EUROPEAN COMMISSION OF HUMAN RIGHTS

                   Application No. 25599/94

                               A

                            against

                      the United Kingdom

                   REPORT OF THE COMMISSION

                (adopted on 18 September 1997)

                       TABLE OF CONTENTS

                                                          Page

I.   INTRODUCTION

     (paras. 1-16). . . . . . . . . . . . . . . . . . . . . .1

     A.   The application

          (paras. 2-4). . . . . . . . . . . . . . . . . . . .1

     B.   The proceedings

          (paras. 5-11) . . . . . . . . . . . . . . . . . . .1

     C.   The present Report

          (paras. 12-16). . . . . . . . . . . . . . . . . . .2

II.  ESTABLISHMENT OF THE FACTS

     (paras. 17-26) . . . . . . . . . . . . . . . . . . . . .3

     A.   The particular circumstances of the case

          (paras. 17-19). . . . . . . . . . . . . . . . . . .3

     B.   Relevant domestic law and practice

          (paras. 20-26). . . . . . . . . . . . . . . . . . .6

III. OPINION OF THE COMMISSION

     (paras. 27-75) . . . . . . . . . . . . . . . . . . . . .8

     A.   Complaints declared admissible

          (para. 27). . . . . . . . . . . . . . . . . . . . .8

     B.   Points at issue

          (para. 28). . . . . . . . . . . . . . . . . . . . .8

     C.   As regards Article 3 of the Convention

          (paras. 29-56). . . . . . . . . . . . . . . . . . .8

          CONCLUSION

          (para. 56). . . . . . . . . . . . . . . . . . . . 15

     D.   As regards Article 8 of the Convention

          (paras. 57-61). . . . . . . . . . . . . . . . . . 15

          CONCLUSION

          (para. 61). . . . . . . . . . . . . . . . . . . . 16

     E.   As regards Article 13 of the Convention

          (paras. 62-67). . . . . . . . . . . . . . . . . . 16

          CONCLUSION

          (para. 67). . . . . . . . . . . . . . . . . . . . 17

                       TABLE OF CONTENTS

                                                          Page

     F.   As regards Article 14 of the Convention,

          taken together with Articles 3 and 8 of the Convention

          (paras. 68-71). . . . . . . . . . . . . . . . . . 17

          CONCLUSION

          (para. 71). . . . . . . . . . . . . . . . . . . . 17

     G.   Recapitulation

          (paras. 72-75). . . . . . . . . . . . . . . . . . 17

CONCURRING OPINION OF Mr. L. LOUCAIDES. . . . . . . . . . . 19

CONCURRING OPINION OF Mr. E.A. ALKEMA . . . . . . . . . . . 20

APPENDIX: DECISION OF THE COMMISSION AS TO THE

          ADMISSIBILITY OF THE APPLICATION. . . . . . . . . 21

I.   INTRODUCTION

1.   The following is an outline of the case as submitted to the

European Commission of Human Rights, and of the procedure before the

Commission.

A.   The application

2.   The applicant is a United Kingdom citizen, born in 1984.  He was

represented before the Commission by Mr. M. Gardner, solicitor, of

Messrs. Morgan Bruce Binks Stern, London.

3.   The application is directed against the United Kingdom.  The

respondent Government were represented by their Agent,

Mr. Martin Eaton, of the Foreign and Commonwealth Office, London.

4.   The case concerns the corporal punishment of the applicant by his

stepfather.  The applicant invokes Articles 3, 8, 13 and 14 of the

Convention.

B.   The proceedings

5.   The application was introduced on 15 July 1994 by the applicant

and his father and registered on 7 November 1994.

6.   On 26 June 1995 the Commission decided, pursuant to Rule 48

para. 2 (b) of its Rules of Procedure, to give notice of the

application to the respondent Government and to invite the parties to

submit written observations on its admissibility and merits.

7.   The Government's observations were submitted on 12 October 1995

after an extension of the time-limit fixed for this purpose.  The

applicants replied on 29 December 1995 after an extension of the

time-limit.  On 5 December 1995, the Commission granted the applicants

legal aid for the representation of their case.

8.   On 13 May 1996 the Commission decided to hold a hearing of the

parties.  The hearing was held on 9 September 1996.  The Government

were represented by MM. Martin R. Eaton, Agent of the Government, David

Pannick, QC and Mark Shaw, Counsel, Ms. Caroline Price, Adviser, Home

Office, Ms. Sue Ryan and Ms. Sue Ball, Advisers, Department of Health

and Ms. Betty Moxon, Adviser, Home Office. The applicants were

represented by MM. Allan Levy, QC and Mr. Peter Duffy, Counsel, Michael

Gardner, Solicitor, Peter Newell, Adviser and Nicholas Grief, Pupil

Barrister.

9.   On 9 September 1996 the Commission declared the application

admissible to the extent that it was brought by the applicant, and

inadmissible to the extent that it was brought by the applicant's

father.

10.  The text of the Commission's decision on admissibility was sent

to the parties on 18 September 1996 and they were invited to submit

such further information or observations on the merits as they wished.

The applicant submitted observations on 21 October 1996.

No observations were submitted by the Government.

11.  After declaring the case admissible, the Commission, acting in

accordance with Article 28 para. 1 (b) of the Convention, also placed

itself at the disposal of the parties with a view to securing a

friendly settlement.  In the light of the parties' reaction, the

Commission now finds that there is no basis on which such a settlement

can be effected.

C.   The present Report

12.  The present Report has been drawn up by the Commission in

pursuance of Article 31 of the Convention and after deliberations and

votes, the following members being present:

          Mr.  S. TRECHSEL, President

          Mrs. G.H. THUNE

          Mrs. J. LIDDY

          MM.  H. DANELIUS

               L. LOUCAIDES

               M.P. PELLONPÄÄ

               M.A. NOWICKI

               I. CABRAL BARRETO

               B. CONFORTI

               N. BRATZA

               I. BÉKÉS

               J. MUCHA

               D. SVÁBY

               A. PERENIC

               P. LORENZEN

               K. HERNDL

               E.A. ALKEMA

13.  The text of this Report was adopted on 18 September 1997 by the

Commission and is now transmitted to the Committee of Ministers of the

Council of Europe, in accordance with Article 31 para. 2 of the

Convention.

