What are the practical implications of abolishing corporal punishment and how does such change legally alter the status of the teacher and psychologically adjust the way we view children in the classroom? Ten years on, lessons have been learnt in Britain about the decisions to remove physical punishment from the repertoire of sanctions available to teachers. Now that South Africa has joined the league of nations who reject corporal punishment of students, it too will face the reality of what abolition means in practice and the challenges presented to educationists and policy makers as they depart from traditions and custom. Finally, a movement towards abolition also causes us to consider how we perceive children not only in schools but in society in general, and the issues which emerge concerning the concept of children’s rights.
Corporal punishment was traditionally used in Britain as a disciplinary sanction and its removal from the classroom through legislation in 1986 caused schools in general to provide alternative punishment. Teachers specifically have been made to consider their attitude towards physical punishment and their position vis-à-vis their students. Impetus for change was provided by Britain’s membership of the Council of Europe and particularly the fact that she is a signatory to the European Convention on Human Rights and Fundamental Freedoms (1950). In order to reconcile domestic law with this European Treaty, abolition was the only acceptable possibility and Britain thereby came into line with the rest of Europe which is a ‘no-smacking zone’.
During the last decade, parents of children who received or were threatened with physical chastisement in British-maintained state schools have lodged complaints in Strasbourg (the seat of the European Court), availing themselves of this form of redress after having failed to gain satisfaction through the domestic courts. Invariably, they have relied on two specific articles in the European Convention on Human Rights:
No one shall be subjected to torture or to inhuman or degrading treatment or punishment (Article 3).
No person shall be denied the right to education. In the exercise of any functions which it assumes in relation to education and teaching, the State shall respect the rights of parents to ensure such education and teaching in conformity with their own religious and philosophical convictions (Article 2 of Protocol No 1).
It is unlikely that the framers of the Convention in the 1940s conceived of these two provisions as having application to the issue of corporal punishment in schools, but the treaty possesses a dynamic character which permits it to be tailored to contemporary norms and values. The British corporal punishment cases of the 1980s demonstrate this persuasively as the European Court was prepared to consider the use of physical chastisement as akin to “degrading treatment”.
The most important cases were Tyer v UK (1978), concerning the judicial corporal punishment of a 15- year-old-boy resident in the Isle of Man, and Campbell and Cosans v UK (1982), which involved the threat of corporal punishment in Scotland. Collectively, these cases caused the British government to assume a defensive posture over physical chastisement. Furthermore, the government’s loss of these two early corporal punishment cases in the European Court encouraged other parents to petition the European Court, thereby causing further political cost and financial burden to the government and ultimately provoking legislative change. Also, a pressure group responsible for keeping the issue in the public arena and supporting the litigant parents was the Society of Teachers Opposed to Physical Punishment (STOPP). Significantly, the jurisprudence emerging from the Court centred on respect for parents’ “philosophical convictions” against corporal punishment, protecting children from “degrading treatment”, and “the right to education”. Litigants persuasively argued that corporal punishment in schools was tantamount to “degrading treatment” in this day and age. Furthermore, that by insisting on this discipline sanction, schools were breaching parents’ “philosophical convictions” which were clearly opposed to physical chastisement of their children. Finally, in cases where schools refused to re-admit children who had failed to accept corporal punishment, it was held that ‘the right to education’ was also violated.
The abolitionist measures contained in the Education Act 2 of 1986, clumsily states that:
Where in proceedings, it is shown that corporal punishment has been given to a pupil by or on the authority of a member of staff, giving punishment cannot be justified on the ground that it was done in pursuance of a right exercisable by the member of staff of his position as such.
British teachers’ common law right to use corporal punishment by virtue of their position “in loco parentis” has not been abolished but has, nevertheless, been severely faltered. Effectively, our teachers no longer invoke as a defence in the event of litigation, their status of “in loco parentis” if they choose to use physical chastisement. Exceptions are countenanced for averting immediate danger of injury to persons or property. This legislation is applicable to children aged 8 to 15 in schools funded by the state or those in private schools whose fees are subsidised by the government. The momentum to extend abolition to private schools is being maintained by child right advocates. Further, whilst seemingly defunct as a pressure group since it has achieved its central objective, STOPP is now providing moral support to families and individual children in the private school sector in this country.
