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England and Wales Court of Appeal (Civil Division) Decisions

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Cite as: [2002] EWCA Civ 191

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Neutral Citation Number: [2002] EWCA Civ 191


Royal Courts of Justice
London WC2A 2LL
Wednesday 30 January 2002

B e f o r e :





(Computer Aided Transcript of the Palantype Notes of
Smith Bernal Reporting Limited, 190 Fleet Street,
London EC4A 2AG
Tel: 020 7421 4040 Fax: 020 7831 8838
Official Shorthand Writers to the Court)


MR GERARD CLARKE (Instructed by Messrs Ashok Patel & Co, London, SW17 7BD) appeared on behalf of the Applicant.
The Respondent did not attend and was not represented.



Crown Copyright ©

  1. LORD JUSTICE THORPE: There have been proceedings brought under the Children Act 1989 in the Wandsworth County Court concerning NS, a boy who is 13 years of age. The proceedings have been generated by the strengthened sincerity of the parents' convictions on a number of topics, which have brought them into disagreement and have obliged a judge of the court to settle the dispute on the application of the principles to be found in Section 1 of the Act.
  2. Section 1(1) requires the judge, in determining any question with respect to the upbringing of a child, to have regard to the child's welfare as the court's paramount consideration. Section 1(3) requires the judge to have regard, in particular, to a statutory check list with considerations running from A to G in any case where the court is considering whether to make, vary or discharge a section 8 order.
  3. The latest contentious issue between the parents of NS concerned the school that he should attend. The issue fell for decision by His Honour Judge Compston on 3 September 2001. The order that resulted from that hearing was that NS leave Sankofa Learning Centre and attend a mainstream secondary school, Ernest Bevin College.
  4. Mr Clarke, on behalf of the mother, makes some point of the fact that the father was represented by counsel and the mother was not. Nowadays, that is a commonplace situation in litigation under the Children Act. I do not see that it bears in any way either on the determination of the judge or the determination of the application before us.
  5. When the judge delivered his reserved, written judgment on 27 September 2001, he specifically acknowledged the mother's intelligence and her articulate communication. We do not have a transcript of the judgment, but we do have what appears to be a full and careful note taken by counsel who whose was instructed for the father.
  6. The issue that the judge had to decide, as paragraph 1 of the order has already revealed, was whether NS should continue at the Sankofa Learning Centre, which was his mother's strong preference, or whether he should revert to mainstream education, particularly at the Ernest Bevin College, which was his father's strong preference.
  7. Fortunately the judge did not have to decide that issue unaided. As well as a written report from what was then the court welfare officer in the summer of 2000, the judge heard from an expert, Jill Head. The judge described her as "objective and very, very experienced". Her qualifications were self evident. She had been a headteacher in a Lewisham Primary School until 1991. Between 1991 and 1995 she was an inspector for Oxford local authority and was a lecturer. She had then become an OFSTED Inspector, inspecting more than 120 schools. On one third of those inspections she had been the leader of the team. The judge was very impressed by her evidence. He described her as "very responsible. She came across as a very sensible, balanced and decent person. She had no prejudice against the home education system. She was cool and clinical".
  8. Jill Head had visited Sankofa on 18 September 2000. She said:
  9. "I was shown examples of [N's] written work from September 1999, when he first started attending the centre. In samples of his work in the autumn term, his handwriting is well formed and his work well presented. His spelling and grammar are of a higher standard than average for his age. However, this high standard is not sustained and the quantity and quality of his work, as seen in the samples I was shown, appears to have deteriorated during the year, to the extent that there were no samples of written work at all in the summer term. The decline in the quality of his work is replicated across all subjects."
  10. That report concluded with this comment:
  11. "The most beneficial aspect of [N's] present educational arrangements is his very positive attitude to the centre."
  12. She recommended:
  13. "The education [N] is receiving meets his social needs and provides him with a positive learning environment. However, from the evidence seen, it is not providing him with a sufficiently broad and balanced curriculum to match his ability and aptitude, particularly in English, mathematics and science. I recommend that provision be made to address this weakness."
