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Anderson (a minor), Re Application for Judicial
Review [2001] NIQB 31 (20 August 2001)
Neutral Citation no. [2001] NIQB 31
Ref:
WEAB 3121.T
Judgment: approved by the Court for handing down
Delivered:
20.08.01
(subject to editorial corrections)
IN THE HIGH COURT OF JUSTICE IN NORTHERN IRELAND
QUEEN'S BENCH DIVISION (CROWN SIDE)
-------- IN THE MATTER OF APPLICATIONS BY NOEL ANDERSON (A MINOR)
BY HIS MOTHER AND NEXT FRIEND KATHLEEN ANDERSON AND SHEA O'DOHERTY (A MINOR)
BY HIS MOTHER
AND NEXT FRIEND PAULINE O'DOHERTY
FOR JUDICIAL REVIEW
--------
WEATHERUP J
These applications are for judicial review of the decisions of the Board of
Governors of Lumen Christi College, Londonderry of 4 April 2001, and of the
decisions of the Admissions Appeal Tribunal of the Western Education and Library
Board, of 25 June 2001 in the case of Shea O'Doherty and 26 June 2001 in the
case of Noel Anderson, whereby the applicants were refused places in the first
form of the Lumen Christi College commencing in September of 2001.
In the case of Noel Anderson, he was born on the 6 January 1990 and he lives in
Derry. He attended primary school at Nazareth House Primary School which is
close to the Lumen Christi College. In February 2001 he was advised by the
Western Board that he had received an A grade in his 11+ exam. A transfer
application was made on the applicant's behalf that he be admitted to Lumen
Christi College as his first preference. His second preference was a local
grammar school called St Columb's College. On 1 June 2001 he was informed that
he had been admitted to his second preference which was St Columb's College.
The family received an explanation for this decision in June 2001 when it was
stated that the applicant had not been admitted to his first preference
following the schools application of its sub-criteria. An appeal was lodged
against this refusal to admit the applicant to Lumen Christi. Notification of
the Appeals Tribunal's decision to reject the appeal was received by letter from
the Western Board dated the 26 June 2001.
In the case of Shea O'Doherty
he was born on the 15 September 1989 and he too lives in Derry. He also
attended the primary school at Nazareth House and on 9 February 2001 was advised
by the Western Board that he had received an A grade in the 11+ exam. He
made an application to be admitted to Lumen Christi as his first preference and
his second preference was the local grammar school St Columb's College. In
his case a copy of a Speedwell Trust certificate was appended to his transfer
application for onward transmission to Lumen Christi. This certificate
certified that the applicant had completed an external programme which had been
organised by the primary school. He was informed by letter dated
1 June 2001 that he had been admitted to his second choice which was St Columb's
College. An explanation was received in June 2001 that the rejection by
his first preference school was by reason of the application of the school's
sub-criteria. The family contacted the local Assembly Member,
Mr Mark Durkin and he wrote to the Department of Education in June 2001 making
representations about the admissions procedure and in particular the criteria
which were applied by Lumen Christi. He received notification by letter
dated 25 June 2001 that an appeal against the decision had been rejected.
The statutory arrangements
that apply in relation to this scheme of school transfers can be found in the
Education (Northern Ireland) Order 1997. Under Article 9 of the 1997 Order
every Education Board makes arrangements for the parents of a child to express
their preferences as to the school at which they wish the child to be educated.
By Article 10 it is provided that the Boards of Governors shall not admit to any
school in any year a number of children which exceeds the school's admission
number. By Article 12 it is provided that the Department of Education sets
the admission number for each school, which in the case of Lumen Christi was 120
for the 2001 intake. By Article 14 of the Order it is provided that, where
an application is made, the Board of Governors shall admit the child to the
school if the total number of such applications does not exceed the admissions
number of the school, and in any other case shall apply the criteria which are
drawn up under Article 16(1) to either admit or refuse the child accordingly.
Article 16 provides for the drawing up of the criteria that each Board of
Governors shall apply in selecting children for admission to Grammar Schools
under Article 14. Regulations have been introduced, namely the Secondary
Schools (Admissions Criteria) Regulations (Northern Ireland) 1997 which by
regulation 4 provide for matters which are to be included in the criteria.