14.  The purpose of the Report, pursuant to Article 31 of the

Convention, is:

     (i)  to establish the facts, and

     (ii) to state an opinion as to whether the facts found disclose

          a breach by the State concerned of its obligations under

          the Convention.

15.  The Commission's decision on the admissibility of the application

is annexed hereto.

16.  The full text of the parties' submissions, together with the

documents lodged as exhibits, are held in the archives of the

Commission.

II.  ESTABLISHMENT OF THE FACTS

A.   The particular circumstances of the case

17.  The applicant and his brother were placed on the local Child

Protection Register in May 1990.  The applicant was put on the Register

because of "known physical abuse".  After the co-habitee of the

applicant's mother admitted hitting the applicant with a cane, he was

given a police caution.  Both boys were removed from the Child

Protection Register in November 1991.  The co-habitee subsequently

married the applicant's mother and became his stepfather.

18.  In February 1993, the headteacher at the applicant's school

reported to the local Social Services Department that the applicant's

brother had disclosed that the applicant was being hit with a stick by

his stepfather.  The stepfather was arrested on 5 February 1993.  He

was released on bail the next day.

19.  The stepfather was charged with assault occasioning actual bodily

harm and tried in February 1994.  The judge's summing-up refers to the

evidence and the relevant issues 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.

     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...

     ... What are the two arguments put before you?  The prosecution

     say this boy was caned.  He was caned hard as is evidenced, they

     say, by the bruises.  That it occurred over the period of a week

     before his examination on 5 February of last year.  They say on

     several occasions.  They say never in front of the boy's mother.

     They say it was excessive, no matter how difficult a nine year

     old was and that it was not lawful correction.  That is their

     case.

     The defence say here was a boy who on all accounts was very, very

     difficult to handle.  He would not respond to school discipline.

     He was not helped by ... Doctor B.  He would not respond to

     anything that the social services could do and he could not be

     controlled at home. They do not deny, effectively, the repeated

     caning.  They say it was necessary, justified and reasonable and

     he may have bruised more easily because of the drugs he was

     prescribed for asthma or because he simply bruised more easily.

     Those are the two arguments to consider, condensed I hope, to the

     minimum.

     What was the evidence for the prosecution first of all?  On

     5 February last year [the applicant] was examined by an

     experienced consultant paediatrician at the ... Hospital ...

     Doctor V.  She noticed a number of bruises on his body.  You now

     have a photocopy of that diagram that she drew at the time

     putting them actually on the body...

     First she referred to a fresh red linear bruise on the back of

     the right thigh.  She thought that was a single blow.  She

     described the blood being squeezed out of the capillaries, do you

     remember, to cause those two lines on either side.  She thought

     it was consistent with a blow from a garden cane that we have

     heard about and she thought it was an injury which occurred

     within twenty-four hours of that examination on the 5th but she

     said it is very difficult to be sure and to estimate.  She could

     be out on that.

     The second injury that she saw which you may think relevant was

     a double bruise on the back of the left calf, also linear.  She

     thought that looked a little bit older than the first one.  She

     said it showed two separate linear lines and that meant two

     separate blows.  I am not going to remind you of the third injury

     she referred to.  If you think they are important, obviously you

     will consider them but they were the irregular brownish bruises

     that did not fit in with the caning.  At the very most and there

     is no evidence of it, poking with the end of the cane.  No one

     suggested that happened in this case.

     The fourth injury that she described two feint lines on the back

     of the left thigh.  They looked similar to the other in type.

     Two blows she thought had caused them.  'I think they were

     one-two days old.'

     The fifth injury then.  Linear bruises on the right bottom. They

     were linear.  There were three at different ages.  'I thought

     they were older than the ones on the thigh and the left calf.

     I thought they were up to one week old.  I thought they were

     caused possibly at different times to each other.'  That is the

     three she was referring to.  Those three bruises caused at

     different times to each other. 'They were oblique and suggested

     3 separate times.'

     Finally number six, she referred to the two circular brownish

     bruises but again, you may think they have nothing to do with the

     case.  It is a matter for you, but she also included in the

     number six a fading linear bruise, probably several days old.

     She said in general terms, 'I thought the bruising was consistent

     with the use of a garden cane and more than one time because the

     bruises were at different stages.  Two was an absolute - twice

     that is - was an absolute minimum.'  The most recent bruises she

     put within twenty-four hours.  The oldest, about one week.  She

     said that for a cane to cause bruising it must be used with

     considerable force.  'It squeezes blood out of the capillaries.

     A cane used with less force would not cause bruising.  If it was

     used over clothing that would soften the blow considerably

     because it would spread the force.'

     She confirmed, as you know that Doctor C. was treating the

     [applicant] as a consultant for asthma and for behaviour problems

     and it seems to be agreed all round that this little boy at that

     time at any rate was a difficult little boy.  She was asked by

     Mr. B. about vitamin C deficiency, scurvy and said she had never

     seen a child with scurvy in her whole career.  Vitamin K

     deficiency, again, it was suggested that would cause a tendency

     to bruise in children.  She said, 'Yes, in children with liver

     disease or babies,' but [the applicant] in her opinion was not

     suffering from it.  She said, 'I felt the general bruises on his

     body were not excessive.'  That was her explanation if you

     remember as to why she did not conduct any blood tests on the

     boy.

     ... [S]he said of Prednisolone [which the applicant was taking]:

     'They are steroids.  They can affect a child's behaviour but it

     is more likely to do that if it is given in long courses and in

     high doses for a long time.  It can cause skin thinning.'  But

     she said, 'I think if there was a bruising problem it would have

     shown itself in the places where children are usually bruised in

     the rough and tumble of life.'  She said of Prednisolone. 'I

     don't think it would have any effect on [the applicant's]

     bruising in short courses.'

