AS TO THE ADMISSIBILITY OF

Application No. 13134/87

by Wendy and Jeremy COSTELLO-ROBERTS

against the United Kingdom

        The European Commission of Human Rights sitting in private on

13 December 1990, the following members being present:

                MM.  C.A. NØRGAARD, President

                     J.A. FROWEIN

                     E. BUSUTTIL

                     G. JÖRUNDSSON

                     A. WEITZEL

                     H.G. SCHERMERS

                     H. DANELIUS

                Mrs.  G.H. THUNE

                Sir  Basil HALL

                Mr.  C.L. ROZAKIS

                Mrs.  J. LIDDY

                MM.  L. LOUCAIDES

                     J.C. GEUS

                     A.V. ALMEIDA RIBEIRO

                     M.P. PELLONPÄÄ

                Mr.  H.C. KRÜGER, Secretary to the Commission

        Having regard to Article 25 of the Convention for the

Protection of Human Rights and Fundamental Freedoms;

        Having regard to the application introduced on 17 January 1986

by Wendy and Jeremy COSTELLO-ROBERTS against the United Kingdom and

registered on 11 August 1987 under file No. 13134/87;

        Having regard to:

     -  reports provided for in Rule 47 of the Rules of Procedure of

        the Commission;

     -  the Commission's decision of 5 May 1989 to bring the

        application to the notice of the respondent Government

        and invite them to submit written observations on its

        admissibility and merits;

     -  the observations submitted by the respondent Government

        on 27 September 1988 and the observations in reply

        submitted by the applicant on 3 January 1989;

     -  the Commission's decision of 9 May 1989 to adjourn

        examination of the application pending developments in

        a similar application (No. 14229/88 X and Y v. the

        United Kingdom);

     -  the Commission's decision of 6 October 1990 to hold a

        hearing in the case;

     -  the hearing held on 13 December 1990;

        Having deliberated;

        Decides as follows:

THE FACTS

        The applicants, United Kingdom citizens, are a mother and son

living in Newquay, Cornwall.  They are represented before the

Commission by Messrs.  Binks Stern and Partners, Solicitors, London.

The facts of the case, as submitted by the parties, may be summarised

as follows:

A.      The particular facts of the case

        The second applicant was born on 11 December 1977.  At the

relevant time, he attended, as a boarder, an independent school in

Barnstaple.  The applicants made no inquiry about the school's

disciplinary regime.  They claim not to have been aware at that stage

that corporal punishment was widespread in private schools.  The

mother did not make known her opposition to corporal punishment at the

outset and the school did not of its own initiative inform her of its

disciplinary policy.  It was the school's practice to inform parents

who enquired about discipline that on rare occasions corporal

punishment could be used as a punishment of last resort.  When

applying for entry to the school, parents were required to complete a

form which indicated, inter alia, that "Parents and others 'in loco

parentis' are required to abide by the rules and regulations in force

at the school".  Furthermore, the school prospectus included in the

school's aims the following section:

        "In a well ordered boarding community the need for discipline

        and self discipline is apparent to the normal child.  Thus a

        high standard of discipline is maintained ..."

        There was, however, no mention made of corporal punishment.

        The headmaster considered the second applicant undisciplined

and lacking in self control, not helped by his home background.  This

led to him being a disruptive influence for he refused to accept the

authority of senior children or members of staff.

        On 3 October 1985 the second applicant was reprimanded by a

teacher for talking in the corridor.  This earned him a demerit mark.

He had already acquired four such demerit marks for similar conduct

and for being a little late for bed on one occasion.  The penalty for

collecting five demerit marks was corporal punishment.  The headmaster

discussed the matter with his colleagues and it was decided that, as

other sanctions had proved ineffective, three "whacks" with a gym shoe

were the final and only possible answer to the boy's lack of

discipline.  The second applicant was informed of this decision.  He

alleges that he was told not to inform his parents about his

punishment, an allegation denied by the Government.

