Clíodhna Kelleher considers the recent judgment in R (Isherwood) v Welsh Ministers, in which the High Court held that there was no parental right to withdraw children from relationships and sexuality education.

Shortly before Christmas judgment was handed down in R (Isherwood and ors) v Welsh Ministers, [2022] EWHC 3331 (Admin). The case concerned the existence or otherwise of a parental right to withdraw children from mandatory relationships and sexuality education (“RSE”) introduced in Wales by the Curriculum and Assessment (Wales) Act 2021. The claimants had previously unsuccessfully sought an injunction to prevent the roll-out of the policy in Wales. At the substantive hearing, the claimant-parents advanced wide-ranging arguments against the legality of guidance documents issued under the 2021 Act, including:

• The existence of a common law right of “excusal” (i.e., a right to withdraw their children from lessons) such that statements in the relevant guidance to the effect that the right of excusal had been removed were wrong in law;
• The statutory right of excusal under the Education Act 1996 had not been appropriately abrogated by the 2021 Act;
• The absence of a right of excusal constituted a breach of Article 2 Protocol 1 of the European Convention on Human Rights (“ECHR”) (“A2P1”);
• The relevant guidance was in breach of Article 9 ECHR.

The claim was dismissed on all grounds. Steyn J rejected the existence of a common law right of excusal and found that the statutory right of excusal in section 405 of the Education Act 1996 had been abrogated by the 2021 Act. She further determined that the claim in relation to A2P1 was misdirected, aimed as it was at the guidance issued under the 2021 Act and not to the Act itself, and agreed in any event with the Defendant’s submission that the guidance did not constitute a breach of A2P1. The claim relating to Article 9 ECHR was rejected on the basis that A2P1 constituted lex specialis in respect of the issues raised in the claim, and that no separate issues arose under Article 9.

The judgment provides a comprehensive overview of the ECtHR’s approach to the interpretation of A2P1 in the context of parental philosophies and convictions ([169] – [195]), culminating in a succinct 10-point articulation of the primary principles by Steyn J at [198] that will, no doubt, prove indispensable to practitioners confronting similar issues in the future.

The judgment also contains an extensive articulation of the history of compulsory education, which may be of interest to those with an eye for legal history and the shifting sociology of education and gender relations, including consideration of the infamous 1833 case of Agar-Ellis, in which the Court of Appeal determined that there could be no question of any conflict of rights between a husband and wife as to the education of children given the husband’s position as “master of his own house, as king and ruler of his own family”. Unsurprisingly, the claimants’ contention that Agar-Ellis stood for the principle that a parent had a right on par with the right to life, liberty and property to educate his or her children was received unsympathetically by the Court (at [109]).

The full judgment is available here.

In this blog post, Imogen Proud highlights the recent Administrative Court judgment, R (L) v Devon, which may be of particular interest to readers of this blog as it concerns timescales in relation to Education Health and Care Plans (“EHCPs”).

In a judgment handed down on 8 March 2022, Mrs Justice Foster considered the obligations imposed on local authorities by the Special Educational Needs and Disability Regulations 2014 (the “Regulations”), and specifically whether there was a fixed timeframe in respect of steps in the amendment of a plan where a local authority accepts that amendment is necessary.

The Court held that the Regulations:

• impose an obligation on local authorities to notify parents of the substance of proposed amendments to their child’s EHCP at the same time as notifying them of an intention to amend the plan; and
• oblige local authorities to issue a final amended plan within 12 weeks of the annual review meeting.

The judgment is available here.

This blog post links to an article written by Imogen Proud, which was first published by LexisPSL on 16 September 2021, about the recent judgment in SS Education v CCP Graduate School Ltd.

The High Court dismissed a claim for recovery of tuition fees which the Secretary of State for Education (via the Student Loans Company) had paid to an Alternative Education Provider which enrolled students onto one particular course but registered them to the relevant awarding body for a different type of qualification. The case is of substantive significance as it clarifies the parameters of use of the Education (Student Support) Regulations 2011 (the Regulations) for recovering overpayments of fee loans. The judgment also clarifies the appropriate sanctions for failure to meet the requirements of course designation under DfE issued guidance entitled ‘Alternative Providers: Specific Course Designation. Guidance for Providers: Criteria and Conditions’ (the 2013 Guidance).

The full article can be read here.

Introduction

In this blog post, Imogen Proud considers the nature and scope of the right to education under the Human Rights Act 1998 (“HRA 98”).

The right to education is protected by Article 2, Protocol 1 (“A2P1”) found within Schedule 1 HRA 98.

That article provides:

“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.”

What is protected by the first sentence of A2P1?