     ... [Doctor B.] said in terms, in answer to [prosecuting counsel]

     ultimately, that fifty Prednisolone tablets prescribed in

     December 1992 would not lead to skin thinning or cause [the

     applicant] to bruise more easily.

     So what did [the applicant] tell you?  His evidence was not

     really in dispute, was it? ...  He was asked about the visit to

     hospital.  'Something had happened before I went to hospital.

     I had the stick at home.  X. gave me the stick.  He gave it to

     me more than once.  I can't remember how many times.  Sometimes

     he would hit my legs.  It hurt a lot when he did this.  It made

     me cry.  It was a stick out of the garden.  X. kept it in a

     cupboard in the house.  I don't know why X. gave me the stick.

     He didn't say anything.  It hurt a bit and a lot when I was given

     the stick.  I can't remember how long before that visit to

     hospital X. gave me the stick.  Sometimes it was daytime.

     Sometimes it was nighttime.  It was always at home.'

     The little boy confirmed ... that the head master ... spoke to

     him about stealing from his friends ...  He confirmed there was

     an incident when he had got hold of a knife and taken it over to

     the two year old ... 'Mummy and X. were cross.  X. hit me with

     a stick only after [he] had warned me many times about being

     naughty. I can't remember what naughty thing I had done before

     I went to see the Doctor.'

     ... The defence did call a witness, [the applicant's mother] ...

     She said that [the applicant] had been, my words, 'real trouble

     really ever since he was two years old.'  She used the

     expression: 'He was a handful.' ...  She said: '[The applicant]

     has always been one to have a lot of bruises.  My mother and I

     bruise easily.  We are asthmatics.  [The applicant] always has

     a lot of bruises.'

     ... She said that she was unaware that her husband had been

     caning [the applicant].  She did know that the cane was in the

     house.  She had never seen him actually use it.  She had seen him

     threatened with it.  'I had seen the defendant hold the cane to

     [the applicant], though I hadn't done so.  I did approve of my

     husband threatening [the applicant] with the cane, but not

     beating him with the cane.  I don't know when I slap [the

     applicant] if I bruise him or not.'"

     The jury found the applicant's stepfather not guilty of assault

occasioning actual bodily harm by a majority verdict.

B.   Relevant domestic law and practice

20.  "Assault occasioning actual bodily harm" (a more serious form of

assault than "common assault") is made an offence by Section 47 of the

Offences against the Person Act 1861, as amended.  For the purpose of

this section an assault includes an act by which a person intentionally

or recklessly inflicts personal violence upon another.  "Actual bodily

harm" for the purposes of the section includes any hurt or injury

calculated to interfere with the health or comfort of the victim; the

hurt or injury need not be permanent but must be more than transitory

or trifling.  Prosecutions under the section are normally undertaken

by the Crown and the penalty on conviction is a maximum of five years'

imprisonment.

21.  In addition, it is an offence under Section 1(1) of the Children

and Young Persons Act 1933 to assault or ill-treat a child in a manner

likely to cause him unnecessary suffering or injury to health.  The

maximum penalty on conviction is a fine of ten years' imprisonment.

22.  Under the civil law, if no criminal prosecution has been brought

for common assault, physical assault is actionable as a form of

trespass to the person, giving the aggrieved party the right to

recovery of damages.

23.  A summary of the then current domestic law and practice relating

to the use of corporal punishment on a child by a parent or a person

in loco parentis, including a teacher, is set out in the judgment of

the European Court of Human Rights in the Costello-Roberts case (Eur.

Court HR, Costello-Roberts v. the United Kingdom judgment of

25 March 1993, Series A no. 247-C, pp. 54-56, paras. 13-21).  As is

there noted, it was a defence to both criminal charges and civil claims

for assault that the person against whom the charges or claim was made

was a parent or teacher administering reasonable and moderate physical

punishment with a proper instrument in a decent manner.

24.  Since the Court's judgment in the Costello-Roberts case the law

as regards the use of corporal punishment by teachers has been amended

by Section 293 of the Education Act 1993.  According to the new

provisions (Section 47 (1A) and (1B) of the Education (No. 2) Act

1986), corporal punishment by a teacher cannot be justified if the

punishment is inhuman or degrading.  In determining whether punishment

is inhuman or degrading, regard is to be had to "all the 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 and physical effects".

25.  The law relating to the use of corporal punishment on a child by

a parent or other persons in loco parentis remains unchanged:  they are

protected by the law when the punishment is moderate and reasonable in

the circumstances.  The concept of "reasonableness" permits the courts

to apply standards prevailing in contemporary society with regard to

the physical punishment of children.

26.  In criminal proceedings for assault, the burden of proof is on

the prosecution to satisfy the jury, beyond a reasonable doubt, that

an assault was unlawful.  The prosecution must prove that the harm was

not the result of reasonable punishment by someone entitled to

administer it.  In civil proceedings for assault, whilst the

substantive law test is the same, the burden of proof of establishing

that punishment was reasonable is on the defendant, on a balance of

probabilities.

III. OPINION OF THE COMMISSION

A.   Complaints declared admissible

27.  The Commission has declared admissible the applicant's complaints

concerning the caning of the applicant by his stepfather.

B.   Points at issue

28.  The points at issue in the present case are:

-    whether there has been a violation of Article 3 (Art. 3) of the

     Convention;

-    whether there has been a violation of Article 8 (Art. 8) of the

     Convention;

-    whether there has been a violation of Article 13 (Art. 13) of the

     Convention;

-    whether there has been a violation of Article 14 (Art. 14), taken

     together with Article 3 (Art. 3) or Article 8 (Art. 8) of the

     Convention.

C.   As regards Article 3 (Art. 3) of the Convention

29.  Article 3 (Art. 3) of the Convention provides as follows:

     "No one shall be subjected to torture or to inhuman or

     degrading treatment or punishment."