In essence it is there provided that admissions are determined by reference to
the grades which are awarded to the children, with priority given to the higher
grades. The grades are, in descending order, A, B1, B2, C1, C2 or D.
The criteria which have been adopted by the school in this case are at the heart
of this dispute. The criteria indicate that applicants will be admitted in
grade order. It is then provided that if there are more applicants with a
particular grade than places remaining the available places will be allocated by
the application of the following sub-criteria in the order of priority set down
below -
"(1) Applicants of whom a brother/sister, half-brother/sister,
step-brother/sister or legally adopted brother/sister is a pupil in this school
or will be in the coming year.
(2) Applicants of whom a parent is a permanent member of the College
staff or a Governor of the College or will be in the coming year.
(3) Applicants who in the judgment of the Selecting Committee have
demonstrated, in years 5, 6 or 7 (beginning 1 July 1998) extra curricular
achievement by gaining an award/certificate in open activities in any of
the following: out-door pursuits, sport, IT, science, technology, chess, quiz,
art, dance, debating, drama, essay or poetry writing, music, photography,
singing, speech or other activities similar in the judgment of the Selecting
Committee:
Activities organised by an individual school or group of schools or a club are
not open in the meaning of this criterion.
Parents should note it is their responsibility to provide verifiable clear
evidence of the achievement.
(4) Applicants who have gained an award/certificate in any of the
activities in sub-criterion 3 above internal to the school/club.
For sub-criterion 4 details must be provided with supporting verifiable evidence
by parents or with verification by the Primary Principal.
(5) Other applicants.
If over subscribed on any of the above sub-criteria, places will be allocated in
order of age starting with 'underage' applicants and then in rank order of age
starting with the eldest and, if necessary, in alphabetical order".
The arrangements in relation to the Lumen Christi allocation of places are set
out very helpfully in the minutes of the discussions of 4 April 2001 which are
exhibited to the respondent's affidavit. They indicate that there were 120
admissions in relation to the school and the number of A grade applicants was
186 so the school is obviously very popular. The Selection Committee therefore
set about applying the sub-criteria. It applied sub-criterion (1) and 40 pupils
qualified which left 146 A grades to be considered. The Committee then
proceeded to consider sub-criterion (2) and 2 pupils qualified so the total then
admitted was 42 and that left 144 applicants to be considered. The Committee
then moved to sub-criterion (3) which is the open activities criterion. There
were 76 who qualified under sub-criterion 3 so the total admitted was then 118
which left 68 A grades looking for 2 places. The Committee then moved to
sub-criterion (4) which requires the school or club certificate and they found
that there were 37 of the remaining applicants who satisfied sub-criterion (4)
and in accordance with the rules they listed those applicants by age and the
first 2 qualified. Accordingly 35 of the applicants who satisfied sub-criterion
(4) did not find places. That included Shea O'Doherty with his Speedwell Trust
Certificate. He was eleventh of the 35 by age ranking. Of course the quota was
filled at 120 places and so there was no place for him. Nor was there a place
for the remaining applicants who had satisfied sub-criterion (4) nor for the 31
others who did not qualify for sub-criterion (4) status and that included Noel
Anderson. He was not graded by age, because that exercise was unnecessary as he
was too far down the potential qualifying list.
By these applications for Judicial Review there are three areas of attack on the
existence and application of sub-criterion (3) and sub-criterion (4). The first
ground of attack alleged a breach of Article 16(6) of the 1997 Order. Article
16(6) provides:-
"The criteria drawn up under paragraph (1) and to be applied in selecting –
(a) …
(b) children in the relevant age groups for admission to a Grammar
School,
shall not include the performance of the children in any test or examination
held by, or on behalf of, the Board of Governors of secondary school".
Mr Treacy for the applicants,
argued that a test or examination was held by or on behalf of the Board in this
case, that is, the requirement to provide the certificate or award was a test or
examination held by or on behalf of the Board. Further he argued that the
performance was being measured by this requirement and not just by participation
in the activity. In addition he argued that the requirement depended upon
the judgment of the Committee, which as the wording of sub-criterion (3)
indicates, did require the judgment of the Committee in relation to the
certificate and the activity to which the certificate related.
