Protocol 1 (2)

No person shall be denied the right to education. In the exercise of any functions which it assumes in relation to education and to teaching, the State shall respect the right of parents to ensure such education and teaching in conformity with their own religious and philosophical convictions.

The progress to a ban on corporal punishment in schools began when Mrs. Costello and Mrs. Campbell from Scotland complained to the European Court of Human Rights that their sons’ schools’ corporal punishment policy violated their own Protocol 1(2) right for their sons’ education to conform with their own philosophical convictions”s. The court agreed and the UK Parliament Education Act (2) 1986 prevented corporal punishment in state schools and to publicly funded children in private schools.

Soon after the Government accepted the European Court’s ruling that states have a positive (proactive) obligation to identify and ban corporal punishment that broke the inviolable Article 3 prohibition on inhuman and degrading punishment. The criteria included the reason for punishing, its nature, manner and circumstances, the time after the event, people involved and its mental and physical effects. This was an early example of Strasbourg’s positive obligation policy. Positive-(proactive)-obligations

Finally the Children Act 2004 banned parents from inflicting actual bodily harm (the lower level of bodily harm) on their children.

Then in 1999 teachers at four independent Christian schools took a case to court that smacking for indiscipline gave a clear signal that the latter would not be accepted. They argued that English common law gave parents the right to discipline their children and that they could delegate this right to teachers. The case came to the HOuse of Lords where Department for Education argued on behalf of the government that however lovingly administered the intentional and formal infliction of violence by an adult on a child in an institutional setting was a violation of the child’s Article 8 right to human dignity.

The court accepted that the Children Act amendment did interfere with parents’ rights to manifest their own belief in physical discipline and for education sympathetic to that belief. However there are non-violent means of discipline and the judges ruled that the state is entitled to interfere with qualified rights in the interests of a vulnerable class of human beings, namely children.