• The first sentence of A2P1 protects the right of an individual to an effective education.
• The right to an effective education belongs to the student, rather than to their parent or guardian.
• It covers primary education (Sulak v Turkey, Commission decision, No 24515/94), secondary education (Cyprus v Turkey, No. 25781/94, 10 May 2001), higher education (Leyla Sahin v Turkey no. 44774/98 ECHR 2005-XI (“Sahin”)) and specialised courses. Adults as well as children enjoy the right.
• It is a right guaranteed equally to pupils in State and independent schools, without distinction: Costello-Roberts v United Kingdom, No. 13134/87, 25 March 1993. The State cannot delegate to private institutions or individuals its obligations to secure the right to education for all.
• A2P1 gives a right to access the UK’s existing educational institutions. It does not require the government to provide or subsidise any specific type of education or to establish new types of education: Belgian Linguistic (1968) 1 EHRR 252 (“Belgian Linguistic”).
• A2P1 does not only mean the State must refrain from interference in the right; it has a positive obligation to ensure respect for this right.
•  A2P1 also gives a right to obtain official recognition when studies have been completed: Belgian Linguistic.
• The government is allowed to regulate the way education is delivered. Indeed, A2P1 “by its very nature calls for regulation by the state”: Belgian Linguistic. For example, the State can pass laws making education compulsory or imposing health and safety requirements on schools.
• The right to education is not an absolute one. Limitations are permitted by implication given that the right by its very nature calls for regulation by the State: Sahin. However, any restrictions which the State imposes must never injure the substance of the right to education nor conflict with other Convention Rights: Belgian Linguistic. They must be foreseeable for those concerned and pursue a legitimate aim, although the State is not limited to an exhaustive list of “legitimate aims” as under Articles 8 to 11: Sahin. The means must be reasonably proportionate to the legitimate aim: Sahin.
• The right to education does not in principle exclude disciplinary measures including suspension or exclusion from an educational institution in order to ensure compliance with its rules: Sahin. If a pupil is excluded from school the exclusion must be both necessary and proportionate.
• Schools are allowed to use admission policies so long as they are objective and reasonable. In R (Hounslow London Borough Council) v School Admissions Appeal Panel for Hounslow London Borough Council [2002] EWCA Civ 900; [2002] 1 W.L.R. 3147 the Court of Appeal held that an admissions policy which prioritised children within a school’s catchment area over those who had a sibling at the school did not violate the right to education. The Court emphasised that, where applications exceed the number of school places, admissions authorities have to use a fair process to make practical, objective decisions.
• Likewise, entrance examinations to identify the most meritorious students will not violate the right to education where they are proportionate and designed to ensure a minimum education level: Tarantino v Italy, Nos 25851/09, 29284/09, 64090/09, 9 September 2013.
• In R (Tigere) v Secretary of State for Business, Innovations and Skills [2015] UKSC 57; [2015] 1 W.L.R. 3820 the Supreme Court held that whilst the application of a ‘lawful ordinary residence’ criterion for obtaining a student loan was compatible with the appellant’s Convention Rights, the requirement that an applicant be ‘settled’ in the UK, in the sense of having indefinite leave to remain, was incompatible with Article 14 read with A2P1.
• Prisoners continue to enjoy the right to education whilst in prison (meaning the right to access the educational provision which already exists within the prison): Velyo Velev v Bulgaria, No. 16032/07, 27 August 2014.
• A delay in readmission to an educational establishment after the ill-health of a student can violate A2P1 where the delay is not proportionate to the legitimate aim pursued: Memlika v Greece, No. 37991/12, 6 January 2016.

What is protected by the second sentence of A2P1?

• Parents have a right to have their religious and philosophical beliefs respected during their children’s education. This right belongs to the parent rather than the student.
• This is not an absolute right. As long as these beliefs are properly considered, an education authority can depart from them provided there are good reasons and it is done objectively, critically and caters for a diversity of beliefs and world views.
• Parents may not refuse a child her right to education on the basis of their convictions.
• The right does not prevent the State from setting and planning the school curriculum, so long as it is objective and pluralistic so that parents religious or philosophical convictions are respected.
• A philosophical conviction (a belief, beyond an idea or opinion) must be worthy of respect in a democratic society, compatible with human dignity and not conflict with the student’s right to education. A refusal to accept corporal punishment at a school is an example of a philosophical conviction: Campbell and Cosans v United Kingdom, No 7511/76, 25 February 1982.
• When it first agreed to be bound by this Article under the European Convention on Human Rights, the UK entered a reservation to it to say that it accepts the need to respect parents’ religious and philosophical convictions but that it would do so only so far as it is compatible with providing efficient instruction and training and unreasonable public expenditure was avoided.
• The second sentence of A1P1 constitutes the lex specialis in the area of education in relation to Article 9 (freedom of religion): Folgero and Others v Norway No 15472/02, 29 June 2007.
• The second sentence does not include the right to admission a private school: Sanlisoy v Turkey, No 77023/12, 8 November 2016.

Further reading:

ECtHR’s Guide on Article 2 of Protocol No. 1 to the European Convention on Human Rights, 30 April 2021, available here.

