The claimant had been accused with others of arson to school property. He was suspended for the maximum forty five day period. The school then invited the family to discuss arrangements to return to the school, but the family did not attend. After the expiry of the forty five days, the criminal proceedings were discontinued. The local authority began to make arrangements for alternative tuition. Only six months later the family asked for the son to be allowed to return, but the school then said that his place had been filled. He sought damages for infringement of his right to education.
Held: The school’s appeal succeeded (Baroness Hale of Richmond dissenting in part). However had the court been asked for a declaration of incomptibility rather than damages, the result might have differed. The right to education was not absolute, but regulation of the right must not impair its essence. The statutes left the school in a position in which it was not possible to do the right thing. After the fixed period suspension, its only choice was to re-instate or to make the suspension permanent. The exclusion had been on management not disciplinary grounds. The guidance did not assist, but even so the suspensions failed to meet the criteria required.
Lord Hoffmann said that the statutory code was well adapted to the use of exclusion as a punishment for a serious disciplinary offence, imposed in the interests of the education and welfare of the pupil and others in the school. It was far less suitable for dealing with a case like the case under appeal ‘in which the pupil was excluded on precautionary rather than penal grounds.’
Baroness Hale discussed the dichotomy between disciplinary and precautionary grounds for suspension of a student: ‘Section 64 is concerned only with exclusion ‘on disciplinary grounds’. The requirements all assume that it is imposed as a determinate sanction for a serious breach of discipline, rather than as an indeterminate precaution pending the resolution of what may or may not turn out to have been a serious breach of discipline.’
Lord Bingham set out the legal principles applicable in an A2P1 claim: ‘The Strasbourg jurisprudence . . makes clear how article 2 should be interpreted. The underlying premise of the article was that all existing member states of the Council of Europe had, and all future member states would have, an established system of state education. It was intended to guarantee fair and non-discriminatory access to that system by those within the jurisdiction of the respective states. The fundamental importance of education in a modern democratic state was recognised to require no less. But the guarantee is, in comparison with most other Convention guarantees, a weak one, and deliberately so. There is no right to education of a particular kind or quality, other than that prevailing in the state. There is no Convention guarantee of compliance with domestic law. There is no Convention guarantee of education at or by a particular institution. There is no Convention objection to the expulsion of a pupil from an educational institution on disciplinary grounds, unless (in the ordinary way) there is no alternative source of state education open to the pupil (as in Eren v Turkey (Application No 60856/00) (unreported) 7 February 2006). The test, as always under the Convention, is a highly pragmatic one, to be applied to the specific facts of the case: have the authorities of the state acted so as to deny to a pupil effective access to such educational facilities as the state provides for such pupils? In this case, attention must be focused on the school, as the only public authority the respondent sued, and (for reasons already given) on the period from 7 June 2001 to 20 January 2002.’
Judges:
Lord Bingham of Cornhill, Lord Nicholls of Birkenhead, Lord Hoffmann, Lord Scott of Foscote, Baroness Hale of Richmond
Citations:
Times 27-Mar-2006, [2006] UKHL 14, 20 BHRC 295, [2006] 2 All ER 457, [2006] ELR 223, [2006] 2 WLR 690, [2006] 2 AC 363
Links:
Statutes:
European Convention on Hman Rights P1 A2, Education Act 1996 7 19(1), School Standards and Framework Act 1998 64 65 66 67, Human Rights Act 1998 6(1)
Jurisdiction:
England and Wales
Citing:
At First Instance – Ali v Head and Governors of Lord Grey School QBD 27-Jun-2003
The claimant had been expelled from school unlawfully, and now sought damages for the breach of his right to an education.
Held: The claimant had received and had refused appropriate offers of alternate schools. The duty was imposed generally . .
Appeal From – Ali v The Head Teacher and Governors of Lord Grey School CA 29-Mar-2004
The student had been unlawfully excluded from school. The school had not complied with the procedural requirements imposed by the Act.
Held: Though the 1996 Act placed the responsibilty for exclusion upon the local authority, the head and . .