30.  The applicant contends that the corporal punishment to which he

was subjected by his stepfather in the present case amounted to

degrading punishment within the meaning of Article 3 (Art. 3) of the

Convention.  The applicant further contends that State responsibility

attaches in respect of the violation of Article 3 (Art. 3) by reason

of the failure of the United Kingdom through its domestic legal system

adequately to protect children within its jurisdiction from degrading

treatment or punishment by parents or those in loco parentis.  He

relies in this regard on the provisions of Article 1 (Art. 1) of the

Convention and on the Commission's Report in the case of

Costello-Roberts in which the Commission held that an obligation was

imposed on Contracting States by Article 1 (Art. 1) of the Convention

to secure the rights guaranteed by Article 3 (Art. 3) of the

Convention.

31.  The Government dispute that the punishment to which the applicant

was subjected attained the minimum level of severity to amount to

degrading treatment for the purposes of Article 3 (Art. 3) of the

Convention.  The Government further contend that no responsibility can

in any event attach to the United Kingdom under Article 3 (Art. 3) in

respect of the punishment administered by the applicant's stepfather.

The Government argue that no direct responsibility can attach to the

State under the Article in respect of the acts of a parent or

step-parent within the home and, in this regard, contrast the position

with that of the use of corporal punishment in school, where States are

under an obligation to provide education and hence have a direct

responsibility for a school's disciplinary system, including that

operating within a private school (see Eur. Court HR, Costello-Roberts

v. the United Kingdom judgment of 25 March 1993, Series A no. 247-C,

pp. 57-58, paras. 26-28, hereafter "the Costello-Roberts judgment").

It is further denied by the Government that any State responsibility

could be founded in the present case on the decision of the jury to

acquit the applicant's stepfather.  As to the applicant's contention

that State responsibility attaches through the failure of the legal

system adequately to protect the applicant, the Government dispute that

the content of the relevant law failed to secure the rights guaranteed

by Article 3 (Art. 3) of the Convention.

32.  The applicant's complaint under Article 3 (Art. 3) of the

Convention accordingly gives rise to two principal issues:  whether the

applicant was subjected to degrading treatment or punishment within the

meaning of Article 3 (Art. 3) and, if so, whether State responsibility

attaches to the United Kingdom in respect of such treatment or

punishment, with the consequence that there has been a violation of

that Article in the present case.

33.  As to the nature of the treatment to which the applicant was

subjected, the Commission notes that, in his summing up at the close

of the trial of the applicant's stepfather, the judge referred to

six injuries which had been found on examination of the applicant.  One

of the injuries (the third referred to) was almost certainly

unconnected with the case.  The others were:

-    a fresh red linear bruise on the back of the right thigh,

     estimated to have occurred within 24 hours of the examination;

-    a double bruise on the back of the left calf, also linear, a

     little older than the first one;

-    two feint lines on the back of the left thigh, which were similar

     in type to the others, and which were thought to be one or two

     days old;

-    a fading linear bruise, probably several days old.

34.  It was not contested by the defence at the trial that the

injuries found on the applicant and described by the trial judge had

been caused by the applicant's stepfather with the use of a garden

cane.  The Commission, accordingly, finds it established that the above

injuries were inflicted on the applicant by his stepfather.

35.  The applicant underlines that the physical treatment in the

present case, which resulted in these injuries, was considerably more

serious than in the Costello-Roberts case, which was itself regarded

as a borderline case by the European Court of Human Rights.  He sees

no reason to expect lower standards of protection for children in the

home that at school, and considers that there is nothing inherently

less inhuman or degrading when a child is corporally punished in the

home than in an "institutionalised" setting.  He argues that, for

example, no-one would expect a woman to have less legal protection from

assault in the home than, say, in the workplace.  He also submits a

report from his special needs co-ordinator which shows that since he

has been with his father, and has no longer been subjected to the

discipline of his stepfather, his appearance and behaviour have

improved greatly.

36.  The Government submit that there is a very real difference

between corporal punishment in the home and corporal punishment in

school.  They submit that corporal punishment in the home is far less

likely to involve the ritualised elements and public humiliation which

may establish a breach of Article 3 (Art. 3).  The Government also

underline that there is no suggestion in the present case that the

corporal punishment caused injury more severe than minor bruising or

that it had any severe or long lasting effects:  in this regard,

reliance is placed on the evidence before the jury that even this minor

bruising did not establish that the applicant had been hit very hard,

since he bruised easily.  As to the report from the applicant's special

needs co-ordinator, the Government note that the report does not

suggest that his difficult behaviour was caused by the corporal

punishment, but indicates only that the applicant's behaviour has

improved since he moved to live with his father.

37.  In its Costello-Roberts judgment (p. 59, para. 30), the Court

recalled that it had already held that corporal punishment may

constitute an assault on a person's dignity and physical integrity as

protected under Article 3 (Art. 3).  However, the Court also recalled

that, in order for punishment to be "degrading" and in breach of

Article 3 (Art. 3), the humiliation or debasement involved must attain

a particular level of severity and must in any event be other than that

usual element of humiliation inherent in any punishment:

     "The assessment of this minimum level of severity depends on all

     the circumstances of the case.  Factors such as the nature and

     context of the punishment, the manner and method of its

     execution, its duration, its physical and mental effects and, in

     some instances, the sex, age and state of health of the victim

     must all be taken into account" (ibid., the Court citing its

     Ireland v. the United Kingdom judgment of 18 January 1978, Series

     A no. 25, p. 65, para. 162, Tyrer v. the United Kingdom judgment

     of 25 April 1978, Series A no. 26, pp. 14-15, paras. 29-30 and

     Soering v. the United Kingdom judgment of 7 July 1989, Series A

     no. 161, p. 39, para. 100).