        Three days later, the headmaster called the second applicant

into his study and hit him three times on his bottom, through his

shorts, with a rubber soled gym shoe.  No other persons were present.

The staff noticed an almost immediate improvement in the boy's

behaviour, but considered that the subsequent contact that he had with

his parents during the half term holiday caused him to revert.  The

headmaster was of the opinion that the second applicant "strung his

parents along", taking home stories about bullying and the like "which

he has clearly made up but which equally clearly his parents believe".

The school also considered that the second applicant had been

corporally punished in accordance with the disciplinary code and with

the prior consent given, on behalf of the second applicant, by the

first applicant, when applying to enter her son at the school.

        The first applicant first heard of the punishment when the

second applicant wrote to her from school.  She contacted the school

immediately and she alleges that on 14 October 1985 she was informed

by the headteacher that no such event had taken place.  The Government

deny this allegation.

        The second applicant continued to write in some distress to

the first applicant about the "slippering".  On 4 November the school

confirmed that the second applicant had been slippered some four weeks

earlier.

        The first applicant wrote to the headteacher and the governors

of the school stating that she did not wish her son to be corporally

punished again.

        The first applicant made a complaint to the police some time

between 4 and 16 November 1985, but she was told that there was no

action they could take since there was no longer any visible bruising

on the child's bottom.  She also made a complaint to the National

Society for the Prevention of Cruelty to Children, but received the

same response as that from the police.

        On 16 November 1985 the headteacher wrote to the first

applicant stating that "in view of your obvious dissatisfaction with

the education being offered... to your son..., and your desire for him

to be exempt from the framework of discipline and punishment that is

acceptable to all other parents at the school, it seems best if (he)

is removed from (the school) at the end of the present term".

        It is claimed by the applicants that the second applicant was

extremely disturbed as a result of his slippering, which turned him

from a confident, outgoing seven year old into a nervous and

unsociable child.  The Government refute this claim.  The school

reports at the time note no change in the second applicant's attitude

or otherwise.  According to the Government's information any

modification in the child's behaviour (if any) was more likely caused

by his inability to adjust to the constraints of boarding school life.

The correspondence between the first applicant, the school governors

and the headmaster reflects the boy's adaptation difficulties.  The

Government contend that there is no evidence to show that any change

in the second applicant's character during his time at the school was

caused by the punishment of which complaint is made.

        The second applicant was moved to a new school in January

1986, which reported in July 1986 that the boy had "calmed down

considerably" since arriving there.

B.      The relevant domestic law and practice

        The lawful bounds of corporal punishment were as generally

described for all English schools prior to 15 August 1987 in

Halsbury's Laws of England (Fourth Edition Volume 15) as follows:

        "66. Position of school-teachers.  The authority of a

        school-teacher is, while it exists, the same as that of

        parent.  When a parent sends his child to a school he

        delegates to the head teacher his own authority so far as

        is necessary for the child's welfare and so far as is

        necessary to maintain discipline with regard to the child

        in the child's interests and those of the school as a whole.

        The head teacher's right to punish a child extends to a

        responsible assistant teacher.

        67. Corporal punishment.  As delegate of the parental

        authority, a head teacher and a responsible assistant teacher

        have the right to inflict moderate and reasonable corporal

        punishment, using a proper instrument.  If, however, the

        punishment administered does not satisfy these criteria the

        teacher is liable in criminal proceedings and he or his

        employers are liable to a civil action for damages."

        The criminal law of assault sanctions corporal punishment

which is not reasonable, moderate or administered with a proper

instrument in a decent manner.  The least serious offence is common

assault pursuant to section 42 of the Offences against the Persons Act

1861.  Prosecutions are usually left to the aggrieved party.  The

maximum penalty for common assault is a £400 fine or two months'

imprisonment.  The 1861 Act provides for more serious offences of

assault occasioning actual or grievous bodily harm.  The maximum

penalty for causing actual bodily harm is five years' imprisonment.

