of a violation of Article 3, it was notnecessary to consider the issues under Article 8. The Government asked the Court also to take thisapproach.2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others."
27. In his memorial to the Court, the applicant submitted that, if the Court were to find a violationof Article 3, he would not pursue his claim under Article 8. However, at the hearing before theCourt, he contended that, in the light of the Governments memorial and their proposals forlegislative change, it was necessary for the Court to rule under Article 8 in order to provideguidance to the Government and protection for children against all forms of deliberate violence.
28. The Court recalls that it has found a violation of Article 3 in the present case. In thesecircumstances it is not necessary to examine whether the inadequacy of the legal protectionprovided to A. against the ill-treatment that he suffered also breached his right to respect for privatelife under Article 8.
III. ALLEGED VIOLATIONS OF ARTICLES 13 AND 14 OF THE CONVENTION
29. The applicant accepted the Commissions finding of no violation of Article 13 of theConvention and did not pursue his claim under Article 14 of the Convention taken in conjunctionwith Articles 3 and/or 8.
30. In these circumstances, it is not necessary for the Court to consider these complaints.
IV. APPLICATION OF ARTICLE 50 OF THE CONVENTION
31. The applicant claimed just satisfaction pursuant to Article 50 of the Convention, whichprovides:
"If the Court finds that a decision or a measure taken by a legal authority or any other authority of a High Contracting Party is completely or partially in conflict with the obligations arising from the ... Convention, and if the internal law of the said Party allows only partial reparation to be made for the consequences of this decision or measure, the decision of the Court shall, if necessary, afford just satisfaction to the injured party."A. Non-pecuniary damage32. The applicant sought compensation for the grave physical abuse which he had suffered at thehands of his stepfather. He pointed out that, because of the inadequacy of English law, he had alsohad to endure the trauma of criminal proceedings which resulted in the acquittal of his stepfather. Atthe hearing before the Court, his representative suggested that 15,000 pounds sterling ("GBP")would be an appropriate sum by way of compensation.
33. Prior to the hearing before the Court, the Government had informed the applicant that theyaccepted the Commissions finding of violation of Article 3 and undertook to amend domestic law.In addition, they had offered the applicant an ex gratia payment of GBP 10,000. At the hearingbefore the Court, however, they submitted that, in the light of their undertaking to amend the law, afinding of a breach would be adequate just satisfaction.
34. The Court considers that, in the circumstances of the case, the applicant should be awardedGBP 10,000 in respect of compensation for non-pecuniary damage.
B. Costs and expenses
35. The applicant claimed legal costs and expenses totalling GBP 48,450.
36. The Government submitted that, in view of their admission of a violation of Article 3 and offerof settlement, the applicant should not receive any legal costs in respect of the proceedings beforethe Court. In any event, they considered that the hourly rates charged by his representatives and thenumber of hours charged were excessive and should be reduced.
37. In view of the limited number of issues raised by the case and the absence of any detailedbreakdown of the costs claimed, the Court considers the sum requested by the applicant to beexcessive (see, for example, the Coyne v. the United Kingdom judgment of 24 September 1997,Reports 1997-V, p. 1856, § 66). Making its assessment on an equitable basis, it awards GBP20,000 in respect of costs and expenses, less the amounts received in legal aid from the Council ofEurope, but together with any value-added tax which may be payable.
C. Default interest
38. According to the information available to the Court, the statutory rate of interest applicable inthe United Kingdom at the date of adoption of the present judgment is 7.5% per annum.
FOR THESE REASONS, THE COURT UNANIMOUSLY
1. Holds that there has been a violation of Article 3 of the Convention;Done in English and in French, and delivered at a public hearing in the Human Rights Building,Strasbourg, on 23 September 1998.2. Holds that it is not necessary to consider the applicants complaints under Articles 8, 13 or 14 of the Convention;
3. Holds
(a) that the respondent State is to pay the applicant, within three months, in respect of non-pecuniary damage, 10,000 (ten thousand) pounds sterling;
(b) that the respondent State is to pay the applicant, within three months, in respect of legal costs and expenses, 20,000 (twenty thousand) pounds sterling, less 35,264 (thirty-five thousand, two hundred and sixty-four) French francs to be converted into pounds sterling at the rate applicable on the date of delivery of the present judgment, together with any value-added tax which may be payable; and
(c) that simple interest at an annual rate of 7.5% shall be payable on those sums from the expiry of the above-mentioned three months until settlement.
Signed: Rudolf BernhardtPresident
Signed: Herbert PetzoldRegistrar
Footnotes