38.  In the Costello-Roberts case itself, both the Commission and the

Court found that the punishment of the 7 year-old applicant, which

consisted of three smacks on the buttocks, through shorts, with a

soft-soled shoe apparently causing no visible injury, did not attain

the minimum level of severity to amount to a violation of Article 3

(Art. 3).  By contrast, in two cases involving corporal punishment in

the school context, the Commission found that the punishment had

attained the Article 3 (Art. 3) threshold of severity.  In the case of

Warwick (Comm. Rep. 18.7.86, D.R. 60, p. 5) the Commission found that

the administering of one stroke of the cane to the hand of a

16 year-old girl by a man, in the presence of another man, and which

left physical injury the effects of which were visible for over a

week, was "degrading ... punishment" within the meaning of Article 3

(Art. 3).  In the case of Y v. the United Kingdom (Comm. Rep. 8.10.91,

Eur. Court HR, Series A no. 247-A, p. 14, paras. 44, 45), the

Commission found that the caning - four times, on the buttocks through

trousers - of a 15 year-old schoolboy, which left marks for some time,

amounted to "degrading treatment and punishment" within the meaning of

Article 3 (Art. 3).

39.  The Commission notes that the punishment to which the applicant,

a 9 year-old boy, was subjected in the present case was considerably

more severe in degree and in its effects than that in the

Costello-Roberts case.  It appears from the uncontested evidence before

the criminal court that the applicant was beaten with a garden cane on

two or, more probably, three occasions in the course of one week and

that at least some of the strokes were inflicted directly onto the bare

skin.  As in the cases of Warwick and Y, the strokes were severe enough

to leave bruises which, in the present case, were visible several days

later.  According to the doctor who examined the applicant, for a cane

to cause bruising, it must be used with considerable force,

particularly if it is administered over clothing.  As to the contention

that there was evidence that the applicant bruised easily the

Commission observes that the same doctor expressly rejected the

suggestion that a vitamin deficiency or the taking of asthma tablets

might have caused the applicant to bruise more easily, noting that, if

the applicant had been prone to bruising, bruises would have been

expected on other parts of the body "where children are usually bruised

in the rough and tumble of life".  The Commission further notes the

applicant's own evidence at the trial to the effect that the beatings

were frequent and "hurt a lot", particularly when he was beaten on the

legs.  The severity of the punishment to which the applicant was

subjected is further borne out by the fact that, in contrast to the

case of Costello-Roberts, the prosecuting authorities deemed the

applicant's injuries to be sufficiently serious to merit the initiation

of criminal proceedings against the applicant's stepfather.

40.  The Government place emphasis on the fact that the caning of the

applicant was not administered in school or by public authorities but

in the applicant's home by his stepfather and thus lacked the element

of "institutionalised violence" which the Court in its above-mentioned

Tyrer judgment regarded as an aggravating factor (p. 16, para. 33).

While it is true that the punishment was administered privately at

home, rather than in the institutional setting of a school, this fact

cannot in the view of the Commission be determinative.  As the

Commission observed in its Report in the case of Y, the injuries

inflicted on the applicant (in this case, a young boy) are unacceptable

"whoever were to inflict the punishment, be it parent or teacher"

(para. 44).

41.  The Commission accordingly considers that, having regard to the

circumstances of the present case, the corporal punishment inflicted

on the applicant caused him significant physical injury, pain and

humiliation which attained such a level of seriousness that it

constituted degrading treatment or punishment within the meaning of

Article 3 (Art. 3) of the Convention.

42.  The question remains whether the State may be held responsible

for such treatment or punishment, administered as it was not by an

agent of the State or by a teacher but by the applicant's stepfather.

43.  The Commission observes in the first place that no direct

responsibility can attach to the United Kingdom under the Convention

for the acts of the applicant's stepfather.  In this respect the

position differs from that involving the use of corporal punishment by

a teacher in school, whether a State or independent school.  In

concluding in the Costello-Roberts case that the direct responsibility

of the United Kingdom was engaged under Article 3 (Art. 3) of the

Convention for the acts of the headmaster of a private school, the

Court placed emphasis on three factors:  (1) the State had an

obligation to secure to children their right to education under

Article 2 of Protocol No. 1 (P1-2), and functions relating to the

internal administration of a school, such as discipline, could not be

said to be merely ancillary to the educational process; (2) the

fundamental right of everyone to education was a right guaranteed

equally to pupils in State and independent schools, no distinction

being made between the two; (3) a State could not absolve itself from

responsibility by delegating its obligations to private bodies or

individuals.  These factors led the Court to conclude that

     "... in the present case, which relates to the particular domain

     of school discipline, the treatment complained of although it was

     the act of a headmaster of an independent school, is none the

     less such as may engage the responsibility of the United Kingdom

     under the Convention if it proves to be incompatible with

     Article 3 (Art. 3) or Article 8 (Art. 8) or both" (p. 58,

     paras. 27-28).

44.  No similar reasoning can in the view of the Commission apply in

a case where the acts complained of are those of a parent or

step-parent.  Moreover, no direct responsibility for the treatment in

question can attach to the State by reason of the jury's acquittal of

the applicant's stepfather.  In this regard a distinction is to be

drawn between a case where the verdict or decision of a jury directly

infringes a Convention right (as, for example, by an excessive award

of damages:  Eur. Court HR, Tolstoy Miloslavsky v. the United Kingdom

judgment of 13 July 1995, Series A no. 316-B) and a case such as the

present where a substantive right in the Convention is violated by a

private individual who is acquitted in criminal proceedings by the

verdict of a jury.

45.  The Commission recalls, however, that it has previously held

that, even in the absence of any direct responsibility for the acts of

a private individual under Article 3 (Art. 3) of the Convention, State

responsibility may nevertheless be engaged through the obligation

imposed by Article 1 (Art. 1) of the Convention "to secure ... the

rights and freedoms defined in Section 1 of this Convention".  In its

Report in the Costello-Roberts case, the Commission recalled that it

had held in its decision on admissibility that "the United Kingdom was

responsible under the Convention, Articles 1, 3 and 8 (Art. 1, 3, 8)

of which having imposed a positive obligation on High Contracting

Parties to ensure a legal system which provides adequate protection for

children's physical and emotional integrity" (para. 37).  The

Commission went on to quote from its admissibility decision in which

it had found that

     "... Contracting States do have an obligation under Article 1

     (Art. 1) of the Convention to secure that children within their

     jurisdiction are not subjected to torture, inhuman or degrading

     treatment or punishment, contrary to Article 3 (Art. 3) of the

     Convention.  This duty is recognised in English law which

     provides certain criminal and civil law safeguards against

     assault or unreasonable punishment" (ibid).

