AS TO THE ADMISSIBILITY OF
Application No. 13884/88
by Alan NORTHCOTT
against the United Kingdom
The European Commission of Human Rights sitting in private on
5 May 1989, the following members being present:
MM. J.A. FROWEIN, Acting President
F. ERMACORA
G. SPERDUTI
E. BUSUTTIL
G. JÖRUNDSSON
A. WEITZEL
H.G. SCHERMERS
H. DANELIUS
J. CAMPINOS
H. VANDENBERGHE
Mrs. G.H. THUNE
Sir Basil HALL
MM. F. MARTINEZ
C.L. ROZAKIS
Mrs. J. LIDDY
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 11 September
1987 by Alan NORTHCOTT against the United Kingdom and registered on
24 May 1988 under file No. 13884/88;
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 citizen of the United Kingdom, born in 1952
and resident in Plymouth. He is unemployed.
The facts of the case as submitted by the applicant, and which
may be deduced from documents accompanying the application, may be
summarised as follows:
The applicant has a son, Nicholas, born in December 1973, who
is profoundly deaf. The child was assessed by his local education
authority (LEA) as having special educational needs in 1976, his
hearing impairment being compounded by other difficulties. Until the
age of ten he attended the Hartley House School for the Deaf in
Plymouth where he received exceptional educational provision with
one-to-one support full time from a qualified teacher of the deaf and
also from a classroom assistant. He was taught mostly in isolation
from other pupils at the school. The LEA had decided not to send the
son to a specialised boarding school earlier out of respect for the
applicant's view that separating Nicholas from his family in the early
years could have had an adverse effect on his development. Hartley
House School was closed in July 1984 because with just 21 pupils
having a wide age (2-17 years) and ability range it proved
increasingly difficult to provide a full curriculum for all pupils.
The son was subsequently placed in two local special schools,
but his difficulties in learning, communication and behaviour became
more apparent. The LEA considered that it had no school in its region
which could provide for the son's complex needs and recommended that
he be sent to a boarding school, the Royal School for the Deaf, in
Manchester. The applicant objected to the proposal because that
school is 450 miles from the family home and he feels that his son
would suffer great distress if sent to a boarding school.
On 24 February 1987, the LEA issued a formal Statement under
Section 7 of the Education Act 1981 certifying the boy's special
educational needs and proposing placement at a special school able to
offer appropriate educational and social programmes for pupils with
profound hearing loss and associated difficulties, such as the Royal
School for the Deaf in Manchester.
The applicant has refused to follow this recommendation and
his son has not attended school for 18 months. He is now faced with
the child being made a ward of court by the LEA with a view to sending
him to the said boarding school.
The applicant appealed against the LEA's Statement to the
Local School Admissions Appeal Committee which upheld the LEA decision
on 21 May 1987 as follows:
"Having taken into account all the evidence given and the
written material before them the Committee were of the view
that (Nicholas') learning, behavioural and emotional
problems could only properly be treated in a school with
both specialist teachers and resources where Nicholas would
be in a peer group in which he would have the opportunity
to overcome his communication problems. They appreciated
that there are perhaps only three such establishments in
the country. Accordingly the Committee resolved to confirm
the special education provisions specified in the Statement
issued by the Local Education Authority in respect of
Nicholas under Section 7 of the Education Act 1981."
On 6 October 1987 the LEA's decision was also confirmed on
appeal by the Secretary of State for Education under Section 8(6) of
the Education Act 1981, although the Secretary of State drew the
parties' attention to the need for annual reviews of the child's
situation. The applicant states that he was refused legal aid for
judicial review of this decision.
On 23 November 1987, the Local Ombudsman of the Commission for
Local Administration in England found no evidence of maladministration
in the case.
COMPLAINTS
The applicant complains to the Commission that the local
authority has failed to make provision for the education of his son
locally and that there has been a breach of Article 2 of Protocol
No. 1 to the Convention. He believes that his son would not be
offered a proper education in Manchester, because being away from his
home would cause him to regress.
THE LAW
The applicant has complained that his local education
authority (LEA) has failed to provide education for his deaf son near
the family home and that the decision of the various education
authorities to educate the child at a specialised boarding school
450 miles away from home is in breach of Article 2 of Protocol No. 1 (P1-2)
to the Convention. The applicant believes that his son would suffer
distress at a boarding school and regress educationally.
Article 2 of Protocol No. 1 (P1-2) provides 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 has first examined the applicant's rights as a
parent under the second sentence of Article 2 of Protocol No. 1 (P1-2). The
Commission leaves open the question whether the applicant's
disagreement with the analysis made by the education authorities of
the child's special educational needs could be said to be based on
deep-founded religious or philosophical convictions, rather than on
natural hesitations about sending his child away to boarding school.
However, 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, handicapped 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 handicapped 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 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 child is now
15 1/2 years of age and the expert opinion of the education authorities
is that he has complex difficulties in learning, communication and
behaviour which require costly specialised tuition unavailable
locally. The education authorities have proposed such tuition in a
specialised boarding school far from the family home, but, given
school holidays, this does not entail a complete separation of the
family. Moreover the placement at the boarding school is not
necessarily a permanent solution as the child's progress will be kept
under regular review.
In these circumstances, 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 the
application is manifestly ill-founded within the meaning of Article 27
para. 2 (Art. 27-2) of the Convention.
For these reasons, the Commission
DECLARES THE APPLICATION INADMISSIBLE.
Secretary to the Commission Acting President of the Commission
(H.C. KRÜGER) (J.A. FROWEIN)