Mr Long, for the Board of Governors, emphasised that the interpretation of
Article 16(6) had to be considered in context. He conceded that informal tests
and examinations are not permitted under Article 16(6) and I would agree that
this provision is designed to prevent either formal or informal tests or
examinations set by the individual schools in order to determine admission.
Further he submitted that the requirement was not a performance test which was
being applied by the Board. Article 16(6) is directed against schools setting
their own qualifying tests for admission and seeking to grade performance in
activities that are not limited to the academic sphere. The present criteria
seek to establish the holding of certificates or awards in activities and do not
involve the Board testing performance standards. In my opinion that which was
required by sub-criteria (3) and (4) was not a breach of Article 16(6) but the
verification of committed involvement in outside activities. Accordingly I
reject the first ground of challenge that this was a test or examination which
was set by the Board of Governors in contravention of Article 16(6).
The second attack was that the application of sub-criteria (3) and (4) involved
indirect discrimination against lower income families.
Mr Treacy relied on Article 14 of the European Convention on Human Rights.
Article 14 provides –
"The enjoyment of the rights and freedoms set forth in this Convention shall be
secured without discrimination on any grounds such as sex, race, colour,
language, religion, political or other opinion, national or social origin,
association with a national minority, property, birth or other status".
Mr Treacy relied on social
origin and property and (financial) status. Within "other" status he
embraces his own category of financial status and treats property and financial
status as the same matter.
It is accepted that Article 14 is not freestanding but relies on discrimination
related to another Convention right. In this case the right to education under
Article 2 of the First Protocol 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 of the rights of parents to ensure such education and teaching in
conformity with their own religious and philosophical convictions".
There is no right to a particular form of education and there is no right to be
educated at a particular school but there is a right not to be discriminated
against in the provision of whatever education is provided. The grounds of
complaint in this case relate to the alleged adverse impact of the sub-criteria
on the lower income family and that is a two-fold complaint. First, that the
activities which are specified are principally features of the financially sound
middle class says Mr Treacy and he refers in particular to music and horse
riding. Secondly, he submits that the attainment of certificates is in itself
not a feature of low-income families. He provides a table to demonstrate the
types of activities that are involved and that table breaks down the pupils
admitted under sub-criterion (3) and the principal activity was music where
about one-third of those involved submitted a music certificate. One submitted
a horse riding certificate, 2 submitted gymnastics certificates, 6 submitted
dance certificates, 8 essay or poetry writing, 3 science and technology, 2
speech and drama, 5 road or fire safety, 3 cycling proficiency, 2 public
speaking, 6 sport activities, 2 quiz/singing and 8 others. The individual
breakdown appears in the schedules prepared by the Committee which assessed the
children and when one looks at sub-criterion (3) one sees that music features
large and that there are some sporting activities but there are also certain
non-sporting/non-musical activities, for example, a national cycling proficiency
certificate from the Department of the Environment, a third prize in Fire Safety
Competition held by Derry City Council, highly commended from the Londonderry
Roads Safety Committee, a young writers certificate, a winners certificate in
the Derry Credit Union quiz, the Clondalkin Youth Service achievement
certificate and an Irish dancing certificate.
An issue arises as to the evidence on which reliance is to be placed to
establish Mr Treacy's two-fold complaint about the impact of these requirements
on low-income families. In the first place there is no evidence that the two
families involved are low-income families or that they were prevented from
undertaking any particular activity for financial reasons. In relation to the
evidence generally Mr Treacy refers to a number of matters, which he says
establish his contention that there is a social bias in these criteria.
