Family Law

This commentary analyses the decision of the Court of Appeal in R (Williamson) v Secretary of State for Education and Employment, currently under appeal to the House of Lords. The Court of Appeal unanimously confirmed that Article 9 of the European Convention for the Protection of Human Rights and Fundamental Freedoms 1950 (European Convention) is not violated by a statutory provision banning corporal punishment in schools, even where those schools are organised around a Christian ethos based on a belief in the necessity of physical correction of children. While the Court of Appeal did not depart from the interpretation of Article 9(1) advanced by the European Court of Human Rights (European Court), it did take the strictest possible view of the case-law, and thereby gave a restrictive interpretation of the scope of freedom of conscience and religion. The court did not hear argument on Article 9(2) of the European Convention, concerning reasonable limitations to freedom of conscience and religion. In failing to address this issue, however, the court failed to consider issues of children's rights which are essential to any discussion of corporal punishment policies. This note compares the approach of the Court of Appeal with that of the South African Constitutional Court in a similar case, and finds that the South African Court's approach is to be preferred as taking greater account of children's rights.