While, as noted above, the Court in its Costello-Roberts judgment

preferred to found its decision as to State responsibility on the

direct responsibility of the United Kingdom for the disciplinary system

operating within schools, the Court, too, observed that it had

     "... consistently held that the responsibility of a State is

     engaged if a violation of one of the rights and freedoms defined

     in the Convention is the result of non-observance by that State

     of its obligation under Article 1 (Art. 1) to secure those rights

     and freedoms in its domestic law to everyone within its

     jurisdiction" (p. 57, para. 26; see mutatis mutandis, the Young,

     James and Webster v. the United Kingdom judgment of

     13 August 1981, Series A no. 44, p. 20 para. 49).

46.  As in the Costello-Roberts case, the Government accept for the

purposes of the present proceedings that such an obligation existed as

regards securing the rights guaranteed by Articles 3 and 8 (Art. 3, 8).

However, it is disputed that the content of the relevant law failed to

secure the rights guaranteed by either Article.  The Government

underline that the content of the criminal law, which allows corporal

punishment only where carried out in a moderate and reasonable manner,

is consistent with Article 3 (Art. 3) which does not per se prohibit

corporal punishment.  It is contended that the circumstances of the

present case do not show that the domestic law is inadequate to protect

the rights guaranteed by the Article; the only inference which can be

drawn from an acquittal is that the jury were not satisfied beyond a

reasonable doubt that the punishment administered to the applicant was

not moderate and reasonable.  The Government point to a series of cases

involving corporal punishment in which criminal convictions have

resulted and argue that the jury, who heard the evidence, are far

better placed than the Commission to assess whether the punishment

exceeded what is reasonable and moderate in all the circumstances.

Finally, the Government emphasise that the criminal law is not the only

form of legal control:  in addition, there exists civil liability for

assault if a parent inflicts corporal punishment which is not moderate

or reasonable.  It is pointed out that in a civil action, by contrast

with a criminal trial, the burden of proof in relation to the

reasonableness of the punishment lies on the defendant on a balance of

probabilities.  In addition, there exist other legal controls, in the

form of care orders and supervision orders under Section 31 of the

Children Act 1989, which it is claimed are better adapted to promoting

the welfare of the child than criminal proceedings.

47.  The Commission observes at the outset that, while the choice of

means designed to secure compliance with Convention rights in the

sphere of the relations between individuals themselves is in principle

a matter that falls within the Contracting States' margin of

appreciation, the effective protection of vulnerable individuals such

as children against treatment or punishment falling within Article 3

(Art. 3) of the Convention requires the deterrent effect of the

criminal law.  As the Court noted, in the different context of the

protection of the Article 8 (Art. 8) rights of a mentally handicapped

child, "effective deterrence is indispensable in this area and it can

be achieved only by criminal-law provisions ..." (X and Y v. the

Netherlands judgment of 26 March 1985, Series A no. 91, p. 13,

para. 27).

48.  On the other hand, the obligation on the State under Article 1

(Art. 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 on another or that, if

it is, the perpetrator will be subject to criminal sanctions.  In order

that a State may be held responsible it must in the view of the

Commission be shown that the domestic legal system, and in particular

the criminal law applicable in the circumstances of the case, fails to

provide practical and effective protection of the rights guaranteed by

Article 3 (Art. 3) (cf. the above-mentioned X and Y v. the Netherlands

judgment, p. 14, para. 30).

49.  In determining whether such protection is provided, the

Commission attaches importance to the international recognition of the

need for the protection against all forms of physical ill-treatment

of children, who by reason of their age and vulnerability are not

capable of protecting themselves.  The Commission has had particular

regard to the UN Convention on the Rights of the Child, setting out as

it does general standards as to the protection of children and

children's rights.  The Commission notes that by Article 19  of the

UN Convention, States are enjoined to take all appropriate measures "to

protect the child from all forms of physical or mental violence, injury

or abuse".

50.  In the present case, as noted by the Commission in the

Costello-Roberts case, English law provides certain criminal and civil

law safeguards against assault.  However, the protection afforded in

this area by the 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.  Moreover, the Commission

notes that in criminal proceedings the burden lies on the prosecution

to negative the defence, by satisfying a jury beyond reasonable doubt

that the punishment was not in all the circumstances reasonable or

moderate and not on the defendant to substantiate the reasonable and

moderate value of the punishment applied.

51.  The Government argue that, even in the absence of any express

reference to Convention standards in domestic law, the criteria applied

by the domestic courts in determining whether punishment is reasonable

and moderate are very similar to those applied by the Convention organs

in determining whether punishment is inhuman or degrading.  In this

regard reliance is placed by the Government on examples of eight

reported cases over a period of some 30 years, in which convictions for

assault resulted from the use of excessive corporal punishment of

children, as demonstrating the effectiveness of domestic law in

protecting the rights of the child.

52.  As to the former argument, the Commission is not convinced that

there is any true correlation between the Convention test of punishment

which is inhuman or degrading and the domestic law test of punishment

which is not reasonable and moderate.  In this connection, the

Commission notes that, in its concluding observations of

15 February 1995 on the initial report of the United Kingdom, the

UN Committee on the Rights of the Child expressed concern about the

national legal provisions dealing with reasonable chastisement  within

the family, observing 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"

(CRC/C/15/Add. 34 para. 16).  In the specific context of the present

case, the Commission observes that, while directing the jury that under

English law it was for the prosecution to prove that the beating of the

applicant was not lawful correction, little guidance was provided as

to the meaning of "reasonable and moderate chastisement":  in

particular, no specific guidance was given as to the relevance of the

age or state of health of the applicant, the appropriateness of the

instrument used, the frequency of the punishment, or the physical or

mental suffering of the applicant or as to the relevance, if any, of

the defence claim that the punishment of the applicant was "necessary"

and "justified".