He refers first of all to the affidavit evidence from the parents and to
paragraph 10 of the affidavit sworn on behalf of Shea O'Doherty where his mother
considered that the criteria may have discriminated against students from lower
income families. There we have a rather qualified assertion. It is stronger in
paragraph 15 where she says that she believes that the criteria do discriminate
against poorer families. She expresses the view that candidates from lower
income families are more likely to be involved in subsidised extra curricular
activities arranged at school rather than more expensive clubs and activities
arranged by other bodies outside school. However it should be noted that
activities in schools are not disregarded under sub-criterion 3. It is the
certificate that must be obtained by some outside verifying body but one may
develop the activity at school and obtain the certificate from an external
association. These assertions by the deponent do not establish that the
activities which are contemplated by the sub-criteria are beyond the reach of
families on low incomes.
Secondly, reference is made to Mr Durkin's letter of 6 June 2001. He states
that the exclusion of activities organised by the school or group of schools or
clubs means that this provision favours those with private means to fund given
activities. Further he states that in discounting activities organised by
schools you ignore some pupils extra-curricular achievements and do a disservice
to good work in schools and clubs. This approach overstates the effect of these
criteria. It is not the activity in the school that counts but it is the
certificate that counts. The activity in the school obviously provides the
basis for the pupil to gain the certificate so it is by no means overlooked.
What is overlooked under sub-criterion (3) is the school's own certificate
although that does not prevent the activity leading the pupil to gain a
certificate elsewhere. What is required is external verification of committed
involvement in the extra curricular activity.
The third matter to which Mr Treacy referred was the table which provided a
breakdown of the certificates. This does indicate preference for music. The
activities may or may not require private lessons. Music is said to be
principally a middle class preoccupation. I am told by Mr Long from the Bar
that music is free to low-income families in this school. Again I have no
evidence of that assertion but if low-income families have free access to music
that may be the reason so many rely on music as a qualifying certificate. I
just do not have the evidence that there is bias against low-income families
because the principal activity is music. Nor is it apparent when one looks at
the activities that the pupil needs to have particular levels of finance to
obtain road safety and fire safety certificates.
Fourthly, Mr Treacy refers to the Lundy Report. This is a report prepared by
Laura Lundy on Access to Post Primary Schools in Northern Ireland, which
was submitted to the Northern Ireland Human Rights Commission and published in
May 2001. On page 4 of her report she refers to the fact that some criteria
adopted by schools are patently or arguably in breach of legal obligations and
she refers to criteria which prioritise applicants on the basis of ability or
aptitude in sport and music. At page 21 of her report she gives the reasons for
this statement. First the criterion may be unlawful under the 1997 Order as
requiring ability or aptitude and as applying a test or examination. Secondly,
in relation to sport, for instance, there may be discrimination on the basis of
sex. Thirdly the prioritisation of children with certificates in music etc will
almost certainly give an advantage to those already socially advantaged and
therefore raise questions about the compatibility of these criteria with the
objectives of the new targeting social need. If there were no provision for
free music (about which I have no evidence in any event) and if the requirements
were limited to a music certificate there may be an arguable case. However the
requirements are not limited to music but permit a very open ended range of
activity which is not inherently disadvantageous to any particular section of
society.
Fifthly, I am asked by Mr Treacy to take judicial notice of the fact that these
activities are very much middle class matters. There may be assumptions that
might be made about music or indeed about horse riding but I can't make any
assumptions about the other activities and particularly fire safety certificates
and road safety certificates. I don't know whether or not people who are
socially disadvantaged are unable to gain these certificates. There is no such
evidence and nothing compels me to believe that that is so. There is no
evidence that admits of the conclusion that the specified activities
disadvantage low-income families. I am certainly not prepared to assume such
disadvantage given the wide range of activities that can qualify for
acceptance. I am certainly not prepared to assume that low-income families are
less likely to undertake any certificates.
In any event the members of the affected group are socially disadvantaged A
grade pupils. How do pupils from low-income families, who have already gained
A grades despite their circumstances, meet the challenge of extra curricular
activity? There is no evidence on such matters and I am not prepared to make
assumptions about opportunity or preparedness to undertake such activities.