Free speech in Universities, or the lack thereof, is in the spotlight. On 16 February 2021, it is was reported in the mainstream media that the government is to bring forward legislation that will enable academics, students or visiting students who are “no-platformed” to sue universities for compensation where they feel they have suffered because their right to free speech has been curtailed. Apparently, the proposal is one of a number which will be put forward by the Secretary of State for Education, in order to protect free speech in universities in England. The Guardian reported that “the government wants to introduce a statutory tort for breaches of the free speech duty, which would enable academic staff or students who have been expelled, dismissed or demoted to seek redress through the courts.” The government is also proposing to appoint a “free speech champion”, who will be responsible for investigating potential infringements of free speech in the higher education sector.

Two immediate legal issues arise. First, is this proposed legislative reform by the government actually necessary? And second, will it be conducive to achieving in its intended aims?

In respect of the first issue, there are already a number of important legal obligations on Universities to promote free speech.

First, the right to freedom of speech is provided for under the common law: see, for example, the recent decision of the High Court in R (Harry Miller) v The College of Policing and The Chief Constable of Humberside [2020] EWHC 225 (Admin) for a restatement of well-established principles.

Second, section 43 of the Education (No.2) Act 1986 already provides a statutory obligation upon universities to ensure freedom of speech. It states:

(1) Every individual and body of persons concerned in the government of any establishment to which this section applies shall take such steps as are reasonably practicable to ensure that freedom of speech within the law is secured for members, students and employees of the establishment and for visiting speakers.

(2) The duty imposed by subsection (1) above includes (in particular) the duty to ensure, so far as is reasonably practicable, that the use of any premises of the establishment is not denied to any individual or body of persons on any ground connected with—

(a) the beliefs or views of that individual or of any member of that body; or

(b) the policy or objectives of that body.

(3) The governing body of every such establishment shall, with a view to facilitating the discharge of the duty imposed by subsection (1) above in relation to that establishment, issue and keep up to date a code of practice setting out—

(a) the procedures to be followed by members, students and employees of the establishment in connection with the organisation—

(i) of meetings which are to be held on premises of the establishment and which fall within any class of meeting specified in the code; and

(ii) of other activities which are to take place on those premises and which fall within any class of activity so specified; and

(b) the conduct required of such persons in connection with any such meeting or activity;

and dealing with such other matters as the governing body consider appropriate.

(4) Every individual and body of persons concerned in the government of any such establishment shall take such steps as are reasonably practicable (including where appropriate the initiation of disciplinary measures) to secure that the requirements of the code of practice for that establishment, issued under subsection (3) above, are complied with.

On the face of it, section 43 is a powerful section. It requires a governing body to “take steps” to ensure that freedom of speech is “secured”.

And thirdly, Universities, by virtue of being public bodies subject to the Human Rights Act 1998, are required to comply with the Article 10 of the European Convention on Human Rights. Article 10 states:

“1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.

2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.”

The afore-mentioned legal duties are enforceable by way of judicial review and an individual, or organisation, is already able to bring a claim alleging that a University is acting in breach of those duties. Whilst damages would not be awarded as of right, were it to be shown that there had been a breach of Article 10 ECHR, a claimant would have a persuasive case for “compensation” under section 8 of the Human Rights Act.

The proposed new law is intended to go further, in that it has been reported that it will apply directly to student unions, not just universities. A student union is not a public body for the purposes of the HRA and therefore does not fall within its scope. However, as a University is already obligated to ensure that a student union within it complies with the principles of free speech (see section 43(4) of the 1986 Act as cited above), it is unclear what the new proposed law is intended to add.

As to the second issue, and the proposed aims of the new legislation, the question is whether it will lead to Universities going from a situation of alleged “no-platforming” (and there is a great deal of debate as to the extent that is actually happening) to permitting any and all to address university audiences, despite the risks that poses in respect of hate speech or radicalisation. If student unions and/or Universities are to operate under a new regime of fear of paying out compensation, will this not lead to them agreeing to free speech by those who may pose a significant risk of causing harm to others? And what of the right to free speech of those who wish to protest against the views of those the new legislation is intended to protect? Ultimately, Universities have to strike a balance. That balance, and the principles as to how it is to be exercised, are already firmly enshrined in our legal framework. As it stands it is unclear how the government’s proposals are intended to advance matters and it will be interesting to scrutinise them once they are put forward.

Imogen Proud highlights a recent judgment which may be of interest to many of our Education Blog subscribers.

The Upper Tribunal has recently handed down judgment (here) in Colchester Institute Corporation v HMRC [2020] UKUT 0368. This was a test case for the education sector, and the Appellant Colchester Institute Corporation secured a significant win against HMRC on the notoriously difficult question of when VAT is payable on Government funding.

Click here for a detailed case note written by Jack Williams of Monckton Chambers.