        Physical assault is actionable in civil law as a form of

trespass to the person for which damages may be recovered.  Parents

are however entitled to use reasonable physical punishment on their

children and at the material time in the present case teachers were

deemed to be "in loco parentis" and thereby had a defence to civil

claims involving the moderate corporal punishment of children.  Since

the coming into force of sections 47 and 48 of the Education (No. 2)

Act 1986 on 15 August 1987 this defence no longer avails teachers in

State schools.  The present case, however, involves an independant

school, whose teachers may still administer reasonable corporal

punishment to pupils.  The concept of reasonableness permits the

courts to apply prevailing contemporary standards.

        An independent (or private) school is one at which full-time

education is provided for 5 or more pupils of compulsory school age,

not being a special school (i.e. one specifically organised to provide

education for pupils with learning difficulties) or a school

maintained by a public authority (section 114 (1) Education Act 1944).

        Independent schools must apply for registration to the

Registrar of Independent Schools, an officer of the Department of

Education and Science.  Registration is subject to the provision of

suitable safety, health and educational standards, but, the Government

contend, generally the State has no power to permit or prevent the

operation of independent schools.  Such schools are not subject to

such strict maintenance standards as State subsidised schools; nor

need they employ qualified teachers, follow the State teachers' salary

scales or prepare pupils for particular examinations.  They are free

to use corporal punishment within the bounds of the civil and criminal

law, except, since 1986, on pupils whose place is paid for by the

State under the Assisted Places Scheme.  Excessive corporal punishment

(involving successful criminal prosecutions) may provoke the Secretary

of State to use his powers under section 71 (1) of the Education Act

1944 to initiate a complaints procedure which may result in an

independent school being struck off the register, whereupon it becomes

a criminal offence to continue running the school.  No such issue has

arisen in the past ten years.

        The State provides little direct funding to independent

schools, except for three out of 2,341 schools, and the payment of

certain pupils' school fees in full or in part in some 226 independent

schools.  A total of 33,336 places are thus offered out of a total of

533,977 full time pupils in independent schools (January 1988

statistics).  However such schools enjoy charitable status and are

thereby relieved from the payment of certain rates and taxes.  Many

independent schools could not operate without such tax relief.  The

school in question, whilst having charitable status, receives no

direct financial support from the Government and has no pupils whose

fees are paid out of public funds.

        Parents have a duty under the Education Act 1944 to educate

their children, a duty reinforced by criminal sanctions.  They have

the choice whether to provide suitable education at home or in private

or State schools.  The Secretary of State has a duty under the same

Act to ensure certain educational standards.

COMPLAINTS

        The applicants allege that the second applicant suffered a

violation of Article 3 of the Convention in respect of his corporal

punishment at the Barnstaple school.  They complain that this

chastisement also violated their right to respect for private and

family life, ensured by Article 8 of the Convention, and that they had

no effective domestic remedies for these Convention claims, contrary

to Article 13.

PROCEEDINGS BEFORE THE COMMISSION

        The application was introduced on 17 January 1986 and

registered on 11 August 1987.  After a preliminary examination of the

case by the Rapporteur, the Commission considered the admissibility of

the application on 5 May 1988.  It decided to give notice of the

application to the respondent Government and to invite the parties to

submit their written observations on admissibility and merits,

pursuant to Rule 42 para. 2 (b) of its Rules of Procedure (former

version).  The Government lodged their observations on 27 September

1988, to which the applicants replied on 3 January 1989.

        On 9 May 1989 the Commission decided to adjourn examination of

the application pending developments in a similar application,

No. 14229/88 X and Y v. the United Kingdom.  On 6 October 1990 the

Commission decided to invite the parties to an oral hearing on

admissibility and merits on the same day as a hearing in the other

case.

        The hearing was held on 13 December 1990.  The Government were

represented by Mrs.  A. Glover, Agent, Foreign and Commonwealth Office,

Mr.  N. Bratza, QC, Counsel, and MM. A.D. Preston, L.B. Webb and A.W.