Accordingly, I am not satisfied that the evidential foundation for the
applicant's claim of indirect discrimination has been laid in this case. I have
proceeded on the basis of a number of assumptions under this ground. First I
have assumed, without deciding, that social origin under Article 14 embraces the
socially disadvantaged. Secondly, I have assumed, without deciding, that
financial status is a ground of discrimination. I note the comments of
Lester and Pannick in Human Rights Law and Practice at paragraph
4.14.9 -
"Although Article 14 specifically outlaws discrimination on grounds of
'property' the ECHR has shown itself reluctant to hold that the article
prohibits discrimination on grounds of financial status. In Airey v Ireland
[1979] where the question arose directly, the court preferred to hold that a
failure to provide civil legal aid to an indigent litigant was a substantive
breach of Article 6, taken alone, then finding it unnecessary to consider the
applicant's claim under that article taken with Article 14".
Thirdly, I have assumed, without deciding, that indirect discrimination is
prohibited under Article 14. Lester and Pannick at paragraph
4.14.11 state that –
"The ECHR has yet to rule definitively on whether Article 14 prohibits indirect
discrimination (as well as direct discrimination). It would be surprising,
however, if such discrimination were held to be excluded from the scope of the
article given that the concept of indirect discrimination is well established in
European Community Law and elsewhere".
This issue is also discussed in Clayton and Tomlinson The Law of Human
Rights paragraph 17.90 –
"The question of whether Article 14 prohibits indirect discrimination has not
been addressed by the Court. However, it is strongly arguable that rules which
are neutral on their face should be susceptible to challenge under the
Convention if they are in practice discriminatory. It should be noted, however,
that in a number of cases involving alleged allegations of 'religious
discrimination' the Commission has held that there is no discrimination if a law
of general application has a disproportionate impact on a particular group. It
is not clear whether the indirect discrimination points were specifically
addressed in these cases which, it is submitted, are unlikely to be followed".
The third ground of attack in these applications focussed on the alleged
illegality or unreasonableness of the sub-criteria in four respects.
First, the alleged lack of objectivity or uniformity. Mr Treacy refers to the
legislative history of removing the subjective assessment of pupils as evidenced
by the fact that primary school heads at one time made assessments of the pupils
and that subjective element of the transfer procedure has been moved by
legislation. It is argued for the applicants that, contrary to that legislative
history, there is now a subjective assessment by the Board of Governors of a
list of activities and certificates and awards. I think it is important to
focus on what precisely these two sub-criteria require. As I have indicated
above they require verification of a commitment to extra curricular activity and
not a particular performance standard. In my view requiring a certificate
involves an objective and uniform approach, once it is recognised that it is not
the standard but the verification of committed involvement which is thereby
established.
Then it is argued that the assessment is a subjective matter because the wording
in sub-criterion (3) refers to the judgment of the Selecting Committee. The
judgment of the Selecting Committee is limited to two matters, one being to
establish the requisite award or certificate and the other being the nature of
the activities to which the certificate relates. The Selecting Committee accept
or reject qualifying certificates and qualifying activities.
Secondly, it is argued that the criteria must effect the elimination of a
candidate. The argument is that the sub-criteria do not actually qualify as
criteria because their application includes candidates rather than eliminates
them. This approach is taken from a comment which is made by Laura Lundy
in Education Law Policy and Practice in Northern Ireland at paragraph
4.59
"The definitions of a criteria discussed earlier suggest that the criterion must
itself act as a means of eliminating the individual applicant".
In my view a criterion may effect elimination or it may effect selection.
In the present case it is agreed that sub-criterion (3) effects selection
because it requires a certificate but does not eliminate those without such
certificates. Whether a criterion effects elimination or selection depends
upon how the criterion is drawn and to suggest that it is not a criterion
because it does not eliminate candidates seems to me to be too narrow.
Reliance is also placed on the decision in Farran and Collins (1990) 6
NIJB 72. Hutton LCJ considered (at page 91) that the word "criterion" or
"criteria" suggests that an individual child is to be considered in relation to
each criterion and that the question is –
"Has the child satisfied the particular criterion?"
and not:
"Is the child better qualified, or the higher standard, than another child in
respect of the particular criterion?"
I do not believe that this passage lends any support to the argument that
criteria require elimination and not selection.
