AS TO THE ADMISSIBILITY OF
Application No. 14138/88
by Adam CONNOLLEY
against the United Kingdom
The European Commission of Human Rights sitting in private on
2 October 1989, the following members being present:
MM. C.A. NØRGAARD, President
A.S. GÖZÜBÜYÜK
A. WEITZEL
J.C. SOYER
H.G. SCHERMERS
H. DANELIUS
G. BATLINER
J. CAMPINOS
H. VANDENBERGHE
Mrs. G.H. THUNE
Sir Basil HALL
M. F. MARTINEZ
Mr. L. LOUCAIDES
Mr. H.C. KRÜGER, Secretary to the Commission
Having regard to Article 25 of the Convention for the
Protection of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 8 July 1988
by Adam CONNOLLEY against the United Kingdom and registered on
23 August 1988 under file No. 14138/88;
Having regard to the report provided for in Rule 40 of the
Rules of Procedure of the Commission;
Having deliberated;
Decides as follows:
THE FACTS
The applicant is a British citizen, born in 1942 and resident
in Leamington. He is represented before the Commission by Mrs. J.
Macfarlane, Principal lecturer in law, Anglia Higher Education College.
A. The particular facts of the case
The facts of the present case, as submitted by the applicant,
may be summarised as follows:
The applicant has a son, Adam, born in 1979, who has
"cri-du-chat" syndrome, a chromosomal abnormality resulting in his
delayed development in areas of expression and language. The
applicant has consistently rejected Adam's placement in a segregated
environment. Whilst recognising his special needs, the applicant
believes that they are not met in a special school which will not
allow Adam to develop his full potential. Adam made progress in a
mixed ability child playgroup and a normal school environment was
recommended by one of the child psychologists assessing his needs and
a social worker.
On 7 March 1985 the local education authority (LEA) issued its
assessment of Adam's educational needs in a "statement of special
educational needs", pursuant to sections 5 and 7 of the Education Act
1981. They found, on the basis of a report by their educational
psychologist, that "Adam has a chromosomal abnormality causing severe
delayed development. He therefore needs considerable individual
attention to help develop his potential". They considered that he
needed "a very small protective teaching environment where all
learning is carefully structured ..." They proposed to place him in
the nearest appropriate special day school. The applicant
unsuccessfully appealed to a local appeal committee under section 8
(1) and (2) of the 1981 Act. A further appeal to the Secretary of
State for Education under section 8 (6) and (7) of the 1981 Act, which
was lodged on 8 September 1986, was rejected a year later on 23
September 1987.
Since then the applicant has sought to negotiate with the LEA
to secure an alternative form of education for Adam other than in a
segregated school where, he claims, the pupils' handicaps are
exaggerated and the children are over-protected and unprepared for
life in the outside world. The LEA offered to place Adam in a normal
school for two days of the week, with three days at the special
school. The applicant accepted this solution temporarily, but
considered it inadequate for Adam's needs and the rights of both of
them to have Adam educated in an environment which allows him maximum
potential for social and intellectual development. Subsequently Adam
was placed full time in a special school after long attempts to
achieve a supported mainstream place failed.
B. The relevant domestic law
Section 8 of the Education Act 1944 (the 1944 Act) creates a
statutory duty on local authorities to provide suitable primary and
secondary full-time education "to afford for all pupils opportunities
for education offering such variety of instruction and training as
may be desirable in view of their different ages, abilities, and
aptitudes ...". In particular local authorities must provide
appropriate special education for disabled children. This duty was
reinforced by the Education Act 1981. The LEA's duties are
enforceable, pursuant to a parent's complaint or otherwise under
sections 68 and 99 of the 1944 Act, by the Secretary of State for
Education. He may seek an order of mandamus against a recalcitrant
LEA. A subsidiary obligation is placed upon parents to secure
suitable education for their children in accordance with their age,
aptitude and ability. This latter obligation is ultimately
enforceable through criminal proceedings (sections 36, 37 and 39 of
the 1944 Act). Section 76 of the 1944 Act requires education
authorities to have regard to parents' wishes so far as is compatible
with the provision of efficient instruction, and the avoidance of
unreasonable public expenditure.