Wilshaw, advisers from the Department of Education.  The applicants

were represented by Mr.  M.D. Gardner, Solicitor, Messrs.  Binks Stern

and Partners, Ms.  J. Beale, Counsel, and Mr.  M. Rosenbaum, adviser.

The applicants also attended the hearing.

        At the hearing an original complaint under Article 14 of the

Convention was withdrawn by the applicants' representatives.

THE LAW

1.      The applicants complain that the corporal punishment of the

second applicant when he was a pupil at an independent school

constituted a violation of his rights under Article 3 (Art. 3) of the

Convention and a violation of both applicants' rights under Articles 8

(Art. 8) and 13 (Art. 13) of the Convention.

2.      The first preliminary question which the Commission must

examine is whether the United Kingdom's liability under the Convention

is incurred in the present case.

        The applicants contend that the United Kingdom is responsible

for acts which violate the Convention when they occur not only in

State schools but also in independent schools.  Independent schooling

is regulated by statute and the State ultimately has the power to

permit or prevent the operation of an independent school through the

registration process.  Moreover, there is a broad spectrum of legal,

practical and moral responsibility for independent schooling which

cannot exclude the use of corporal punishment where it allegedly

violates the Convention.

        The Government refute the applicants' contentions.  Whilst the

State does exercise a limited degree of supervision and control over

independent schools (as they do over many private bodies) it does not

have responsibility for every aspect of the conduct of such schools.

The disciplinary regime adopted at an independent school, including

whether corporal punishment is to be used and, if so, to what extent,

are entirely matters for the school.  Some such schools may lay

particular emphasis on standards of conduct and discipline, and

certain parents may look for these elements when choosing private

education for their children, as they are entitled to do under Article

2 of Protocol No. 1 (P1-2) to the Convention.

        The Commission considers 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.  Moreover, children subjected to,

or at risk of being subjected to ill-treatment by their parents,

including excessive corporal punishment, may be removed from their

parents' custody and placed in local authority care.  The Commission

also notes that the State obliges parents to educate their children,

or have them educated in schools, and that the State has the function

of supervising educational standards and the suitability of teaching

staff even in independent schools.  Furthermore, the effect of

compulsory education is that parents are normally obliged to put their

children in charge of teachers.  If parents choose a private school,

the teachers assume the parental role in matters of discipline under

the national law while the children are in their care, by virtue of

the "in loco parentis" doctrine.  In these circumstances the

Commission considers that the United Kingdom has a duty under the

Convention to secure that all pupils, including pupils at private

schools, are not exposed to treatment contrary to Article 3 (Art. 3)

of the  Convention.  The Commission considers that the United

Kingdom's liability also extends to Article 8 (Art. 8) of the

Convention in order to protect the right to respect for private life

of pupils in private schools to the extent that corporal punishment

in such schools may involve an unjustified interference with

children's physical and emotional integrity.

3.      The next preliminary question which the Commission must

examine is whether the first applicant may claim under Article 25

(Art. 25) of the Convention to be a victim of a violation of Articles

8 (Art. 8) and 13 (Art. 13) of the Convention.  The Government contend

that neither of the applicants may claim to be a victim of a

violation of the Convention as the first applicant may be deemed to

have accepted that her son would be corporally punished, as she knew

or ought to have known of the school's disciplinary policy when

contracting to send him there and agreeing that he be subject to the

normal rules of the school.  The first applicant's decision waived the

rights of both applicants in this matter.

        The applicants contend that the first applicant was not aware

of how widespread corporal punishment was in independent schools at

the material time and she had no reason to believe that it was being

used at the Barnstaple school, no mention of it having been made in

the school's prospectus.  Even if the first applicant were precluded

from claiming to be a victim of a violation of Articles 8 (Art. 8)

and 13 (Art. 13) of the Convention, it is submitted that her consent

did not waive the second applicant's rights.