Monckton’s Melanie Hall QC and Elizabeth Kelsey represented The Colchester Institute.

Monckton’s Peter Mantle represented HMRC.

Khatija Hafesji looks at the legal action threatened against Muslim parents in relation to their daughter’s breach of school uniform policy.

Earlier this week, several national and international newspapers reported that Siham Hamud (“SH”), a 12-year-old Muslim pupil at Uxbridge High School, had been repeatedly sent home from school for breaching the school’s uniform policy (“the Policy”). Her breach was to wear an ankle-length skirt rather than the short skirt or trousers which all school children are required to wear pursuant to the Policy. As a result of being repeatedly sent home from school, she had accumulated three weeks’ of unauthorised absences and the school threatened to bring legal action against her parents.

School uniform policies, and the enforcement of them, are often controversial amongst students, however this case raises interesting issues around what legal considerations schools must take into account when formulating their uniform policies and also best practice around resolving disputes concerning school uniforms.

The Equality Act 2010

Uxbridge High School’s Policy states that all pupils must wear either plain black trousers or a plain black pleated skirt (Year 7s may wear a pleated tartan skirt). Any students wishing to wear a skirt “must purchase the black pleated skirt from our uniform suppliers”. Students are permitted to wear headscarves. It appears then that the uniform suppliers do not stock an ankle-length skirt, the only option being a shorter presumably knee-length skirt. The alleged breach of the Policy then, is clear: SH would not wear the short skirt purchased from the uniform suppliers, or the alternative of trousers. It is noteworthy that the Policy does not contain any prima facie flexibility or exemptions.

Uxbridge High School’s Policy, and its enforcement, may raise concerns around indirect discrimination. Indirect discrimination is defined at section 19 of the Equality Act 2010 and applies where a provision, criterion, or practice is applied to all, but in doing so puts a person with a protected characteristic at a particular disadvantage compared to others without the protected characteristic. In the absence of a justification which shows that the measure is a proportionate means of achieving a legitimate aim, the conduct will be discriminatory. The relevant protected characteristic in this case would most obviously be religion (section 10).

It would be necessary to show that the group sharing SH’s protected characteristic is, or would be, at a particular disadvantage in comparison to those who do not share the characteristic. It is also necessary to show that the claimant has experienced, or would have experienced, the same disadvantage as the group. Uxbridge High School may argue that there is no particular disadvantage. The school may argue that wearing an ankle-length skirt as opposed to trousers is not a requirement of the Islamic faith, and – relatedly – that other Muslim students at the school are complying with the Policy. By analogy with R (Watkins-Singh) v Aberdare High School [2008] EWHC 1865 (Admin), it is not necessary to show that wearing an ankle-length skirt is a compulsory requirement of the Islamic faith. Rather, all a claimant has to show is a genuine and reasonably held belief that wearing the clothing was of exceptional importance to her religious beliefs, and that wearing the clothing can objectively be of exceptional importance to her religious beliefs (Watkins-Singh, para 56). Any claimant would need to adduce evidence demonstrating that modesty on the part of both genders is a requirement of / or exceptionally important to the Islamic faith and that for women this is interpreted by many as excluding the wearing of trousers or short skirts.

Uxbridge High School would have to demonstrate that such a view is a “subjectively personal religious view” (Eweida v BA [2009] 1 ICR 303 at para 61). The burden of establishing a particular disadvantage to the group is however on the claimant, who would be required to show that hers is not a subjectively personal religious view but is one held by the group as a whole even if this is not manifested in practice for some. Whilst the absence of complaints from others in the group may be a relevant factor, it cannot be determinative: the absence of complaints from others who are complying with a policy in order to access education which would otherwise be denied, is not necessarily evidence of an absence of disadvantage.

There is precedent for such an approach. In G v Head Teacher and Governors of St Gregory’s Catholic College [2011] EWHC 1452 (Admin), a male pupil successfully challenged his school’s decision that he could not wear his hair in cornrows. This was held to amount to potential indirect race discrimination (depending on the relevant justification, see paras 41 and 51). The particular disadvantage to the claimant in this case was being turned away from school on his first day, which was a traumatic experience, for refusing to cut his corn rows in order to comply with the school’s policies (para 37). It could be argued that SH has experienced this particular disadvantage along with others such as: being deprived of effective access to education over several weeks at a time where school children have already suffered a significant deprivation of education due to Covid-19, an apparent inconsistent implementation of the school’s policy over a period of time which can make a child feel as if she has been ‘singled-out’ even where they are not.