By virtue of the Education Act 1981 (the 1981 Act) LEAs are
required to meet the special educational needs of handicapped children
in their area but, if possible, not to segregate them from other
children, provided that parents' wishes have been taken into account
and provided that this is compatible with the making of the special
educational provision required, the provision of efficient education
for the other children and the efficient use of resources (section 2
of the 1981 Act). Section 5 of the 1981 Act enables the LEA to assess
the special educational needs of disabled children, in respect of
which assessment the parents may make representations and submit
written evidence. If the LEA decides that a child's special
educational provision is called for, they must make a statement of the
child's special educational needs and make suitable arrangements to
meet them (section 7), even if it means placing the child in a school
outside the LEA's jurisdiction (section 6 of the Education
(Miscellaneous Provisions) Act 1953). Special educational assessments
are subject to periodic review. Parents may appeal against the LEA's
statement to an appeal committee which may confirm the special
educational provision contained in the statement in the light of the
circumstances of the case at the time of the hearing of the appeal, or
remit the case to the LEA for reconsideration in the light of the
committee's observations (section 8 (1), (2) and (4)). Appeal
committees comprise three, five or seven members, drawn from the local
education authority and people who have experience in education and
are acquainted with educational conditions in the area (Schedule 2
Part I of the Education Act 1980).
Following the confirmation or remit of a case, the parents may
finally appeal to the Secretary of State for Education who may
confirm, amend or annul the LEA's statement (section 8 (6) and (7) of
the 1981 Act). These appeals are normally dealt with by Ministry of
Education civil servants, not the Minister himself. There is no right
to an oral or adversary hearing with this form of appeal.
Judicial review of the Secretary of State's decisions, or any
binding decision of an appeal committee, will lie on the "Wednesbury
principles", i.e. if they are tainted by irrationality, illegality or
procedural impropriety. An action for a declaration or damages for
breach of statutory duty may also be available.
In general LEA's must respect parental choice of schools
(section 6 of the Education Act 1980). Section 7 (1) of the 1980 Act
provides for an appeal by parents against an LEA's decision concerning
school admissions or a school's refusal to accept a pupil. This
appeal is to the appeal committee, but section 7 (5) of the 1980 Act
renders the appeal committee's decision fully binding on the LEA or
school concerned. A similar binding appeal to an appeal committee is
available under section 26 of the Education (No. 2) Act 1986 on the
question of a child's expulsion from a school.
COMPLAINTS
The applicant claims to be a victim of a violation of Article
2 of Protocol No. 1 to the Convention which, in his view, guarantees
the provision of a reasonable range of practical choices within the
State school system for parents in respect of their children's
schooling. He submits that this has not been met in the present
case. The applicant holds deep philosophical convictions about the
type of schooling best suited to his son's needs and believes that
segregated education is inappropriate and harmful in the long-term to
him due to its overall fundamental direction. The assumptions about
Adam's learning potential underlying segregated education are wholly
rejected by the applicant. The applicant recognises that Adam
requires an education with a low teacher/pupil ratio, but this can be
provided by the specialist units within the integrated, mainstream
schools, thus involving no unreasonable public expenditure and
contributing to efficient instruction and training.
The applicant also claims that he is a victim of a breach of
Article 14 of the Convention, read in conjunction with Article 2 of
Protocol No. 1, because as a parent of a child with learning
difficulties he has fewer educational options to choose from than
parents of normal children. Adam's education offers him less
intellectual and social opportunity than that which a child without
disabilities could expect within the United Kingdom State education
system. The continuing segregation of handicapped children has no
objective or reasonable justification in the light of contemporary
knowledge, as demonstrated in countries like Denmark and Italy, and is
disproportionate. The rights and freedoms of able children in a
mainstream school would not be infringed, instead they would benefit,
their understanding and tolerance being enhanced.
The applicant contends that the refusal to provide Adam with
a place in a mainstream school and the manner in which the LEA has
handled Adam's case constitute an unjustified interference with the
quality of his family life, contrary to Article 8 of the Convention.