        The Commission notes that it was common knowledge in the

United Kingdom that at the material time there was widespread use of

corporal punishment in private schools in England, and even in State

schools where it had not yet been abolished.  It seems that the second

applicant was a particularly sensitive child who would face

difficulties in being sent away from home for his education at such a

young age.  In these circumstances the first applicant could have been

expected to make careful inquiries about all aspects of his possible

treatment at the boarding school in question.  The fact that she

apparently did not do so precludes her from claiming under Article 25

(Art. 25) of the Convention to be a victim, either directly or

indirectly, of a violation of her Convention rights as a result of

the ensuing events at the school.  The first applicant's part of the

case must therefore be rejected as being incompatible ratione

personae with the provisions of the Convention, pursuant to Article

27 para. 2 (Art. 27-2) of the Convention.

        However, the second applicant is not precluded by his mother's

decision from claiming to be a victim of a violation of the

Convention, Article 1 (Art. 1) of the Convention extending the Convention's

protection to everyone within the jurisdiction of the High Contracting

Parties.  She cannot be said to have waived his rights for him under

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

his young age, there can be no question of his having consented to

the school's disciplinary regime or the actual punishment.

4.      A further preliminary question, raised by the respondent

Government, concerns the applicants' compliance with the domestic

remedies rule laid down in Article 26 (Art. 26) of the Convention.

The Government contend that the applicants failed to exhaust domestic

remedies because they made no attempt to institute a private criminal

prosecution or civil proceedings against the headmaster who inflicted

the punishment on the second applicant.  The applicants state that

there would have been no point in pursuing such proceedings as they

held no prospect of success.  The punishment would undoubtedly have

been held to have been moderate and reasonable under English law.

        The Commission agrees with the applicants' submission and

refers to its constant case-law that, according to the generally

recognised rules of international law, a person is not obliged to

pursue ineffective remedies, offering no prospect of success (cf.  Nos

9214/80, 9473/81 and 9474/81, Abdulaziz, Cabales and Balkandali v. the

United Kingdom, Dec. 11.5.82, D.R. 29 p. 176).  The Commission

therefore finds that the applicants have complied with Article 26

(Art. 26) of the Convention.

5.      On the substantive issues, the second applicant has complained

that he suffered degrading treatment contrary to Article 3 (Art. 3) of

the Convention when he was hit three times with a gym shoe by the

headmaster of his private school.  He alleges that the "slippering"

had a serious, lasting emotional impact on him with negative

repercussions for his private and family life.  This latter element

constituted an unjustified interference with his rights under Article

8 (Art. 8) of the Convention.  Finally, the applicant complains that

he had no effective domestic remedy for his Convention claims,

contrary to Article 13 (Art. 13) of the Convention.

        The Government contend that the chastisement of the second

applicant was moderate and reasonable, and fell far short of the

severe ill-treatment proscribed by Article 3 (Art. 3) of the

Convention.  Any emotional strain upon the second applicant around

that time could have  been caused by his inability to adjust to the

rigors of boarding school life rather than the punishment itself.

Moreover, there is no evidence that the punishment hindered or

affected the fulfilment of the applicant's private or family life,

contrary to Article 8 (Art. 8) of the Convention.  Finally, the Government

submit that the second applicant has no arguable claim of a breach

of the Convention, or, if he has, he anyway had adequate domestic

remedies under the civil and criminal law for the purposes of Article

13 (Art. 13) of the Convention.

        The Commission considers, in the light of the parties'

submissions, that this aspect of the case raises complex issues of law

and fact under the Convention, the determination of which should

depend on an examination of its merits.  The Commission concludes,

therefore, that this part of the application is not manifestly

ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of

the Convention. No other grounds for declaring it inadmissible

have been established.

        For these reasons, the Commission, by a majority,

        DECLARES INADMISSIBLE the first applicant's complaints;

        DECLARES ADMISSIBLE the second applicant's complaints,

        without prejudging the merits.

  Secretary to the Commission         President of the Commission

         (H.C. KRÜGER)                      (C.A. NØRGAARD)