53.  The Commission further regards it as significant that, following

the Court's Costello-Roberts judgment, the Government introduced

legislation to improve the protection of children at private schools

against excessive use of corporal punishment by providing in terms that

punishment "cannot be justified if the punishment was inhuman or

degrading" and by laying down the circumstances to which regard is to

be had in determining whether punishment is inhuman or degrading (see

para. 24 above).

54.  As to the Government's reliance on reported cases where

convictions have been obtained in cases involving the physical

punishment of children, the Commission accepts that, notwithstanding

the domestic law defence of lawful correction, prosecutions have

successfully resulted in convictions.  However the Commission does not

consider that these cases afford any reliable basis for concluding that

domestic law adequately protects the rights guaranteed by Article 3

(Art. 3) in this area.  In particular, the Commission notes that no

information has been or can be provided as to the number of similar

cases which resulted in acquittals or the number of cases in which the

prosecuting authorities decided not to bring proceedings because the

defence of lawful correction was likely to result in an acquittal.

55.  The Commission, accordingly, finds that the domestic law failed

to provide the applicant with adequate and effective protection against

corporal punishment which was in the circumstances of the case

degrading within the meaning of Article 3 (Art. 3) of the Convention

and that the applicant was a victim of treatment or punishment contrary

to Article 3 (Art. 3) of the Convention for which the United Kingdom

must be held responsible.  The Commission would emphasise that this

finding does not mean that Article 3 (Art. 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.

CONCLUSION

56.  The Commission concludes unanimously that in the present case

there has been a violation of Article 3 (Art. 3) of the Convention.

D.   As regards Article 8 (Art. 8) of the Convention

57.  Article 8 (Art. 8) of the Convention provides, so far as

relevant, as follows:

     "1.  Everyone has the right to respect for his private and

     family life ...

     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 ... 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."

58.  The applicant emphasises that the Court in the case of

Costello-Roberts left open the question whether disciplinary measures

which did not breach Article 3 (Art. 3) could nevertheless breach

Article 8 (Art. 8), and points out that the Court has accepted that

Article 8 (Art. 8) carries positive obligations in connection with

physical integrity in its X and Y v. the Netherlands judgment.  He

considers that arguments about avoiding excessive rigidity cannot be

applied when discussing violent and humiliating punishment.

59.  The Government, also with reference to the Costello-Roberts case,

recall that it would be rare for school disciplinary measures which do

not breach Article 3 (Art. 3) to be in breach of Article 8 (Art. 8).

They submit that a similar reasoning applies in the context of

disciplinary measures in the home.  As to the alleged imprecision of

the criterion of reasonable chastisement, the Government recall that

it is impossible to attain absolute precision in the framing of laws,

particularly in fields in which the situation changes according to the

prevailing views of society (see Eur. Court HR, Müller v. Switzerland

judgment of 24 May 1988, Series A no. 133, p. 20, para. 29).

60.  The Commission recalls its conclusion at para. 56 above

concerning the applicant's complaints under Article 3 (Art. 3) of the

Convention, and considers that it is not necessary to determine

separately whether there has been a violation of Article 8 (Art. 8) of

the Convention.

     CONCLUSION

61.  The Commission concludes, by 16 votes to 1, that in the present

case it is not necessary to determine whether there has been a

violation of Article 8 (Art. 8) of the Convention.

E.   As regards Article 13 (Art. 13) of the Convention

62.  Article 13 (Art. 13) of the Convention provides as follows:

     "Everyone whose rights and freedoms as set forth in this

     Convention are violated shall have an effective remedy before a

     national authority notwithstanding that the violation has been

     committed by persons acting in an official capacity."

63.  The applicant accepts that the effectiveness of a remedy does not

depend on a successful outcome, but considers that the decision of the

criminal court in this case - and similar decisions in many other

cases, civil and criminal - makes quite clear that neither civil nor

criminal law offers any effective remedy in respect his claims of

violations of Articles 3 and 8 (Art. 3, 8) of the Convention.

64.  The Government submit that the civil law of assault, supplemented

by the criminal law, gives an adequate remedy in connection with the

complaints under Articles 3 and 8 (Art. 3, 8) of the Convention.  They

rely on the Costello-Roberts judgment (p. 62, para. 40).

65.  The Commission recalls that in its Costello-Roberts judgment the

Court found no violation of Article 13 (Art. 13).  The Court there

pointed out that it was not disputed that it would have been open to

the applicant to institute civil proceedings for assault and that the

effectiveness of a remedy for the purposes of Article 13 (Art. 13) did

not depend on the certainty of a favourable outcome.  Insofar as the

applicant's arguments related to the more general question of the scope

of the relevant domestic law, the Court recalled, at p. 62, para. 40,

     "... that Article 13 (Art. 13) does not go so far as to guarantee

     a remedy allowing a Contracting State's laws as such to be

     challenged before a national authority on the ground of being

     contrary to the Convention or to equivalent domestic legal norms

     (see, among other authorities, the James and others v. the United

     Kingdom judgment of 21 February 1986, Series A no. 98, p. 47,

     para. 85)."

66.  The Commission considers that similar reasoning is applicable in

the present case.  The essence of the applicant's complaints under

Articles 3 and 8 (Art. 3, 8) of the Convention concerns the inadequacy

of the domestic law to protect his substantive rights under these

Articles.  As held by the Court, Article 13 (Art. 13) does not go so

as far as to guarantee a remedy before a national authority in such

circumstances.  It follows that there has been no violation of

Article 13 in the present case.

CONCLUSION

67.  The Commission concludes unanimously that in the present case

there has been no violation of Article 13 (Art. 13) of the Convention.

F.   As regards Article 14 (Art. 14) of the Convention, taken together

     with Articles 3 and 8 (Art. 3, 8) of the Convention

68.  Article 14 (Art. 14) of the Convention provides as follows:

     "The enjoyment of the rights and freedoms set forth in this

     Convention shall be secured without discrimination on any ground

     such as sex, race, colour, language, religion, political or other

     opinion, national or social origin, association with a national

     minority, property, birth or other status."

69.  The applicant alleges that domestic law discriminates against

children in that it fails to afford them the same protection as adults.

