Michael Segal looks at the complicated issue of a parents right to insist on corporal punishment for their children, in line with religous freedom

QUESTION:

Does the right to freedom of religion entitle teachers to inflict corporal punishment on children if parents authorise it?

ANSWER:

In England and Wales there is now a ban on the use of corporal punishment in all schools.

In R (Williamson) v Secretary of State for Education and Employment and Others [2005] 2 FLR 374, the House of Lords considered how to reconcile this ban with the rights of parents under the European Convention on Human Rights, as incorporated into English law by the Human Rights Act 1998.

What the parents claimed

The head teachers, teachers and parents of children at four independent schools claimed that the ban was incompatible with their right to freedom of religion, and freedom to manifest that religion in practice, rights guaranteed by Article 9 of the European Convention.

  • The Human Rights Act 1998 Section 13(1) says that if a court’s determination of any question arising under the Act might affect the exercise by a religious organisation of the Convention right to freedom of thought, conscience and religion, the court must have particular regard to the importance of that right.
  • The Convention (Article 2 of Protocol 1) says that no person shall be denied the right to education and that, in the exercise of any function the state assumes in relation to education, the state must respect the rights of parents to ensure such education conforms with their own religious and philosophical convictions.

Biblical justification

The claimants based their belief in corporal punishment on biblical passages — for example: ‘He who spares the rod hates his son, but he who loves him is diligent to discipline him’ (Proverbs 13:24).

They said that the use of ‘loving corporal correction’ in the upbringing of children was an essential of their faith, and that religious liberty required that parents should be able to delegate to schools the ability to train children according to biblical principles.

This belief was held genuinely and in good faith, the House of Lords said, stressing that each individual is at liberty to hold his or her own religious beliefs, however irrational they may seem to some.

When the parents authorised a child’s school to administer corporal punishment, they (the parents) were ‘manifesting’ their beliefs, so Article 9 applied.

Interference with religious freedom?

Was the prohibition against corporal punishment an interference with the parents’ freedom to manifest their religious beliefs?

The secretary of state argued that it did not constitute such an interference, because the parents were still entitled to administer corporal punishment.

But the House of Lords said that parental administration of corporal punishment at home at the end of the day would be significantly different from immediate teacher administration of corporal punishment at school, and concluded that there was an interference with the parents’ manifestation of their beliefs.

Was the interference justified?

It was certainly ‘a limitation prescribed by law’, as required by Article 9. But was it necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others?

Corporal punishment involves deliberately inflicting physical violence, and the legislation is intended to protect children against the distress, pain and other harm physical violence may cause.

The House of Lords concluded that the law in place to protect children against physical violence was appropriate: it was not disproportionate in its adverse effect on parents who believed that controlled administration of corporal punishment to a mild degree could be beneficial.

The legislature was entitled to take the view that, balancing the conflicting considerations, all corporal punishment of children at school was undesirable and unnecessary: other, non-violent means of discipline were available and preferable.

Parliament was entitled to decide that a universal ban was preferable to a selective ban and, the issue being one of broad social policy, it was pre-eminently suitable for decision by Parliament.

Michael Segal is a District Judge in the Family Divisïon of the High Court

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