A number of lessons have been learnt as a result of Britain’s decision to abolish corporal punishment. These include the following which have a significant bearing on the situation in South Africa:
1.Teachers can no longer assume that by virtue of their position in loco parentis or by their status as teachers, they can implement corporal punishment as a disciplinary sanction with impunity.
2. The cane was cheap, its replacement is not! In cold terms, corporal punishment was quick, time-efficient and cost effective. Alternative models of discipline are high in terms of resourcing and time. Substantial efforts need to be made to provide teachers, even the most experienced of them, with a range of alternative strategies!
3. Schools may not wish to make alternative investment and instead utilise the exclusion procedure, not necessarily as a last resort, but an early resort. However, exclusion on a large scale creates other problems.
4. Ironically, the courts’ impact on removing corporal punishment from state schools may unwittingly lead to violation of another enshrined right for students, the right to education!
5. In the absence of South African legal authority on the abolition of corporal punishment, foreign judgments and international instruments dealing with corporal punishment will no doubt influence South African court cases on corporal punishment, should they arise.
It has been ten years since corporal punishment was effectively abolished in British state schools. Since that time, teachers have been forced to look at alternative sanctions, often exploiting pastoral care models which require high levels of staffing, space and time. For some schools, there has been a tendency to utilise the school’s exclusion to avoid this large outlay of resources; ironically leading to perhaps a greater breach of human rights, that of the right to education. This irony has been lost on children’s rights advocates who are seeking to challenge what they perceive as a flagrant denial of human rights. Beyond this irony lie philosophical concerns about the use of force. A conflict lies in the dichotomy inherent in this discussion, centring first on children’s rights to physical integrity, so clearly echoed in the European Court’s judgments and replete in the writing of theorists like Newsom and Newsom (1986), Newell (1989) and Leach (1993). This is reinforced by the move towards restricting the use of physical chastisement by parents, successfully enacted through statute law in Denmark, Norway, Sweden and Finland, and more recently by the Scottish Law Commission.
Secondly, there is a perceived need for greater control of students at a time of public concern over juvenile crime which reached moral outrage in Britain in the aftermath of the killing of 3-year-old James Bulger by two boys aged 11 and 12. Typically, the school is expected to respond to the needs of society as an enforcer of discipline yet, since it does not operate in a vacuum apart from society, it cannot perform what the law does not allow. The teacher is thus left to function within these philosophical opposing views of increased protection in school for children and increased protection from children! Only the next few years will tell whether both needs can be addressed adequately in order to preserve this delicate balance of rights.
Campbell and Cosans v UK (1982), European Court of Human Rights, Series A, No. 48.
Costello-Roberts v UK (1993), European Court of Human Rights (89.1991/341/414).
Council of Europe (1972). Collected Texts on the European Convention on human Rights and fundamental Freedoms, 8th edition, Strasbourg: Council of Europe.
Education Act 2 of 1986.
Newsom J & Newsom E. 1986. The extent of parental chastisement in the UK. London: Approach.
Newell P. 1989. Children are people too: the case against physical chastisement. London: Approach.
Leach P. 1993. Should parents hit their children? The Psychologist, May:216-220.
Scottish Law Commission. 1992. Report on Family Law. 135.
Society of Teachers Opposed to Physical Punishment. 1985. Newsletter (July).
Tyer v UK (1978) European Court of Human Rights, Series A, No. 26.
Dr Marie Parker-Jenkins
University of Nottingham, UK
The corporal punishment debate has once again come under the spotlight with the pending European Court case involving a young boy who has instituted an action against his parents for smacking him. The question of whether parents should be prohibited from using corporal punishment under human rights law is highly contentious and is raising serious concerns about parental rights and authority. However, it will be at least two years before we know the outcome of this case. Editor