Finally, the applicant complains of a breach of Article 6
para. 1 of the Convention on its own as regards allegedly unreasonable
delay in the whole proceedings, and together with Article 14 as
regards the absence of any decision making powers of the local appeal
committee concerned under section 8 (1) and (2) of the Education Act
1981, compared with the decision making powers of this committee when
dealing with other education appeals concerning school placement under
section 7 of the Education Act 1980.
THE LAW
1. The applicant has complained that the British education
authorities have failed to respect his right to have his disabled son,
Adam, educated in accordance with his philosophical convictions, i.e.
educated in a normal school. He contends that there is a lack of
adequate choice of State schools for parents of disabled children and
claims to be a victim of a violation of Article 2 of Protocol No. 1
(P1-2) to the Convention which reads as follows:
"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."
The Commission leaves open the question whether the applicant
has complied with Article 26 (Art. 26) of the Convention because it
finds the application anyway inadmissible for the reasons developed
below. Moreover, it also leaves open the question whether the
applicant's disagreement with the education authorities about the
appropriate school for Adam could be said to be based on deep-founded
philosophical convictions rather than a difference of view as to the
best way of providing Adam with an education. Even assuming that the
applicant's philosophical convictions may be at issue in the present
case, the Commission refers to the dominant character of the child's
right to education in Article 2 of Protocol No. 1 (P1-2) to the Convention
(cf. Eur. Court H.R., Kjeldsen, Busk Madsen and Pedersen judgment of
7 December 1976, Series A no. 23, p. 25, para. 52).
The second sentence of Article 2 (Art. 2) requires the State in
exercising any educational function to ensure that the education and
teaching of a child is as far as possible in conformity with the
parents' religious and philosophical convictions. This requirement
extends not only to the matter taught but to other aspects of the
educational function (cf. Eur. Court H.R., Campbell and Cosans
judgment of 25 February 1982, Series A no. 48, p. 14, para. 33). It
does not, however, require the State to provide special facilities to
accommodate particular convictions though it may affect the use of
existing facilities (No. 7782/77, Dec. 2.5.78, D.R. 14 p. 179). In
this context reference should be made to the United Kingdom
Government's reservation to this provision, accepting the second
sentence of Article 2 (Art. 2) "only so far as it is compatible with the
provision of efficient instruction and training and the avoidance of
unreasonable public expenditure".
The Commission notes that, in the same vein as the
aforementioned reservation, section 2 of the Education Act 1981
provides that a child with special educational needs should be
educated in an ordinary school if that is compatible with the special
education the child requires, the provision of efficient education for
other children at the school and the efficient use of resources.
The Commission observes that there is an increasing body of
opinion which holds that, whenever possible, disabled children should
be brought up with normal children of their own age. The Commission
recognises, however, that this policy cannot apply to all handicapped
children. It further recognises that there must be a wide measure of
discretion left to the appropriate authorities as to how to make the
best use possible of the resources available to them in the interests
of disabled children generally. While these authorities must place
weight on parental convictions, it cannot be said that the second
sentence of Article 2 (Art. 2) requires the placing of a child with severe
learning difficulties in a general school (with the expense of
additional teaching staff which would be needed) rather than in an
available place in a special school.
In the present case the Commission notes that the expert
opinion of the education authorities considered that Adam had a severe
development delay requiring a very small protective teaching group
which could not be provided in a normal school. A compromise was,
however, achieved whereby Adam attended a normal school two days a
week, with three days at a special school in the applicant's home
town. This arrangement has not lasted for reasons which have not been
elaborated by the applicant. However, in these circumstances the
Commission finds that the education authorities have respected the
applicant's views, even if they have not been fully met, and have
respected Adam's right to have an as effective education as possible.
The Commission concludes that the present case does not disclose any
appearance of a violation of Article 2 of Protocol No. 1 (P1-2) to the
Convention. It follows that this aspect of the application is
manifestly ill-founded, within the meaning of Article 27 para. 2
(Art. 27-2) of the Convention.