  14. It seems that no steps were taken in reaction to the recommendation. Miss Head returned to Sankofa on 27 June 2001. Having spent 2½ hours there, she was in a position to make some assessment. In her second report she noted that N was doing no computer studies and no foreign languages. Her conclusions were not encouraging in history, geography, ICT, Art, Design and Technology, Music and Physical Education. Her conclusion was:
  15. "[N] still has a positive attitude towards his education at the centre. His social needs are broadly being met through his daily contact with the other students and his life outside the centre.
    The confidence his mother showed in the education provision offered by the Centre has not borne fruit in the work I saw or the test results. [N] is a bright boy and based on the evidence I saw he is not achieving the standards I would expect in the core subjects of English, mathematics and science. It is not possible to make a judgment about his standards in ICT because no evidence was provided. However [N] says he seldom has access to a computer at the Centre so it is reasonable to assume he is not attaining average standards in ICT. His curriculum is rather narrow and also lacks sufficient challenge. From the evidence provided by the Centre and conversations with [N], he appears to have made little discernible progress since my last visit."
  16. In her recommendations she said:
  17. "The weaknesses in the education provision for [N] that I highlighted when I last visited have not been adequately addressed. [N] is not achieving a broad and balanced education to match his ability and aptitude. I therefore recommend that he return to the mainstream education system as soon as possible. However, both [N] and his mother will need support to accept mainstream school. It is in his best interests. Without their acceptance, his transfer to a secondary school is unlikely to succeed."
  18. The judge expressed the hope that N, his mother and father would have taken that point on board.
  19. The judge also referred to the other evidence that he had heard. He dealt specifically with the range that Sankofa had to offer. He was very impressed by the evidence he heard as to Sankofa by its leader, Mr Phillips, who he described as "impressive and thoroughly commendable". He said of Sankofa:
  20. "It is loving and supportive. The children are happy and are learning how to cope in a difficult world. But they have to be educated."
  21. The judge also dealt with the evidence of the parents, each of whom he took to be highly intelligent, although he found the father to be more generous and less steely in debate than the mother.
  22. In conclusion the judge expressed his opinions by reference to a skeleton argument that had been produced by the father's counsel. He considered point by point the argument addressed in the skeleton as well as the mother's response. On each point he gave his own conclusion. That was a perfectly sensible way of covering the necessary ground in the discharge of his duty under section 1(3) of the Act.
  23. The application for permission was advanced to this court by a skeleton dated 9 December 2001, settled by Mr Juss. We have had the advantage of argument from Mr Clarke, who essentially adopts the written skeleton and proceeds to advocate it. I suspect that Mr Clarke is not a specialist advocate in the family justice system, and I suspect that he has great expertise in the field of administrative law. Accordingly, it is not surprising that he has suggested that the judge in the court below reached the wrong conclusion because he received no submissions either as to the application and effect of the Education Act or of the Human Rights Act.
  24. In my view the first criticism is vain. The judge had to decide this case in accordance with the duties imposed on him by section 1 of the Children Act 1989. I do not see that the Education Act, had it been cited to him, would have been of much, if any, moment. There was no contention on behalf of the father that Sankofa was not, as learning centres go, an excellent centre. The judge himself applauded the centre and its leader. Nor was there any suggestion that Ernest Bevin secondary school was not a school that would apply the standards set by the Education Act. It was contended that it was not the right school for this little boy.
  25. The suggestion that the judge might have reached a different conclusion had he been specifically referred to the Human Rights Act seems to me equally vain. In this jurisdiction specialist judges in the county court are only too well aware of the advent and impact of the Human Rights Act. There is scarcely a case in which one side or other does not invoke its terms. But, in reality, where parents are in dispute and where one or both may assert their rights, in the end the judge has to have regard to the rights of the child and to search, above all, for the welfare principle as paramount. Even had Mr Clarke appeared for the mother in the court of trial, I do not think the judge would have been deflected from the conclusion that he reached by the arguments that Mr Clarke has advanced today.
  26. I do not see there is any great point of principle here. I do not see that there is any difficulty in the interface between these two statutes, certainly as far as this case reveals. I would dismiss this application.
