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DURAIRAJ, BAKER (formerly Durairaj) AND DURAIRAJ v. THE UNITED KINGDOM

Doc ref: 9114/80 • ECHR ID: 001-45408

Document date: July 16, 1987

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DURAIRAJ, BAKER (formerly Durairaj) AND DURAIRAJ v. THE UNITED KINGDOM

Doc ref: 9114/80 • ECHR ID: 001-45408

Document date: July 16, 1987

Cited paragraphs only

Application No. 9114/80

Kamharaj DURAIRAJ, Margaret BAKER (formerly DURAIRAJ)

and Anthony DURAIRAJ

against

the United Kingdom

REPORT OF THE COMMISSION

adopted on 16 July 1987

TABLE OF CONTENTS

Page

INTRODUCTION ........................................ 1

Part I: STATEMENT OF THE FACTS ..................... 3

Part II: SOLUTION REACHED .......................... 4

INTRODUCTION

1. This Report relates to Application No. 9114/80 introduced by

Kamharaj Durairaj, Margaret Baker (formerly Durairaj) and Anthony

Durairaj against the United Kingdom on 2 July 1980 under Article 25 of

the Convention for the protection of Human Rights and Fundamental

Freedoms. The application was registered on 11 September 1980.

The applicants were represented first by Messrs. David Carr

and Roe, solicitors, Birkenhead, succeeded by Messrs. Christopher

Thomas & Co., solicitors, Birkenhead.

The Government were represented by their Agents, first Mrs.

A. Glover, succeeded by Mr. M.R. Eaton, and Mr. M. Wood and Mr. J.A.

Grainger, all of the Foreign and Commonwealth Office.

2. On 11 October 1984, the European Commission of Human Rights

declared admissible the third applicant's complaints concerning his

right to education and the first and second applicants' complaints

concerning their parental rights to have the third applicant educated

in conformity with their own philosophical convictions. The

Commission then proceeded to carry out its task under Article 28 of

the Convention which provides as follows:

"In the event of the Commission accepting a petition referred

to it:

a. it shall, with a view to ascertaining the facts undertake

together with the representatives of the parties an

examination of the petition and, if need be, an

investigation, for the effective conduct of which the

States concerned shall furnish all necessary facilities,

after an exchange of views with the Commission;

b. it shall place itself at the disposal of the parties

concerned with a view to securing a friendly settlement

of the matter on the basis of respect for Human Rights as

defined in this Convention."

3. The Commission found that the parties had reached a friendly

settlement of the case and on 16 July 1987 it adopted this Report

which, in accordance with Article 30 of the Convention, is confined to

a brief statement of the facts and of a solution reached.

The following members of the Commission were present when the

Report was adopted:

MM. C.A. NØRGAARD, President

J.A. FROWEIN

S. TRECHSEL

F. ERMACORA

E. BUSUTTIL

A.S. GÖZÜBÜYÜK

A. WEITZEL

J.C. SOYER

H.G. SCHERMERS

H. DANELIUS

G. BATLINER

H. VANDENBERGHE

Mrs G.H. THUNE

Sir Basil HALL

M. F. MARTINEZ

I. STATEMENT OF THE FACTS

4. The applicants are United Kingdom citizens, residing at

Birkenhead, Merseyside in England. The first and second applicants

are the parents of the third applicant who was born on 27 June 1964.

5. The application concerns the refusal by the first and second

applicants to allow corporal punishment of their son at school and

their son's subsequent suspension from school in 1979. In April 1980

proceedings were brought against the first and second applicants under

Section 39 of the Education Act 1944 for failing to send the third

applicant to school. On 9 June 1980 the first and second applicants

were convicted by the Magistrates Court under Section 39 of the

Education Act 1944. The first applicant was fined £50 and ordered to

pay £25 costs and £150 legal aid contribution. The second applicant

was fined £50 and ordered to pay £25 costs.

6. The third applicant did not return to school and did not take

any school leaving examinations.

7. Before the Commission, the applicants complained in particular

that the third applicant's suspension from school was contrary to his

right to education ensured by Article 2, first sentence, of Protocol

No. 1 to the Convention. The first and second applicants complained,

under Article 2 second sentence that the proposed punishment of their

son and the use of corporal punishment in the school were contrary to

their right to have their son educated in conformity with their own

philosophical convictions.

8. The application was introduced on 2 July 1980 by the

applicants and registered on 11 September 1980. On 11 December 1980

the Commission decided to bring the application to the attention of

the respondent Government without asking them to submit written

observations pending the decision of the European Court of Human

Rights in the Campbell and Cosans case. Following the Court's

judgment in the case of Campbell and Cosans (Eur. Court H.R., Campbell

and Cosans judgment of 25 February 1982, Series A No. 48) the

applicants on 30 June 1982 made further submissions in the light of

that judgment.

9. The Commission decided on 14 October 1982 that the Government

should be invited to submit their observations on the admissibility

and merits of the application. The Government's observations were

submitted on 23 March 1983. The applicants submitted further

observations in reply on 12 July 1983 together with further

communications on 8 November 1983, 19 December 1983 and 3 May 1984.

The Commission decided on 16 December 1983 that the applicants be

granted free legal aid.

10. The Commission declared the application admissible on

11 October 1984.

II. SOLUTION REACHED

11. Following its decision on the admissibility of the

application, the Commission placed itself at the disposal of the

parties with a view to securing a friendly settlement in accordance

with Article 28 (b) of the Convention and invited the parties to

submit any proposals they wished to make.

12. In accordance with its usual practice the Commission

instructed its Secretary to contact the parties for this purpose.

Following a meeting and an exchange of correspondence channelled

through the good offices of the Commission, the Agent of the

Government, by letter of 9 July 1987, made the following declaration:

"I have the honour to refer to the discussions which have

taken place concerning a friendly settlement of the above

application.

The Government of the United Kingdom would recall the

provisions of the Education (No. 2) Act 1986, which received

the Royal Assent on 7 November 1986. The relevant provisions

of the Act are Section 47 (abolition of corporal punishment)

and Section 48 (abolition of corporal punishment: Scotland).

These provisions come into force on 15 August 1987. Similar

arrangements will apply in Northern Ireland: the Education

(Corporal Punishment) (Northern Ireland) Order 1987 (S.I.

1987/461).

The Government are prepared to make the following ex

gratia payments with a view to achieving a friendly

settlement of the above application:

- £4000 to the third applicant,

- £750 (in total) to the third applicant's parents

(the first and second applicants).

In addition, the Government are prepared to pay the

applicants' reasonable costs in the domestic and Strasbourg

proceedings."

13. The contents of this declaration was transmitted to the

applicants' representatives, who by telex of 15 July 1987 confirmed

that the applicants accepted this offer and considered the matter to

be settled.

14. On 16 July 1987 the Commission noted that the parties had

reached agreement regarding the terms of settlement. The Commission

also noted the provisions of the Education (No. 2) Act 1986, which

received the Royal Assent on 7 November 1986 concerning corporal

punishment in schools. The Commission found, having regard to Article

28 (b) of the Convention, that a friendly settlement of the present

application had been secured on the basis of respect for Human Rights

as defined in the Convention.

For these reasons, the Commission adopted this Report.

Secretary to the Commission President of the Commission

(H.C. KRÜGER) (C.A. NØRGAARD)

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