1. Introduction
In the past centuries, it was acceptable for adults, predominantly women and slaves, to be corporally punished. This is no longer the case today. Paradoxically the same cannot be said of children who are still being corporally punished throughout the world, despite being more vulnerable.
The UN Committee on the Rights of the Child (the Committee) defines corporal punishment as “any punishment in which physical force is used and intended to cause some degree of pain or discomfort, however light”.[1] Although there is no express prohibition of corporal punishment of children in international law, the Committee affirmed in its General Comment No. 8 that the UN Convention on the Rights of the Child [2] (CRC) prohibits all forms of corporal punishment against children through a combined reading of Articles 37, 19 and Article 28(2).[3] This article will discuss this assertion in light of case law.
2. Convention on the Rights of the Child and Corporal Punishment
Article 19(1) provides that:
States Parties shall take all appropriate legislative, administrative, social and educational measures to protect the child from all [4] 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 the child.
Article 37(a) states that:
States Parties shall ensure that no child shall be subjected to torture or other cruel, inhuman or degrading treatment or punishment.…
Article 28(2) stipulates that:
States Parties shall take all appropriate measures to ensure that school discipline is administered in a manner consistent with the child’s human dignity and in conformity with the present Convention.
3. Case law on Corporal Punishment
There are several spheres in which corporal punishment of children exists: they can be punished by the state, in education or in the home and in alternative care. A high number of countries have banned corporal punishment as criminal sentences but hardly any have banned it in the home.[5]
3.1. Corporal punishment by the State
The first landmark case decided by the European Court of Human Rights (ECtHR) on corporal punishment was the case of Tyrer v United Kingdom.[6] It was decided before the CRC but created the foundation upon which all subsequent case law of the Court is based. The applicant, Tyrer, a 15-year-old boy was sentenced to three strokes of birch for unlawful assault of another pupil at his school. The punishment was administered on his bare bottom by a policeman in front of his father, two other policemen and a doctor. Tyrer argued this was a violation of his right under Article 3 of the European Convention on Human Rights[7] (ECHR) which stipulates that “[n]o one shall be subjected to torture or to inhuman or degrading treatment or punishment”.
The Court ruled out the possibility of the punishment amounting to torture or inhuman punishment as it did not reach the required level of severity.[8] Thus, the Court considered whether the punishment was degrading. It noted that Tyrer was treated as an object of the State and that by sentencing him to judicial corporal punishment, the State went against the very nature of Article 3 of the ECHR, which is to protect a person’s dignity and physical integrity.[9] Furthermore, there were several weeks between his sentencing and the date when the punishment was administered and on the day itself, Tyrer had to wait for hours in the police station beforehand. Hence he “was subjected to the mental anguish of anticipating the violence he was to have inflicted on him”.[10] The Court also said that it was sufficient for Tyrer to have been humiliated about the execution of the punishment “in his own eyes, even if not in the eyes of others”.[11] The Court found that the punishment was degrading and in violation of Article 3 of the ECHR.
The Namibian Supreme Court[12] was asked to deliberate whether provisions allowing corporal punishment of children as a judicial punishment and in schools were contrary to Article 8 of the Namibian Constitution which stipulates that:
(1) The dignity of all persons shall be inviolable.
(2) (a) In any judicial proceedings or in other proceedings before any organ of the State, and during the enforcement of a penalty, respect for human dignity shall be guaranteed.
(b) No persons shall be subject to torture or to cruel, inhuman or degrading treatment or punishment.
The judge considered why the same punishment which would be unacceptable for an adult was deemed acceptable for a child and concluded that it is “insufficient to convert punishment which is degrading or inhuman for adults into punishment which is not so degrading and inhuman in the case of juveniles”[13] and declared corporal punishment in conflict with the Constitution. This is an interesting reasoning as the judge compared and applied the same principles to a child as he would to an adult, which is a different approach than that of the ECtHR’s in Tyrer.
3.2. Corporal punishment in Education
Corporal punishment in schools was considered by the ECtHR in the case of Costello-Roberts v United Kingdom,[14] in which a seven-year-old boy was slippered by the headmaster of his school for his bad behaviour. Costello-Roberts argued that there had been a violation of his rights under Article 3 of the ECHR. The Government sought to deny its jurisdiction in this case since the school was a private school and argued that it had no control over it and that it had prohibited the use of non-moderate or reasonable corporal punishment. The Court said that states have an obligation to secure the rights to “everyone within their jurisdiction” under Article 1 of the ECHR and that by applying the principle of due diligence, they should read Article 3 in light of Article 1.
