Jeffery PATTINSON and Spencer FLACK
| Jurisdiction | England & Wales |
| Judge | Lord Justice Buxton,Lord Justice Rix,Lady Justice Arden |
| Judgment Date | 12 December 2002 |
| Neutral Citation | [2002] EWCA Civ 1820 |
| Docket Number | Case No: 2001/2600 |
| Court | Court of Appeal (Civil Division) |
| Date | 12 December 2002 |
[2002] EWCA Civ 1820
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION (ADMINISTRATIVE COURT)
(MR JUSTICE ELIAS)
Lord Justice Buxton
Lord Justice Rix and
Lady Justice Arden
Case No: 2001/2600
Mr Paul Diamond and Mr Bruno Quintaville (instructed by Messrs Windsor & Co for the Appellants)
Mr Hugo Keith (instructed by The Treasury Solicitor for the Respondent)
Introduction
This appeal from a decision of Elias J concerns the compatibility of section 548(1), as amended, of the Education Act 1996 with various provisions of the European Convention on Human Rights [the Convention]; principally, though not exclusively, article 9(1) of the Convention and article 2 of the First Protocol thereto. Section 548(1) provides that:
"Corporal punishment given by, or on the authority of a member of staff to a child for whom education is provided at any school….cannot be justified in any proceedings on the ground that it was given in pursuance of a right exercisable by a member of staff by virtue of his position as such."
Similar provisions had existed in earlier legislation. The significant change in those provisions, achieved by an amendment to the Education Act made by section 131 of the School Standards and Framework Act 1998, was to extend this prohibition even to staff in wholly private schools.
I first give an account, drawn from the evidence before the court, of the beliefs and practices of the appellants, teachers and parents at certain private schools, which they allege are interfered with by section 548 in breach of the Convention. Such an account is necessary, not merely as background to the appeal, but also because the claim to be entitled to the protection of the Convention depends on a precise understanding of what it is that is sought to be protected. Next, I set out the asserted interests of the parents who send their children to the schools, on the one hand; and of the teachers who work in and manage those schools on the other; and describe how those interests are interfered with by section 548 on its normal, domestic law, construction, applied without reference to the Convention. I then set out my conclusions as to whether section 548 does, in the case of either the parents or the teachers, infringe the rights under the Convention that they assert in this case; and give my reasons in support of those conclusions.
The appellants' beliefs and their practices
The appellants are teachers at, and parents who send their children to, a number of independent private schools established specifically to provide Christian education based on biblical observance. It is a feature of the regime administered by the teachers at all of these schools that in appropriate cases discipline will be enforced by the use of corporal punishment, an arrangement to which all of the parents agree.
It is the appellants' case that the use of corporal punishment is based upon Christian principles, though the nature, and the intensity, of the stated connexion differed between various of the appellants who had offered evidence to the court below. The essence of the appellants' beliefs was however summarised thus in their written submissions to this court:
It is a central tenet of the Christian religion that mankind is born with a heart inclined to evil; disciplining in the educational context is therefore vital. It is not an 'optional extra', but corporal punishment is expressly sanctioned, approved and may be necessary. Judicial notice can be taken that current views on the approach to educational requirements of children are contrary to orthodox Christian teaching.
In evidence, Mr Williamson, the headmaster the Christian Fellowship School, Liverpool, and the only deponent before Elias J, said:
All teaching staff, and all parents have made considerable sacrifices to place their children within a Christian education, which has strict observance to the Bible according to their religious beliefs. As part of our beliefs we believe it is an integral part of the teaching and education of children both by their parents, and by teachers, that physical discipline should be administered if and when appropriate. Obviously such punishment must always be within the law, and no person concerned with the case has ever been involved in any criminal offence involving the punishment of children, abuse or otherwise. Unfortunately, when putting these beliefs forward, we are often accused of abusing children which is wholly untrue without foundation and an attack on the exercise of our religious beliefs.
A more detailed account of the perceived justification for the practice was given by Mr KG Jones, the Principal of the Maranatha Christian School, who had given evidence in an earlier application to Strasbourg, which evidence was admitted before Elias J:
The Bible and a 1000 years of British history, that rests on it, provide significantly compelling reasons to use loving corporal correction to train a child. Train up a child in the way he should go and when he is old he will not depart from it [Book of Proverbs, 22.6]. Foolishness is bound up in the heart of a child, but the rod of correction will drive it far from him [Proverbs, 22.15]. Do not withhold correction from a child for if you beat him with a rod, he will not die. You shall beat him with a rod and deliver his soul from hell [Proverbs, 23.14]. In sum, it is an essential of the Christian faith that loving corporal correction be utilised in the development of Christian character in my pupils. Further, it is a basic of religious liberty that the parents whom I serve be permitted to delegate to the School the ability to train children according to Biblical principles.
Reliance was also placed before the judge, and before us, on Proverbs 13.24:
He who spares the rod hates his son, but he who loves him is diligent to discipline him.
It was the general view of the appellants that the justification for, or requirement of, their practices came from those scriptural sources. Thus Mr Williamson, in further evidence to which I shall have to return, said:
A fundamental reason for the child to be sent to a Christian school is for the maintenance of a disciplinary policy in accordance with the Book of Proverbs.
In that connexion, I of course accept and respect the observations of Rix and Arden LJJ that the content of a religious belief is not necessarily to be found solely in scriptural sources, but may be developed from those texts by interpretation and insight. But Mr Williamson's evidence would seem to demonstrate that, in this case, the religious obligation to employ corporal punishment that these appellants assert is found by them in the literal wording of the texts that they cite from the Book of Proverbs.
A number of statements were produced from parents explaining their support for the institution of corporal punishment. These varied in content and emphasis, but a consistent theme amongst them was that corporal punishment was "biblical". Many of them also expressed the view that corporal punishment works.
However, the actual practice in the schools in question is, on the evidence, somewhat different from what might be assumed to follow from these theological positions. Mr Jones explained that his school employed a very wide range of punishments, and that corporal correction was reserved for "some cases of a severe moral offence". The act of physical punishment is done lovingly, after full discussion, and only if the child "volitionally accepts the need for this correction". The infliction is done as correction, not as a punishment, and takes the form of a thin, broad flat paddle administered to both buttocks simultaneously in a firm controlled manner. The appellants were adamant that there was no question of beating in the traditional sense: "smacking" was closer to the mark (see Elias J's report of the submissions before him, at §4 of the judgment). And it was emphasised that nothing was done that fell within the prohibition on degrading treatment or punishment in article 3 of the Convention.
There was disagreement between the witnesses as to the desirability of punishment incurred for infractions of school discipline being administered not by the teachers but by the childrens' parents. This issue became one of some importance in the context of a particular line of authority in the ECtHR that I address at the end of this judgment. Mr Jones said that in his school the preferred course was for a parent to be invited in to the school to administer the punishment. It was only if that were not possible that the teachers took action, in the manner described in §10 above. However, in their further evidence, filed in relation to the line of authority just referred to, Mr Williamson and a Mr Sammons, the parent of a child at Mr Williamson's school, strongly repudiated any involvement of the parents in the infliction of the disciplinary measures. They took this view primarily because of the delay that would be involved between identification of the offence and the actual infliction of the punishment, a delay that they considered to be contrary to scriptural direction:
Because sentence against an evil work is not executed speedily, therefore the heart of the sons of men is fully set in them to do evil (Ecclesiastes chapter 8 verse 11).
Further, the evidence said that the school wished to follow a consistent, and public, disciplinary policy, which might...
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