Whether or not the indirect discrimination is unlawful depends on the school’s justification of its Policy. Uxbridge School has not explained its justification, however possible arguments may be:

•  A ‘thin end of the wedge’ style of argument, which impresses upon the importance of a consistent and coherent school uniform policy in order to maintain standards, discipline and cohesion at school. An argument may be that providing an exemption for SH may undermine the overall effectiveness of the policy. An argument along these lines was advanced in G, however it was rejected. Collins J stated that there was no evidence that respecting a child’s cultural values and family practices (as it was in that case) by providing for a limited exemption in the school’s policy would undermine the effectiveness and aims of the policy as a whole (para 48). Indeed, in this case it may even be argued that a policy which shows appropriate respect for the diverse faiths and religious practices of a school’s population, particularly in a deprived and diverse community, strengthens the aims of the uniform policy.
• Other possible justifications may include concerns around health and safety or ensuring a balance with the rights of others, however it is difficult to envisage how these arguments may operate in practice in this case.

Approach to Dispute Resolution and DFE Guidance

The approach advocated in the “School uniform: guidance for schools” published by DFE sets out the best practice to which all schools should have regard to avoid – where possible – escalations of this nature. The Guidance is non-statutory, however schools are expected to take full account of it (page 3). The Policy makes a number of noteworthy points:

• When setting school uniform policies, take into account the views of parents and pupils and consider the impact of the policy on each group represented in the school (page 4);
• Ensure school uniform policies are not overly rigid, and that any reasonable requests to vary the policy in order to accommodate a pupil’s religious beliefs are carefully considered (page 4);
• Makes express reference to the need to ensure that uniform policies do not discriminate unlawfully, and highlights the risk of indirect discrimination on the grounds of religion and belief (page 6).

Uxbridge High School is located in an ethnically and religiously diverse part of West London, and may therefore be expected to have greater familiarity with the religious beliefs and practices of its school’s population than less diverse schools. It may therefore be surprising to see a dispute as to school uniform culminate in a threat of legal action against SH’s parents unless they ensure she complies with the Policy, only what is reported to be 8 days after she was initially sent home from school. This case provides a timely reminder to students, parents, and schools of their rights and obligations under the Equality Act 2010 when formulating and enforcing school uniform policies.

Khatija Hafesji is a barrister at Monckton Chambers with a broad public law practice, including in children’s rights and education law.

David Gregory looks at the Court of Appeal’s powerful judgment on consultation, which is likely to be of interest to readers of our Education Blog, in R (Article 39) v Secretary of State for Education [2020] EWCA Civ 1577.

Khatija Hafesji acted for  Article 39.

The facts

As the pandemic took hold in the early part of 2020, the Department for Education had fears for implications of widespread sickness on the ability of local authorities to provide care to vulnerable children.It reviewed the applicable regulations and ultimately proposed a wide-ranging number of changes including:

• relaxing the requirement for social workers to visit children in care in accordance with strict timescales; relaxing the requirement to review plans for children in care to set timescales;
• relaxing the requirement for social workers to visit children in care in accordance with strict timescales;
• enabling local authorities to approve anyone who meets the requirements as a temporary foster carer rather than only those connected to the child;
• relaxing the requirement for monthly independent visits to children’s homes;
• extending the period for which children could be placed with emergency foster carers;
• removing the requirement for decisions to place children in care outside the local area to be approved by a nominated officer.

The DfE carried out a short informal consultation of the changes by email with a variety of local authority stakeholders, including the Association of Directors or Children’s Services and Ofsted (who carry out inspections of children’s homes). However, it did not consult the Children’s Commissioner, instead informing her via email that it would be “relaxing some minor burdens in order that local authorities can continue to deliver children’s services without being unnecessarily hindered by process in these extraordinary circumstances.”

The regulations came into force on 24 April 2020. On 30 April the Children’s Commissioner issued a statement complaining of the minimal consultation undertaken and stating that the changes were unnecessary: “Children in care are already vulnerable, and this crisis is placing additional strain on them – as most are not in school, less able to have direct contact with family and other trusted professionals, and facing the challenges of lockdown and anxiety about illness – all on top of the trauma they have already experienced.”

Article 39, a charity whose objects include promoting the protection of children living in institutional settings in England challenged the regulations. At first instance, it alleged that the consultation had been carried out in a one-sided manner and that powers had not been used for their proper purpose of promoting the welfare of vulnerable children.

At first instance the challenge failed on all its grounds. In relation to the alleged failure to consult Lieven J had found that whereas in ordinary circumstances it would have been unlawful not to consult the children’s commissioner the focus of the amendments, the extreme urgency and scale of issues facing the DfE mean that it was not an error of law not to consult the children’s commissioner.

Article 39’s appeal focused on the alleged failure to consult, in particular, the Children’s Commissioner.

The outcome

The appeal succeeded.

The Court outlined the four cases in which a duty to consult may arise in accordance with R (Plantagenet Alliance Ltd) v Secretary of State for Justice and others [2014] EWHC 1662: (i) where there is a statutory duty; (ii) where a promise to consult has been made; (iii) where there is an established practice of consultation and (iv) where it would be conspicuously unfair not to.

