THE CASE LAW

Unfortunately, while the international human rights provisions may seem to prohibit CP in any situation, the case law seems to suggest otherwise.

In the case of Tyrer v. UK (11) and Costello-Roberts v. UK (12), the European Court of Human Rights (“the Court”) dealt with CP in school. It is clear that in these decisions, the Court is indirectly stating that there will be some situations where the CP inflicted on a child is not a violation of Article 3 – it all depends on the facts of each case.

In the case of A v. UK (13), the Court had the opportunity to consider the application of Article 3 of the European Convention with regards to CP at home. In para 20 of the judgment, it was held that the “…ill-treatment must attain a minimum level of severity if it is to fall within the scope of Article 3”. In para 21, the Court held that the CP in that case “…reaches the level of severity prohibited by Article 3”.

Unfortunately, the Court, in finding a violation of Article 3 did not proceed further to consider Article 8 i.e. “Everyone has the right to respect for his private …life”.

Although the Court found a violation of Article 3, it is submitted that the main text of the judgment seem to imply that Article 3 does not prohibit CP in any context. In other words, the Court is saying in the cases referred above that there are some levels of severity in CP that does not fall within the scope of Article 3.

In view of the domestic and international provisions referred to above, it is not surprising that those who are opposed to CP on children are demanding that international human rights law be specific when prohibiting CP on children in whatever situations. The question one may ask then is whether this demand is justified.

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(11) (1978) 2 EHRR 1
(12) (1995) 19 EHRR
(13) (1999) 27 EHRR 611