  27. LORD JUSTICE BUXTON: I agree. As my Lord has said, the attempt in this court, though not in the court below, to submit this case to the discipline either of the Education Act or of the Human Rights Act is, in both instances, misconceived. The provisions of the Education Act that Mr Clarke relied upon are directed at considering whether a particular form of education is "efficient". It is well accepted that, within that broad heading, education that is outside the mainstream, state-provided, system of education, such as the education provided at the Sankofa school, may well qualify for such a description as "efficient".
  28. As my Lord has said, it has never been the father's contention that, by reason of the child going to the Sankofa school, the mother is failing to fulfil her obligations under the Education Act to ensure that he is efficiently educated. Similarly, in my judgement, it would be impossible to contend that the education at the Ernest Bevin College did not fulfil that requirement. Under some pressure from the court, Mr Clarke sought to suggest that, because of the particular views of the child (and I suspect even more so the particular views of the mother) with regard to education within the mainstream system, and also because of certain experiences, it was alleged, of an unfortunate nature the child had undergone at the College, it might be arguable that the education there was not "efficient" in his case. That contention was never advanced below, it was unsupported by anything that could properly be considered to be evidence and was not sustainable in this court. Quite apart from the inherent implausibility of the contention, the criteria under the Education Act was intended for broad application to a category of children rather, than for application to individual cases.
  29. The case, therefore, is one where both forms of education contended for by the parents fulfil the Education Act requirements. In those circumstances the judge was placed in the invidious position of having to decide, as his Children Act responsibility requires, to which of those two different systems the child should go. As my Lord has said, he made that decision with extreme care. He took into account the mother's views about education in a particular community and was well aware of them. He took into account the evidence that the child was allegedly happy at Sankofa and did not think he would be happy at Ernest Bevin. As the judge said, happiness is one thing, it is also important to be educated. That was a view, as the court put to Mr Clarke, that a responsible parent could quite properly take if it were the parent rather than the court making the decision in respect of the child. It is a view plainly open to the judge on the evidence and one with which this court should not interfere.
  30. So far as the Human Rights Act is concerned, as my Lord has said, this, like many cases that come before this court, is a case where the parents do not agree as to the proper requirements for the child's education. Article 2 of the First Protocol of the Human Rights Convention says that the state has to respect the right of parents to make sure that children are educated "in conformity with [the parents'] own religious and philosophical convictions". In this case there are, regrettably, two sets of warring convictions: it is plainly right to apply the word "convictions" to them. Religious and philosophical convictions under Article 2 can encompass a wide range of beliefs. I accept that they extend to the beliefs that the mother has about education within, and in conformity with, the mores of a particular community. I equally accept that what are, plainly, the father's very strongly held beliefs in the nature of education and what education should provide for the child, also clearly fall within the criteria of philosophical convictions under Article 2.
  31. In those circumstances, the rules of the Convention do not assist the court because the court has to decide between two strongly held beliefs and has to decide, in the interests of the child which is the overriding consideration under the Children Act, which of those beliefs should prevail. Similarly, so far as (what in this case was a somewhat formalistic view) Article 8 is concerned, Article 8 is concerned with family life. But here we have, regrettably, a family that is split asunder and the views of those who are members, or potential members, of that family have to be taken into account; those of the father as well as those of the mother. Again, therefore, reference to the Human Rights Act would not have assisted the judge.
  32. The judge, therefore, did not suffer, nor did the parties, from the fact that the detailed argument available to this court was not before him. Like my Lord, I consider that he reached an impeccable decision in a difficult and unwelcome case. I would not grant permission.
  33. Order: Permission to appeal refused. Detailed assessment of applicant's costs payable out of Community Legal Service Fund.

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