Cited – Relating to certain aspects of the laws on the use of languages in education in Belgium (Belgian Linguistics) No 2 ECHR 9-Feb-1967
The applicants, parents of more than 800 Francophone children, living in certain (mostly Dutch-speaking) parts of Belgium, complained that their children were denied access to an education in French.
Held: In establishing a system or regime to . .
Cited – Kjeldsen, Busk, Madsen and Peddersen v Denmark ECHR 7-Dec-1976
The claimants challenged the provision of compulsory sex education in state primary schools.
Held: The parents’ philosophical and religious objections to sex education in state schools was rejected on the ground that they could send their . .
Cited – Timishev v Russia ECHR 13-Dec-2005
The applicant complained of an alleged infringement of his Article 2 rights. His children had been excluded from school because he was not registered as resident in the area. His appeal to the domestic courts was dismissed, although the Government . .
Cited – Regina (S) v Brent London Borough Council and Others Regina (T) v Brent and Others Regina (P) v Oxfordshire County Council’s Exclusion Appeals Panel and Another CA 17-May-2002
Three pupils appealed their exclusion from school for violent or threatening behaviour.
Held: The statute imposed clear obligations on the appeal panel to act independently, and to consider both the individual circumstances of the child and . .
Cited – Campbell and Cosans v The United Kingdom ECHR 25-Feb-1982
To exclude a child from school for as long as his parents refused to let him be beaten ‘cannot be described as reasonable and in any event falls outside the State’s power of regulation in article 2’. The Convention protects only religions and . .
Cited – Chapman v United Kingdom; similar ECHR 18-Jan-2001
The question arose as to the refusal of planning permission and the service of an enforcement notice against Mrs Chapman who wished to place her caravan on a plot of land in the Green Belt. The refusal of planning permission and the enforcement . .
Cited – Simpson v United Kingdom ECHR 1989
The right to be provided with an education does not guarantee access to any particular institution provided. . .
Cited – Regina v Secretary of State for Foreign and Commonwealth Affairs ex parte Quark Fishing Limited HL 13-Oct-2005
The applicant had previously received licences to fish for Patagonian Toothfish off South Georgia. The defendant had instructed the issuer of the licence in such a way that it was not renewed. It now had to establish that its article 1 rights had . .
Cited – Holub and another v Secretary of State for Home Department CA 20-Dec-2000
The claimants appealed against a refusal of their request for judicial review of the Secretary of State’s decision not to grant them exceptional leave to remain in the United Kingdom. If returned to Poland the daughter of the family would face . .
Cited – Yasanik v Turkey ECHR 1993
(Commission) The applicant had been expelled from a military academy, and complained of the infringement of his article 2 rights.
Held: There was no denial of the right to education because the Turkish education system also included civilian . .
Cited – In re L (a minor by his father and litigation friend); Regina v Governors of J School, ex parte L HL 27-Feb-2003
A pupil had been excluded from school, then ordered to be re-instated by the independent appeal panel. The teachers’ union objected to his return to the school. The head-teacher arranged for him to be taught and supervised at school by a non-union . .
Cited by:
Cited – Begum (otherwise SB), Regina (on the Application of) v Denbigh High School HL 22-Mar-2006
The student, a Muslim wished to wear a full Islamic dress, the jilbab, but this was not consistent with the school’s uniform policy. She complained that this interfered with her right to express her religion.
Held: The school’s appeal . .
Cited – JR17 for Judicial Review (Northern Ireland) SC 23-Jun-2010
The appellant was excluded from school. A female pupil related her fear of him to a teacher, but would not make a formal complaint, and the appellant was not to be told of the report or the investigation of it. There was said to have been confusion . .
Cited – A v Essex County Council SC 14-Jul-2010
The claimant, a severely disabled child sought damages, saying that for well over a year, the local authority had made no provision for his education.
Held: His appeal against the striking out of his action failed. The correct approach had . .
At House of Lords – Ali v United Kingdom ECHR 11-Jan-2011
The applicant had been excluded from school after a fire for which he was suspected pending completion of the police enquiry, which extended beyond the maximum allowed. Though the investigation was completed with no action against him, the scholl . .
Lists of cited by and citing cases may be incomplete.
Education, Human Rights
Updated: 05 July 2022; Ref: scu.239350
