May parents cane their children? Tlapak and Wetjen

In a word, “No”. [Warning: this post has a high “yuk” factor.]

The background

The applicants in Tlapak and Others v Germany [2018] ECHR 262 and Wetjen and Others v Germany [2018] ECHR 261 were several families belonging to the Twelve Tribes Church [Zwölf Stämme] living in two communities in Bavaria. They complained that their parental authority had been partially withdrawn and their children taken into care after press reports in 2012 that members of the Church punished their children by caning them. The reports were subsequently corroborated by video footage filmed in one of the communities with a hidden camera which showed various children between the ages of three and twelve being caned.

At the request of the child welfare services, the family courts brought interim custody proceedings regarding all the children in the Twelve Tribes communities, including the eight Tlapak, Pingen, Wetjen and Schott children. The courts had based their decisions on the press reports and statements by former members of the Church and they withdrew certain of the parents’ rights, including making decisions on their children’s place of residence, health and schooling. In September 2013, the welfare services took the communities’ children into care: some were placed in children’s homes, others in foster-families.

Relying in particular on Article 8 ECHR (private and family life), Article 9 (thought, conscience and religion) and Article 2 of Protocol No. 1 (education), the parents complained about the proceedings partly to withdraw their parental authority and the splitting-up of their families, that they had been prevented from raising their children in accordance with their religious beliefs and that their beliefs were the reason for the partial withdrawal of their parental authority. They also alleged that the proceedings had been unreasonably long, contrary to Articles 6 and 8.

The judgment

On the issue of corporal punishment, the ECtHR agreed with the German courts that the risk of systematic and regular caning of children justified withdrawing parts of the parents’ authority and taking the children into care. Their decisions had been based on a risk of inhuman or degrading treatment prohibited by Article 3 ECHR. Moreover, the German courts had given detailed reasons as to why they had had no other option available to them to protect the children. In particular, the parents had remained convinced during the proceedings that corporal punishment was acceptable and, even if they had agreed to not to cane their children, there had been no way of ensuring that the children would not be caned by other members of the community.

As to the length of the proceedings, the Court rejected as inadmissible the Tlapak and Pingen parents’ complaint that the main custody proceedings had been excessively long. The proceedings had taken one year and 11 months, during which time the Family Court could not be held responsible for any particular delays. On the contrary, the Family Court had been active: it had commissioned a psychologist’s opinion, heard the applicants, their children and further witnesses and had led negotiations for a settlement between the applicants and the youth office. In the Wetjen and Schott families’ cases, the Government had recognised that the length of the interim proceedings had violated Article 8 and had proposed compensation and the Court decided to strike those parts of the applications out of its list.

On the issues of withdrawal of parental authority, the decisions to withdraw some parental rights had interfered with the applicants’ right to respect for their family life. However, the decisions, based in national law and on the likelihood that the children would be caned, had been aimed at protecting the “rights and freedoms” of the children. Furthermore, the Court was satisfied that the decision-making process in the cases had been reasonable. The applicants, assisted by counsel, had been able to put forward all their arguments against the withdrawal of parental authority. The courts had had the benefit of direct contact with all those concerned and had diligently established the facts. Even though the Tlapaks and Pingens had withdrawn their consent for the psychologists’ opinion to be used as evidence in the proceedings, the Court considered that it had been justified for the domestic courts to use the opinion, given the general interest in the effective protection of children in family court proceedings. It also found it acceptable that the family courts had not waited for the conclusions of the psychologist about the Wetjens and the Schotts in the interim proceedings, given the need to act quickly in such matters.

Taking children into care and splitting up a family was a very serious interference with the right to respect for family life and should only be used as a last resort; however, the domestic courts’ decisions had been based on a risk of inhuman or degrading treatment contrary to Article 3 ECHR. The courts had taken an individualised approach, taking into account whether each child was of an age at which he or she was at risk of corporal punishment. The domestic courts had also given detailed reasons – with which the ECtHR agreed – as to why there had been no other options available to protect the children. Moreover, because the applicant parents had an unshakeable dogmatic belief in caning as an appropriate way of bringing up their children, any assistance by the youth office – such as training the parents – could not have protected the children effectively.