The Court recalls the three main purposes of consultation: (i) to improve the quality of decision making, (ii) those affected may have a right to be consulted by it and feel injustice if they do not and (iii) consultation is part of a wider democratic process [37].

The court also reminded itself that the role of the Children’s Commission is set out in statute. Established in 2004, the role was reviewed as part of the 2010 Dunford report. Part 6 of the Children and Families Act 2014 expanded the role to including:

• advising persons exercising functions or engaged in activities affecting children on how to act compatibly with the rights of children;
• advise the Secretary of State on the rights, views and interests of children; and
• consider the potential effect on the rights of children of government policy proposals and government proposals for legislation [40].

Looking at the facts, the Court was highly concerned that the changes had been described as minor in the email to the Children’s Commissioner. This suggested that the DE had not appreciated their full impact: “the potential impact of allowing a child to be placed with a stranger who is not a family member hardly needs stating, particularly in circumstances where there may be no nominated officer oversight.” The changes represented a significant change in the substantive vision of services to children. [80]

The duty to consult arose in three ways:

• With regard to some of the changes, there was a statutory duty to consult persons considered appropriate. Given some consultation had been carried out it was irrational ‘not to include the Children’s Commission and other bodies representing children’s rights; [83]
• There was an established practice of consulting such bodies. [84]
• Given the impact of these proposed amendments on the very vulnerable children in the care system, it was conspicuously unfair not to include those bodies representing their rights and interests within the informal consultation. The people affected were some of society’s most vulnerable. Organizations set up to represent their interests were better equipped to identify the impacts of the changes than local authorities and care providers. Accordingly, it had been misleading for the DfE’s submission to ministers to state that the changes were broadly endorsed by “the sector” when such bodies had been excluded. Further, it was irrational not to consult the Children’s Commission given her statutory functions. Consultation would have better equipped the Secretary of State to make judgments [85].

The Court declared that the Secretary of State had acted unlawfully by failing to consult the Children’s Commissioner and other bodies representing the rights of children in care before introducing the Amendment Regulations [90].

Discussion

This is a landmark decision in the importance of children’s rights and the importance of the Children’s Commissioner and other bodies in the sector in upholding them. The judgment is likely to be of strategic importance as the government takes steps to carry out its manifesto-promise of a “Care Review”.

The Court of Appeal plainly considered that if any consultation is to be carried out, it should not be done in a one-sided manner. However well-intentioned, local authorities and other care providers have a mixed interest in relaxing of safeguards for children since the obligations fall on them and impact their resources. The vulnerable children themselves are some of society’s most marginalized and require robust and powerful representation in order to be given a voice.

The Court recognises this and provides a ringing endorsement of the function and role of the Children’s Commissioner. It did not matter that the Dunford report had considered and rejected a proposal to include an express statutory duty of consultation. In circumstances where there are substantial effects on the rights of children and any consultation is to be carried out, it will be irrational to exclude the Children’s Commissioner.

Moreover, the judgment is not limited to the failure to consult the Children’s Commissioner (whose role is bolstered by statute). It was irrational also not to consult “other bodies representing children’s rights.” These are not defined by the Court but abut paragraph 7 notes that there was no consultation of “advocacy groups or lawyers’ organisations or any agency or charity involved with children’s rights”. Whilst Article 39’s submissions appear to have focused on the Children’s Commissioner, it has scored a broader victory meaning that charities such as a itself and also lawyers groups (e.g. the Family Law Bar Association and the Association of Lawyers for Children) should be more readily included during the formative stages of decision making in this area.

The judgment also provides a warning to policy makers against downplaying changes to be made. The DfE had referred in its email to the Children’s Commissioner to the changes as “relaxing some minor burdens”. By contrast, the Court found the amendments “represented a significant change in the substantive provision of services to children” [80]. This misdescription gave the Court the impression that the import of the changes had not been clearly appreciated and made it more ready to find unlawfulness in the scope of the consultation to be carried out.

Khatija Hafesji considers the Department for Education’s latest school closure and mass testing decisions and their implications for the right to education.

On 2 January 2021, the National Association of Head Teachers (“NAHT”) announced in a message to its members that it had sent a pre-action letter to DFE concerning its plan for a phased reopening of schools in January. The challenge appears to be on multiple grounds, including the plans to introduce mass testing in schools. NAHT is joined by the Association of Schools and College Leaders in its proposed judicial review, and the action is designed to support their call for government to “remove people in schools from the physical harm caused by the current progress of the disease and to work with the professional and Public Health England to establish new protocols and interventions to make schools covid-secure.”