2. The applicant has also complained of discrimination, in breach
of Article 14 of the Convention read in conjunction with Article 2 of
Protocol No. 1 (14+P1-2), insofar as there are allegedly fewer
educational options for disabled children compared with able children
within the State school system. However, the applicant has not
substantiated this claim. The Commission notes that the relevant
legislation encourages the integration of handicapped children in
normal schools, but provides that their special needs be met, if
necessary in specialised institutions. The Commission finds no
element of discrimination in such a policy, but rather the contrary,
the special requirements of certain disabled children being catered
for where necessary. In these circumstances the Commission concludes
that this part of the application is manifestly ill-founded within the
meaning of Article 27 para. 2 (Art. 27-2) of the Convention.
3. The applicant has next contended that the refusal to provide
Adam with a place in a mainstream school, full-time, was in breach
of his rights under Article 8 (Art. 8) of the Convention, the relevant
part of which reads as follows:
"1. Everyone has the right to respect for his ...
family life ...
2. There shall be no interference by a public authority
with the exercise of this right except such as is in
accordance with the law and is necessary in a democratic
society ... for the protection of ... the rights and
freedoms of others."
However, the Commission notes that the educational authorities
fully considered the applicant's views and at one stage proposed that
Adam be placed part-time in a normal school, two days a week. It
would not appear, therefore, that these authorities have failed to
respect the applicant's right to respect for family life. Moreover,
even assuming that the refusal to provide full-time normal education
for Adam could be said to have been an interference with the
applicant's Article 8 (Art. 8) right, the Commission finds such
interference justified, as being in accordance with the law and
necessary in a democratic society for the protection of the rights
of others, namely Adam's right to a suitable education for his
disabilities. The Commission concludes that this complaint is also
manifestly ill-founded, within the meaning of Article 27 para. 2
(Art. 27-2) of the Convention.
4. The applicant has complained that the one year delay taken by
the Secretary of State for Education to review Adam's educational
assessment under section 8 (6) and (7) of the Education Act 1981 was
unreasonable and in breach of the "reasonable time" requirement laid
down in Article 6 para. 1 (Art. 6-1) of the Convention, the relevant
part of which provides as follows:
"In the determination of his civil rights and obligations
... everyone is entitled to a fair and public hearing
within a reasonable time by an independent and impartial
tribunal established by law ..."
However, the Commission finds that the review procedure before
the Secretary of State is not a determination, within the meaning of
this provision, of civil rights and obligations. Article 6 para. 1
(Art. 6-1) of the Convention is, therefore, not applicable to this
review and the applicant's complaint about a delayed review must be
rejected as being incompatible ratione materiae with the provisions of
the Convention, pursuant to Article 27 para. 2 (Art. 27-2).
5. Finally the applicant has complained of discrimination, in
breach of Article 14 (Art. 14) of the Convention read in conjunction
with Article 6 para. 1 (Art. 6-1) (civil rights), insofar as appeal
committees acting under section 8 (1) and (2) of the Education Act
1981 have fewer decision making powers when dealing with parental
appeals under section 8 (1) and (2) of the Education Act 1981, than
they have when dealing with appeals under section 7 of the Education
Act 1980. The former appeals concern special educational provision
for disabled children, the latter appeals concern disputes over
placements in normal schools.
However, the Commission considers that these committees are
not determining, within the meaning of Article 6 para. 1 (Art. 6-1) of
the Convention, parents' civil rights and obligations. The committees
are made up of education experts who review the educational needs of
the pupils concerned. Article 6 para. 1 (Art. 6-1) of the Convention
is not, therefore, applicable to this review and no question of
discrimination under Article 14 (Art. 14) of the Convention arises, as
this latter provision is limited to the prohibition of discrimination
in the securement of Convention rights. It follows that this aspect
of the case must also be rejected as being incompatible ratione
materiae with the provisions of the Convention, pursuant to Article 27
para. 2 (Art. 27-2).
For these reasons, the Commission
DECLARES THE APPLICATION INADMISSIBLE.
Secretary to the Commission President of the Commission
(H.C. KRÜGER) (C.A. NØRGAARD)
Full & Egal Universal Law Academy