Thirdly it was argued that the criteria are not exhaustive as required by
Article 16(5) of the 1997 Order. Article 16(5) states –
"The criteria drawn up under paragraph (1) shall be such as to ensure that the
Board of Governors by applying those criteria can comply with Article 14 before
the criteria are exhausted".
In other words the Board of Governors should not apply the criteria and find
that there are children left and places left that have not been allocated. In
my opinion these criteria are exhaustive. When one looks at what happens after
sub-criterion (4) has been applied and all the places have not been filled, one
sees that there is a process under sub-criterion (5) which has to be applied.
The other applicants at that point are listed on an age basis and if necessary
in alphabetical order. So at the end of the day if there is an excess number of
applicants the Board allocates the places in accordance with age and if there
are children of the same age they are listed in alphabetical order. If there
are more applicants than places the system cannot fail to fill all the places
and therefore I reject the argument the criteria are not exhaustive.
Finally it was argued that the sub-criteria are irrational. It was submitted
that there is conflict between the nature of sub-criterion (3) and sub-criterion
(4) and Mr Treacy referred to some of the examples from each category, with the
former requiring external verification and the latter being satisfied with
internal school or club verification. The school has decided that external
verification is to be preferred to internal verification by the pupils club or
school. That is a perfectly tenable position and could not be described as
irrational. Further Mr Treacy suggested that the criteria embrace a "ragbag of
activities" as he put it, which cannot be compared with each other. Again it
should be noted that the process involves verifying committed involvement in a
particular activity and it is not measuring a level of performance as such, and
in so doing the variety of activities that are involved are not being compared
with each other. It is the fact that you participate in and can verify
involvement in these activities to a committed extent which has to be
established.
Accordingly for all of the
above reasons I am not satisfied that these criteria are unlawful or that the
decisions that has been made here in relation to the applicants should be
quashed. There are a number of additional matters which have arisen during
the hearing.
The first relates to the appropriate remedy if I had made a finding that these
criteria were unlawful for any reason. In Cunningham (1995) Girvan J
questioned what the remedy ought to be in the event of a finding in favour of
the applicant and at page 9 of that decision he says this –
"… the legal consequences of a finding would be by no means clear. Since the
tribunals are precluded from doing anything other than determining whether the
criteria have been applied and correctly applied and since the tribunals cannot
entertain arguments in relation to the validity or legality of the criteria they
are faced with what appears to be an impossible task if the criteria are
unlawful or are incapable of being given a workable meaning. If schools adopt
unlawful or unworkable criteria it may well be that the school is bound to give
effect to parental preference by virtue of Article 36 since the school has not
adopted criteria which would effectively limit the rights arising from the
statutory right of parents to express their preference".
In Trainor (unreported
8 August 1996) Kerr J quashed the decision of a Board of Governors and refused
to quash the decision of the Tribunal. He said in response to the argument
that the Tribunal should have acknowledged the incompatibility of certain
matters and should have concluded that the direct application of the admissions
criteria was only possible if certain matters were ignored -
"Such an approach would confer on the Tribunal a role to examine the criteria
with a view to ascertaining their consistency with statutory provisions. It is
clear from an examination of the general framework of the legislation that this
was not the intention of the legislature".
Both these cases refer to the limited role of the appeal Tribunal, which is set
out in Article 15(4) of the 1997 Order. Article 15/4 provides that –
"An appeal under this Article may be brought only on the ground that the
criteria drawn up under Article 16(1) by the Board of Governors of a school –
(a) were not applied; or
(b) were not correctly applied.
in deciding to refuse the child admission to the school".
If the criteria applied are found by the Court to be unlawful then they ought
not to have been applied by the Board of Governors and therefore the Tribunal,
if reconsidering the matter on the direction of the court, would find that the
criteria to be applied were not correctly applied because they took account of
unlawful criteria. In those circumstances, if the matter were referred
back to the Tribunal with directions that the criteria were unlawful and that
the matter should be considered without regard to the unlawful criteria,
Articles 15(5) and (6) would apply. Article 15(5) provides –
"On the hearing of an appeal under this Article –
(a) if it appears to the appeal tribunal that the criteria were not
applied, or were not correctly applied, in deciding to refuse the child
admission to the school, the tribunal shall subject to paragraph (6) allow the
appeal and direct the Board of Governors of the school to admit the child to the
school;
(b) in any other case, the tribunal shall dismiss the appeal".