The government’s position in respect of secondary school students, which was revised on 30 December 2020, is set out in updated guidance entitled “Schools and childcare settings: return in January 2021” and provides for a phased return to education. The plan is for all pupils to return to on-site education by 18 January 2020, but with the following steps to be taken in the coming weeks:

• On-site education: from 4 January 2020, secondary schools should only provide on-site education to vulnerable children and children of critical workers. In the week commencing 11 January 2020, on-site education should be extended to children in examination years.
• Remote learning: in the week commence 4 January 2020, schools should prioritise the provision of remote education to those in exam years. From the 11 January 2020, schools should provide remote education to all other pupils.
• Testing: In the week commencing 4 January 2020, schools should prepare to deliver testing of staff and pupils. Testing should be rolled out from 11 January 2020, with children in examination years prioritised for testing.

The testing regime proposed for schools appears (from guidance published on 15 December 2020) to consist of lateral flow tests, which is a device designed for mass asymptomatic testing recently piloted by the government and described in the guidance as providing results in 30 minutes.

The position concerning primary school children is different. Primary school children are expected to return to school at the usual start of term, with testing to be rolled out in mid-January. This is with the notable exception of children attending Primary schools in London, who are subject to the same timetable set out above.

The government’s position, which appears to have the support of the Children’s Commissioner, is that it is in a child’s best interests to remain in school. This is because most children are at very low risk of having a severe response to the Covid-19 virus, and remote learning is a poor substitute for on-site education.

NAHT’s position looks to the public health implications of schools remaining open. They are the subject of intense debate, however it appears from the introduction to the Contingency Framework published on 1 January 2021 that the government’s rationale for keeping schools open is based upon a narrow focus on the risks posed to staff and students from Covid-19 compared to the detriment children will suffer if they are out of school. The position is based on upon scientific advice which has not yet been disclosed. It is unclear the extent to which the government has had regard to the wider public health implications of keeping schools open and taken that into account in its risk analysis, this includes the health impact on the families of staff and children, as well as the wider community with whom children and staff come into contact. Fears are particularly acute for those most disadvantaged in society who are more likely to live in overcrowded accommodation, with extended family, and where other family members cannot work from home. The understanding of the link between keeping schools open and the spread of Covid-19 has also developed since the decision was taken to reopen schools in September 2020, as has the nature of the Covid-19 virus itself.

No doubt the requests for information made by NAHT in its pre-action correspondence go to the extent to which these considerations were taken into account by the government before reaching its decision and, the extent to which the decision taken was rational in the light of that information. Another potential argument, following on from the case of Article 39 v Secretary of State for Education [2020] EWCA Civ 1577 may concern the extent to which the Children’s Commissioner was consulted, particularly around improving the provision of remote education to children in the coming weeks.

The focus of this blog post, however, is more on what impact the closure of schools (as advocated by NAHT) will have on children’s education and particularly on equality of opportunity and the life chances of those disproportionately affected by the closures. What rights do such children have and what obligations does the Secretary of State, local authorities, and schools owe all children during this difficult time?

The right to education and the duty to provide it

The Temporary Continuity Direction

On 30 September 2020 the government published the Coronavirus Act 2020 Provision of Remote Education (England) Temporary Continuity Direction, which requires that where a class, group of pupils, or individual pupils need to self-isolate or there are local or national restrictions requiring pupils to remain at home, schools are expected to provide immediate access to remote education. The direction remains in force and does not apply to post-16 education. The quality standards for the education to be provided is set out in the guidance for full opening which provide that provision:

• be high quality, safe and aligned as closely as possible with in-school provision
• be meaningful, ambitious, well-planned and clear
• avoid an over-reliance on long-term projects or internet research activities
• consider the age, stage, development or SEN of the pupil
• make reasonable adjustments for pupils with SEN, as necessary
• provide printed resources where pupils do not have online access and
• provide interaction, assessment and feedback

In addition to being enforceable by the Secretary of State, a breach of the direction may also be relied upon by an individual child who is not receiving the education which their school is required to provide.

A2P1

Article 2 of the First Protocol of the European Convention of Human Rights (“A2P1”) guarantees an individual right to education. The key case which sets out the substance of this right is Belgian Linguistic (1968) 1 EHRR 252 notes that the rights protected by A2P1 include inter alia (i) the right to access educational institutions existing at a given time, and (ii) the right to an effective education. The right is not an absolute one, however any restrictions which the state imposes must be foreseeable for those concerned and pursue a legitimate aim. The means must be reasonably proportionate to the legitimate aim. However, any restrictions imposed by the state cannot go so far as to impair the very essence of the right or to deprive it of its effectiveness (Leyla Sahin v Turkey no. 44774/98 ECHR 2005-XI). The state is afforded a margin of appreciation, however this varies depending upon the importance of the education to the individual and society at large. Accordingly, there is a greater margin of appreciation afforded to the restriction of the right to access higher education than restrictions to primary or secondary education (Ponomaryovi v Bulgaria no. 5335/05, ECHR 2011 at para 56).