The Court also acknowledged that under Article 2 of the First Protocol to the ECHR, States have an obligation to secure the right to education to children. The Court went further by taking into account the CRC and asserts that the school’s discipline system falls within the scope of the right to education pursuant to Article 28(2) of the CRC which requires discipline to be administered in “a manner consistent with the child’s dignity”.[15] Thus, by applying this standard to the ECHR, the Court has shown that the concept of education in the ECHR must be dynamically interpreted in light of the standards of the CRC, which reflects international consensus. Nevertheless, the Court did not find a violation of Article 3 of the ECHR because the punishment did not attain the minimum threshold for it to be degrading. I am, however, convinced that a violation would have been found if the case were to have happened today.
The South African Supreme Court in the Christian Education Case[16] clearly stated that Articles 37 and 28(2) of the CRC inter alia “require the abolition of corporal punishment in schools” because it subjects children to violence and degrading punishment.[17] This case concerned Christian parents seeking to challenge the validity of legislation prohibiting corporal punishment in schools on the basis that it violates their freedom of religion and that they should be free to send their children to independent schools where their children are corporally punished in line with their religious convictions.
The judge in this case sought to balance the freedom of religion of the parents with the best interests of the child which he said is of paramount importance. He concluded that the best interests of the child must be protected and considered the jurisprudence of the ECtHR as part of evidence of an international consensus that punishment can become degrading when it reaches a certain level of severity.[18] He also stated that these measures were enacted by Parliament “to establish uniform education standards for the country… [and] to make a radical break with the authoritarian past”.[19] The aim is also “to promote respect for the dignity and emotional integrity of all children”.[20] Here we can see that children’s rights are being revised in light of modern conditions. The Christian Education Case offers a more modern approach and finds that corporal punishment must be prohibited even if it does conflict with certain religious convictions.
3.3. Corporal punishment in the Home
In the case of A v United Kingdom,[21] the ECtHR had to consider whether the fact that a nine-year-old boy who was regularly hit by his stepfather with a garden cane causing him bruises amounted to a violation of Article 3 of the ECHR. Applying the test laid down in Tyrer, the Court found the punishment did reach the required minimum level of severity to fall within the ambit of Article 3.[22] The Government conceded to this finding but asked the Court not to make any “general statements about corporal punishment of children [in the UK]”.[23]
The Court then had to consider whether the State could be held responsible for beatings carried out by the stepfather. The Court applied the principle of due diligence regarding Article 1 of the ECHR, as it did in Costello-Roberts, adding that the State has a positive obligation to take measures to avoid individuals being subjected to ill-treatment prohibited by Article 3, including by private bodies. In addition, children should be entitled to protection as an effective deterrent to avoid breaches of their personal integrity. The Court made reference to Article 19 and 37 of the CRC.[24] It held that English law did not provide adequate protection to A and this despite his treatment being severe enough to fall within the ambit of Article 3.
4. Conclusion
It is clear that international law, and in particular the CRC, prohibits corporal punishment of children by implication. This is especially important because the CRC is the most widely ratified human rights treaty in the world (with ratifications from all UN members with the exception of the USA and Somalia). These cases demonstrate that children’s rights in general have been taken more seriously over the years and the breakthrough judgment of the case A v UK resulted in the protection of children from corporal punishment in the private sphere. This is not only ground-breaking for children but for human rights in general. Human rights law is becoming progressively more horizontal. States are now being penalised for not protecting the rights of individuals against other private parties. However, as always, this is great in theory but there is still a long way to go for corporal punishment to be eradicated in practice.
By Doriane Hardy (candidate for an LLM in European Law)
[1] CRC Committee, General Comment No. 8: The right of the child to protection from corporal punishment and other cruel or degrading forms of punishment (arts. 19; 28, para. 2; and 37, inter alia), UN Doc. , 2 March 2007, §11
[2] UN Convention on the Rights of Child, 20 November 1989
[3] §§ 18-20
[4] Emphasis added
[5] Global Initiative to End All Corporal Punishment of Children, “Ending legalised violence against children Global Report 2012”, http://www.endcorporalpunishment.org/pages/pdfs/reports/GlobalReport2012.pdf, accessed on the 8 December 2013, p. 7
[6] Application no 5856/72, 25 April 1978
[7] Convention for the Protection of Human Rights and Fundamental Freedoms, Rome, 4 November 1950
[8] §29
[9] Ibid §33
[10] Ibid §33
[11] Ibid §32
[12] Ex Parte Attorney General, In Re Corporal Punishment by Organs of the State, decision of the Supreme Court of Namibia, SA 14/90, 5 April 1991
[13] Ibid §§ 33-4
[14] Application no 13134/87, 25 March 1993
[15] Ibid §§ 25-27
[16] [2001] 1 LRC 441
[17] Ibid §13
[18] Ibid §§43-45
[19] Ibid §50
[20] Ibid §50
[21] Application no 25599/94, 23 September 1998
[22] Ibid §§20-21
[23] Ibid §18
[24] Ibid §22
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