So if it is the case that by applying unlawful criteria the Board are not
correctly applying criteria then the Tribunal has the power to direct that the
school should admit the child. By Article 16(6), if it appears to the
Tribunal that, had the criteria been applied correctly, the child would have
been refused admission then it shall dismiss the appeal. That scheme seems
to me to allow the Tribunal to determine whether, in the event that the criteria
had been applied correctly ie without reference to the offending criteria, the
child would have been granted or refused admission, and the Tribunal shall allow
or dismiss the appeal accordingly. In the present case, if one were to
disregard the offending criteria, it is possible to determine whether or not
these children would have been admitted because the remaining sub-criterion (5)
depends upon an age assessment. There is available the list of ages and it
would be possible to determine whether or not these children fall within the 78
places which were available after the application of sub-criteria (1) and (2).
This is not to suggest that the Tribunal should become judges of the criteria as
this would only arise on a reference back to the Tribunal by the Court with
appropriate directions. I am not so attracted by the alternative to this
approach, which would have been to quash the decision of the Board of Governors
and allow them to reconsider the matter in the light of the remaining criteria,
because they cannot increase the admissions number to the school. I was
informed by Counsel that had the sub-criteria been found to be unlawful the
school would reassess all the children who had been introduced under the
unlawful criteria. I do not believe that such an approach would have been
necessary and I would not have considered making any order which would have had
that effect. The solution in the present case, had I decided that these
criteria were unlawful, would have been to refer the matter back to the Tribunal
with appropriate directions. That may not be appropriate in other cases.
The second additional matter is the question of delay. The respondents referred
to the publication of the criteria in this case in February 2001. The
applicants refer to the notices of decision having been made in June 2001. I
agree with the approach taken on this issue by Mr Justice Kerr in Trainor.
Applicants are justified in pursuing appeals to the appeal Tribunal before
launching applications for judicial review. For this reason I am not prepared
to refuse relief on the grounds of delay.
Lastly, the respondents contend that the appropriate applicant should be the
parent. This approach is based on a decision of the Court of Appeal in England
and Wales in the case of Re J C (Unreported 31 July 2000).
At paragraph [31] Kennedy LJ
stated the matter in this way –
"I am satisfied that where a parent wishes to challenge a local education
authority or an appeals committee in relation to the handling of a parents'
expression of preference as to the school at which his or her child should
attend it is the parent and not the child who should mount the challenge. I
accept that the child may have sufficient interest to mount a challenge, and in
some exceptional cases it may be appropriate for the child to make the
application for permission to apply for judicial review but normally as it seems
to me, the only reason why the application is made in the name of the child is
to obtain legal aid, and to enable the parents to protect themselves in relation
to costs, that I regard as an abuse. Our legal system works upon the basis that
those who seek a remedy should expose themselves in relation to costs. It the
devise is used in future, permission to apply for judicial review may well be
refused on that ground".
Miss Gibson on behalf of the Admissions Appeal Tribunal did not concede that the
children had a sufficient interest to apply on their own behalf but in my view
it is apparent that a child does have sufficient interest to apply on his or her
own behalf. The legal aid department was made aware of this issue by
correspondence from the Education and Library Boards Legal Service in March 2001
which attached a copy of the above judgment. While it is the established
practice in this jurisdiction that applications are made by the child there is a
legitimate concern about any unnecessary drain on the legal aid fund and in
particular any drain on the schools budget in the event that the respondents are
successful in resisting an application from a legally aided child. This in
my view is a matter for further consideration by the legal aid department but I
am not prepared to require the present applications to proceed in the names of
the parents after the legal aid department had granted legal aid in their cases
with the knowledge of the remarks of the members of the Court of Appeal in
England and Wales. In the event I am dismissing the applications with no
order for costs save for the legal aid taxation of the applicants' costs.
Transcribed: 20 August 2001
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