Impact thus far of school closures on disadvantaged children

Where schools close as a result of the Covid-19 pandemic, state provision of education switches (for most children) from on-site provision to remote provision. It is arguable that to ensure that all children have an effective right of access to this education, the state needs to take proactive measures to ensure that the provision on offer is suitable for all children and that all children can access it. The experience of school closures from 2020 suggests that this did not happen:

• Evidence from the Children’s Commissioner suggests that the Secretary of State allocated insufficient resources to support remote learning for disadvantaged pupils, including by introducing criteria which were simply too stringent (and not, therefore, capturing all of those children in need) as well as providing insufficient resources to meet the needs of all those who were eligible. In short, the data the Children’s Commissioner obtained from DFE suggests that only a minority of children who required technology to access remote learning were provided with it.
• Evidence from the Institute for Fiscal Studies suggests that children from better-off families were spending 30% more time on home learning than those from poorer families. The report suggests that inequalities have worsened, particularly for primary school students where a considerable gap in learning time has emerged.
• Research from the Sutton Trust indicates that early on in the lockdown children from independent schools were twice as likely to be able to partake in remote learning compared to those from state schools. More recent research from the 1 October 2020 suggests that school closures will have a significant negative impact on the social mobility of disadvantaged pupils and adversely affect their life chances, including future earnings.

The impact of missed education may be most acute for those in their examination years, however the notion that children in other year groups can simply ‘catch up’ is not supported by the evidence. Missed education is highly likely to exacerbate pre-existing inequalities. This is likely to have a disproportionate impact on children from ethnic minority backgrounds, those who are suffering neglect and abuse at home, and those who have special educational needs or disabilities.

On 1 October 2020, additional resources were committed by the Secretary of State and the eligibility criteria were expanded. However, the above evidence from the Children’s Commissioner indicates that schools were already under-resourced – the additional contribution may only have reduced the shortfall, not cured it. Moreover, it is unclear whether additional resources have been provided to schools in order to prepare for two weeks of school closures this term. In any case, the Secretary of State’s focus on access to technology excludes several other key issues faced by disadvantaged children, including the availability of study space, the difficulty of multiple children trying to access resources simultaneously, the importance of nutrition, the impact on children with SEND who require specialist resources, and the impact of the inability of some parents to adequately support their children with learning.

If schools are to close again, the state – working with schools and local authorities – must do more to ensure that all children can access effective education. There is precedent for a more proactive approach in order to comply with A2P1, see Orsus and Others v Croatia (2010) 52 EHRR 300 para 177, a case concerning poor attendance and high dropout rates of Roma children. The General Court held that this “called for the implementation of positive measures… [including by] active and structured involvement on the part of relevant social services.” It seems to me that the apparent inadequacy of the resources allocated by the Secretary of State to schools and local authorities to deliver the remote learning they are directed to provide is key to any challenge in this regard. Accordingly, if school closures are achieved, the next step must be to ensure that children – particularly those most disadvantaged – are not left behind.

Khatija Hafesji is a barrister at Monckton Chambers with a broad public law practice, including in children’s rights and education law. She previously worked at the University of Cambridge Admissions Office on access for disadvantaged children to higher education. This article has been republished by the Local Government Lawyer.

Schools minister Nick Gibb is reported to have written to headteachers who were planning to move to online teaching for the last week of term, threatening to order that they keep schools open.

Some headteachers had been planning to switch to remote learning for the final week before the Christmas holidays to remove the risk of pupils needing to self-isolate on Christmas day should there be positive Coronavirus cases in their school in the last week of term.

The Department for Education said it was prepared to use emergency powers under Schedule 17 of the Coronavirus Act 2020 in order to keep schools open for face-to-face learning. This schedule empowers the Secretary of State to give a temporary continuity direction to one (or more) named institution(s) in England, requiring that the institution take the steps specified in the direction (paragraph 1(2)). Nick Gibb, in last week’s letter, said he was “minded” to direct relevant boards of trustees to keep school gates open. There is no doubt that requiring a school to stay open is one of the permitted outcomes which a temporary continuity direction may require (see paragraph 1(4)(b)).

Room for difference of opinion enters with the requirement that, before giving a direction, the Secretary of State must be satisfied that giving the direction is necessary and proportionate (paragraph 1(3)(b)). School leaders may point to the fact that children may have been absent from school in large numbers in preceding weeks due to confirmed cases at the school, and the risk of positive cases in the final week of term may on that basis be predicted to be high. They may argue that, in those circumstances, it is disproportionate to require that schools be open for a further week in lieu of children learning online, when considered against the harm this could cause to many pupils’ – and their families’ – Christmas plans. The debate thus centres on a judgment call weighing the additional benefit of face-to-face learning as compared to online teaching for 5 days as compared to the mental health and other advantages pupils would gain from seeing friends and relatives – within the limits of applicable lockdown regulations – over the Christmas period. Much would seem to depend upon the quality of the alternative online provision being offered and the extent to which pupils would be able and willing to engage with online lessons.

This story was covered by the Guardian.