The Court noted in Tlapak that:

“In order to avoid any risk of ill-treatment and degrading treatment of children, the Court considers it commendable if member States prohibit in law all forms of corporal punishment of children. In that regard, it notes that Germany has already established a right for children to have a non-violent upbringing and has prohibited physical punishment, psychological injury and other degrading measures [90].

The Court notes that member States should enforce legal provisions prohibiting corporal punishment of minors by proportionate measures in order to make such prohibitions practical and effective and not to remain theoretical. Therefore, the Court finds that the risk of systematic and regular caning constituted a relevant reason to withdraw parts of the parents’ authority and to take the children into care” [91].

The domestic courts had therefore struck a proper balance between the interests of the applicant parents and the best interests of their children in fair and reasonable proceedings in which each child’s case had been looked at individually; and the domestic authorities had not exceeded their margin of appreciation.

6 thoughts on “May parents cane their children? Tlapak and Wetjen

  1. This is what happens, when the irresistable force of a doctrinaire state, in this case, one (Germany) on the rebound from, and clearly over-compensating for, a past about as shamefully authoritarian a nation’s past can get, which codifies in its legislation a simply *idiotic* ban of doting parents’ physical punishment of their own children using humane and proportionate weapons, meets the irrestible object of parents who believe the old ways were right all along, and simply refuse to lie to save their families from nationalisation, in order for the state to asset-strip the families concerned and to hive them off in pieces to outside bidders.

    As far as I can remember, I have never punished a child formally, physically, using a weapon, myself. But I must speak now in defence of those who find formality appealing, even in the punishment of children, if only in defence of the principle of subsidiarity. The level at which family rules and the punishments for children breaking them ought to be legislated, is surely the family itself, not the state, nor the Convention community of states.

    Strasbourg has given Germany too great a margin of appreciation in these cases, to deny the plaintiff families affected the margin of appreciation that the subsidiarity doctrine surely teaches is theirs alone. That misguided jurisprudence was more cruel to the children, and others like them, than the parents would have been, given a free hand, I venture.

    My rule of thumb, as a dad, has always been to use the least cruel punishment, preferably none at all, in order to incentivise safe behaviour, as permitted by family rules, on the part of my children.

    Psychological punishments, like the “naughty step” and “grounding”, can, in any case, be more cruel than the short, sharp shock of a slight physical punishment. In any case, merely psychological punishments to which offending children sentenced are toothless, unless backed up by the threat to smack (for example) toddlers who won’t stay on the naughty step when sentenced to, or to wallop and man-handle teenagers who climb from bedroom windows down drainpipes during the mating season, to galavant abroad, when they are lawfully grounded.

    The first linked-to ECtHR judgment in the first paragraph of this piece is therefore one of the most sinister judgments of any court that I have ever read.

    Common sense ought to tell even the worst moron who’d gravitate towards a career in social services, even if he lived in modern Germany, that a smack that doesn’t injure, is a dickens-of-a-sight less cruel, for a child, than being grounded for a week, or denied the opportunity to watch his or her favourite television programme, even one episode of it.

    But, allowing parents physically to punish their own naughty children could be dangerous, I imagine some saying, less a palm turns out to be too blunt an instrument to hurt, without the risk of broken bones or ruptured internal organs, That is indeed a real danger.

    UNLESS, that is, parents are obliged (as taught in the bible) to use low calibre weapons (“rods” – i.e. sticks), so that the short-lived pain to the skin of the child deserving of punishment is enhanced, whilst the risk of injury to his or her bones or internal organs is eliminated completely.

  2. Parents who feel “obliged” by the repeatedly translated, tribal laws of a long vanished bronze or early iron age cult need to “get a grip” and deal with their children in the light of 21st Century knowledge. That wretched collection of barbaric writings is the last thing I would resort to. I have two fine children each of which has reared two fine children – with not a Bible in sight in any of our homes.

    • No doubt: but the activities of loony religious zealots are not a conclusive argument against “religion” – there are nutty and/or abusive atheists and agnostics as well. That said, however, abuse is far, far worse when it is carried out on religious grounds – or so it seems to me.

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