PROCEDURE

The case was referred to the Court by the European Commission of Human Rights (“the Commission“) on 7 December 1991, within the three-month period laid down in Article 32 para. 1 and Article 47 (art. 32-1, art. 47) of the Convention. It originated in an application (no. 13134/87) against the United Kingdom of Great Britain and Northern Ireland lodged with the Commission under Article 25 (art. 25) on 17 January 1986 by two British citizens, Mrs Wendy Costello-Roberts and her son Jeremy. The expression “the applicant“ hereinafter designates Jeremy, his mother’s complaints having been declared inadmissible by the Commission (see paragraphs 22-23 below). The Commission’s request referred to Articles 44 and 48 (art. 44, art. 48) and to the declaration whereby the United Kingdom recognised the compulsory jurisdiction of the Court (Article 46) (art. 46). The object of the request was to obtain a decision as to whether the facts of the case disclosed a breach by the respondent State of its obligations under Articles 3, 8 and 13 (art. 3, art. 8, art. 13) of the Convention.

In response to the enquiry made in accordance with Rule 33 para. 3 (d) of the Rules of Court, the applicant stated that he wished to take part in the proceedings and designated the lawyers who would represent him (Rule 30).

On 24 January 1992 the President of the Court decided that, pursuant to Rule 21 para. 6 and in the interests of the proper administration of justice, this case and the case of Y v. the United Kingdom should be heard by the same Chamber. Following a friendly settlement, the case of Y was struck out of the list by a judgment dated 29 October 1992 (Series A no. 247-A).

The Chamber to be constituted for this purpose included ex officio Sir John Freeland, the elected judge of British nationality (Article 43 of the Convention) (art. 43), and Mr R. Ryssdal, the President of the Court (Rule 21 para. 3 (b)). On 24 January 1992 the President drew by lot, in the presence of the Registrar, the names of the other seven members, namely Mr J. Cremona, Mr Thór Vilhjálmsson, Mr F. Gölcüklü, Mr R. Macdonald, Mr R. Bernhardt, Mr F. Bigi and Mr L. Wildhaber (Article 43 in fine of the Convention and Rule 21 para. 4) (art. 43). Subsequently Mr F. Matscher, substitute judge, replaced Mr Cremona, whose term of office had expired and whose successor had taken up his duties before the hearing (Rules 2 para. 3 and 22 para. 1).

Mr Ryssdal assumed the office of President of the Chamber (Rule 21 para. 5) and, through the Registrar, consulted the Agent of the Government of the United Kingdom (“the Government“), the Delegate of the Commission and the applicant’s representative on the organisation of the procedure (Rules 37 para. 1 and 38). In accordance with the order made in consequence, the Registrar received, on 23 June 1992, the applicant’s memorial and, on 22 July, the Government’s. By letter of 17 August 1992, the Secretary to the Commission informed him that the Delegate would submit his observations at the hearing.

In accordance with the decision of the President, the hearing took place in public in the Human Rights Building, Strasbourg, on 23 September 1992. The Court had held a preparatory meeting beforehand. There appeared before the Court:

for the Government Mrs A. Glover, Legal Counsellor, Foreign and Commonwealth Office, Agent, Mr N. Bratza, Q.C., Counsel, Mr A. Preston, Department for Education, Mr S. Dance, Department for Education, Advisers;

for the Commission Sir Basil Hall, Delegate;

for the applicant Ms J. Beale, Barrister-at-Law, Counsel, Mr M. Gardner, Solicitor, Mr M. Rosenbaum, Adviser. The Court heard addresses by Mr Bratza for the Government, by Sir Basil Hall for the Commission, and by Ms Beale for the applicant.

AS TO THE FACTS

I. THE PARTICULAR CIRCUMSTANCES OF THE CASE

In September 1985 Mrs Costello-Roberts sent the applicant, who was then aged seven, to an independent boarding preparatory school in Barnstaple, Devon. The school had approximately 180 pupils, none of whose fees were paid out of public funds, and received no direct financial support from the Government.

In the school’s prospectus it was stated that a high standard of discipline was maintained, but no mention was made of the use of corporal punishment. Mrs Costello-Roberts had made no enquiry about the school’s disciplinary regime and did not at the outset make known her opposition to corporal punishment. The school in question operated a system whereby such punishment was administered upon acquisition of five demerit marks. On 3 October 1985 the applicant received his fifth demerit mark for talking in the corridor. The other demerit marks were for similar conduct and for being a little late for bed on one occasion. Having discussed the matter with his colleagues, the headmaster decided that the only answer to the applicant’s lack of discipline, about which he had received three warnings from the headmaster, was to give him three “whacks“ on the bottom through his shorts with a rubber-soled gym shoe. He so informed the applicant on 8 October.

The punishment was administered by the headmaster three days later, eight days after Jeremy had received his fifth demerit mark. No other persons were present. Before the Strasbourg institutions it was alleged by the applicant’s counsel that he was told not to inform his parents about his punishment, but this was denied by the school. In any event, in a letter to his mother post-marked 21 October 1985, he wrote “come and picke me up I have had the wacke“. He continued to write to her in some distress about the “slippering“. On 4 November 1985 the school confirmed to her that her son had been slippered; according to her - though this too was contested by the Government - the school had initially denied the fact. On 5 November, Mrs Costello-Roberts wrote to the Governors of the school to express her “disquiet“ and “grave concern“ about the use of such a “barbaric practice“. She acknowledged that the “growing problems“ began after the first week of term and said that “we made it very clear to the staff ... that we considered his behaviour to be reflecting signs of an upset ...“. The headmaster in his turn wrote to the Chairman of the Board of Governors on 7 November, stating that the applicant’s problems were due to a lack of discipline; he refused to accept authority and his behaviour was disrupting the life of the school community. Mrs Costello-Roberts also wrote to the headmaster to inform him that she did not want her son to be corporally punished. On 16 November 1985 he replied as follows: “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.“

The applicant’s mother complained to the police some time between 4 and 16 November 1985, but was told that there was no action they could take without any visible bruising on the child’s buttocks. A complaint by her to the National Society for the Prevention of Cruelty to Children received a similar response.

The staff were said to have noticed an almost immediate improvement in the boy’s behaviour after the corporal punishment, but considered that the subsequent contact that he had had with his parents during the half-term holiday had caused him to revert. The headmaster was of the opinion that the 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“. It was argued in Strasbourg, on behalf of the applicant, that he had been extremely disturbed by the slippering, which turned him from a confident, outgoing seven-year-old into a nervous and unsociable child. The Government contended that, according to their information, any change in the child’s character during his time at the school was more likely to have been caused by his inability to adjust to the constraints of boarding-school life than the “slippering“. In their view, the above-mentioned correspondence between the mother, the school Governors and the headmaster reflected the boy’s adaptation difficulties.

The applicant left the Barnstaple school in November 1985 and entered a new school in January 1986. It reported in July 1986 that he had “calmed down considerably“ since his arrival, when he had been unsociable, nervous and quite aggressive.