70.  The Commission recalls that examination of the case under

Article 14 (Art. 14) is not generally required when the Court finds a

violation of one of the former Articles taken alone.  In the light of

its conclusion under Article 3 (Art. 3) (para. 56 above), the

Commission considers that it is not necessary to determine separately

whether there has been a violation of Article 14 (Art. 14) of the

Convention.

     CONCLUSION

71.  The Commission concludes unanimously that in the present case it

is not necessary to determine whether there has been a violation of

Article 14, taken together with Article 3 or 8 (Art. 14+3 or 8) of the

Convention.

G.   Recapitulation

72.  The Commission concludes unanimously that in the present case

there has been a violation of Article 3 (Art. 3) of the Convention

(para. 56).

73.  The Commission concludes by 16 votes to 1, that in the present

case it is not necessary to determine whether there has been a

violation of Article 8 (Art. 8) of the Convention (para. 61).

74.  The Commission concludes unanimously that in the present case

there has been no violation of Article 13 (Art. 13) of the Convention

(para. 67).

75.  The Commission concludes unanimously that in the present case it

is not necessary to determine whether there has been a violation of

Article 14, taken together with Article 3 or 8 (Art. 14+3 or 8) of the

Convention (para. 71).

        H.C. KRÜGER                         S. TRECHSEL

         Secretary                           President

     to the Commission                    of the Commission

                                                 (Or. English)

            CONCURRING OPINION OF Mr. J. LOUCAIDES

     I agree with the majority that there has been a violation of

Article 3 of the Convention in this case.  In so concluding, however,

I did not find it necessary to examine, like the majority, whether or

not in the circumstances of the present case the corporal punishment

inflicted on the applicant caused him physical injury, pain or any

other effect so as to decide whether the punishment attained "such a

level of seriousness" that it constituted "inhuman or degrading

treatment or punishment" within the meaning of Article 3 of the

Convention.  I continue to hold the view which I have expressed in the

Costello-Roberts case, Series A no. 247-C, p. 81 and which I think has

been strengthened by the developments which took place in the meantime.

In that case I have expressed the view that -

     "In principle ... any school corporal punishment amounts to a

     breach of Article 3 ...  Corporal punishment is nothing less than

     a deliberate assault on a person's dignity and physical integrity

     ...  Beating any person as a method of punishment for whatever

     wrongdoing on his part ... is nowadays an unacceptable form of

     punishment and it amounts in my view to inhuman and degrading

     treatment.  The number, intensity or hardness of the strokes or

     the fact that they do or do not cause physical injuries are, in

     my view, immaterial factors in determining whether corporal

     punishment amounts to inhuman and degrading treatment.  The

     nature of such punishment in itself is a sufficiently severe blow

     to and degradation of the personality of the individual as to

     amount to such treatment".

     Ever since the Costello-Roberts case an increasing number of

countries, including States-Parties to European Convention on Human

Rights, have ratified the U.N. Convention on the Rights of the Child

which by Article 19 requires States Parties to take all appropriate

measures "to protect the child from all forms of physical or mental

violence, injury or abuse ... or ... maltreatment".  This is indicative

of the increasing international trend of rejecting and banning the use

of physical violence against children in any form and for any purpose

including punishment because of the inhuman nature of such violence.

And I believe that it is high time to reconsider the existing approach

regarding corporal punishment of children as established by the

jurisprudence and to adopt the view that such punishment, regardless

of the degree of its severity, is by its very nature inhuman and

degrading treatment.

                                                 (Or. English)

             CONCURRING OPINION OF Mr. E.A. ALKEMA

     I voted with the majority that Article 3 has been violated in the

present case.  Indeed, the facts disclose that the treatment inflicted

upon the first applicant attained such a level of severity that this

conclusion is justified and that, for the reasons set out in the report

(para. 43), such treatment although administered by a private person

engaged the State's responsibility.

     Yet, I would have preferred to consider the application under

Article 8 and to have found a violation of that provision. This is more

in line with the Court's judgment in X and Y v. the Netherlands of

26 March 1985 (Series A no. 91). That case also concerned the abuse of

a minor. In contrast to the majority in the case at hand the Court

having found that Article 8 had been violated did not consider that it

also had to examine the case under Article 3 (cf. as a recent authority

the Court's judgment Laskey, Jaggard and Brown v. the United Kingdom

of 19 February 1997, in which sado-masochist practices among private

persons were also treated by the Court under Article 8 since the

applicability of that provision "had not been disputed by those

appearing before it" (para. 38).

     In my opinion Article 8 is also preferable for the following

reasons.

     It covers the right to respect for both privacy (including a

person's physical and mental integrity) and family life. Violent events

within the family as occurred in the present case which might result

e.g. in dismissal from parental authority are matters that come in the

case-law of the Court and Commission usually under Article 8.

     Moreover, Article 8 is not as absolute as Article 3 (see Donnelly

et al. Nos. 5577 and 5583, D.R. 4, p. 4). It thus, more naturally,

allows for a balancing exercise for which in particular the second

paragraph of Article 8 contains explicit criteria. Even in cases as the

instant one where Article 8 implies a positive obligation for the State

the second paragraph "may be of a certain relevance" (see Rees v. the

United Kingdom judgment of 17 October 1986, p. 15, para. 37).

     One such criterion is the legality of the rule applied, notably

the precision and foreseeability of the rule as well as the extent to

which it corresponds to the requirements of the Convention (e.g.

Article 3; cf. para. 50 of the present report).

     Furthermore, "the rights of others" might be in certain

circumstances, for instance where the protection of other children of

the family are concerned, a factor in this balancing exercise.

     Finally, Article 8 offers the basis for testing the

proportionality of legislation seeking to protect children against

abuse. Therewith is connected the "margin of appreciation", a certain

discretion for the State which is indispensable where the State's

responsibility - as in the present case - is an indirect one. This is

particularly so, where the State policy to offer adequate protection

is materialised through a set of legislative rules penal and civil,

which have to be implemented through the administration and the courts.