About this case:

• Citation:
  [2024] NICA 34
• Judgment:
  External link
• Court:
  NI Court of Appeal
• Judge:
  Lord Justice Treacy

Delivering judgment for the Court of Appeal, Lord Justice Seamus Treacy opined: “The scope, breadth and simplicity of the statutory right of exemption is manifest from the express terms of the provision. It is a total unqualified non-discriminatory statutory right vested in the requesting parent with a concomitant obligation on the State to comply in full with the request for exemption — an obligation enforceable as a matter of public law… If indoctrination was the goal this was a strange way to pursue it.”

Background

The first respondent attended primary school in Belfast and, as part of her school curriculum, took part in non-denominational Christian religious education and collective worship.

Her parents described themselves as “broadly humanist” and had made a joint decision not to raise their daughter within a religious tradition. Having noticed that their daughter began to say a prayer that she learned at school before eating, and had started to ask questions about religion, the parents voiced their concerns to the school.

The parents subsequently brought an application for judicial review challenging the Education and Libraries (NI) Order 1986, the Education (NI) Order 2006 and the Education (Core Syllabus for Religious Education) Order (NI) 2007 which provided for mandatory religious education and collective worship in controlled primary schools in Northern Ireland.

The parents challenged the legislation the basis that it contravened their rights to freedom of religion under Article 9 of the European Convention on Human Rights (ECHR) and under Article 2 of Protocol 1 ECHR (A2P1) which prohibits the denial of a person’s right to education and requires states providing public education to respect the rights of parents to ensure same conforms with their own religious and philosophical convictions.

The High Court found for the applicants, deciding that religious education and collective worship were not being conveyed in an objective, critical and pluralist manner in line with the “objectivity test” endorsed by the European Court of Human Rights in Folgerø v. Norway (2008) 46 EHRR 47 and so the legislation breached the applicants’ ECHR rights. The High Court granted a declaration to that effect.

The Department of Education appealed.

The Court of Appeal

Lord Justice Treacy considered the correct test to be applied when examining the curriculum. The appellant suggested that there was no basis to apply the “objectivity test” and argued that the Strasbourg jurisprudence had drawn a line at indoctrination, which the curriculum did not amount to.

Having regard to the jurisprudence concerning the ECHR, the court considered that states have a “wide margin of appreciation” in respect of the implementation of educational curriculums as issues of “social policy”. Tracing the “genesis” of A2P1, the court considered Kjeldsen, Busk Madsen & Pedersen v Denmark (1976) 1 EHRR 71 which set out: “The second sentence of Article 2 implies on the other hand that the State… must take care that information or knowledge included in the curriculum is conveyed in an objective, critical and pluralistic manner. The State is forbidden to pursue an aim of indoctrination that might be considered as not respecting parents’ religious and philosophical convictions. That is the limit that must not be exceeded.”

Proceeding to consider Folgerø, which judgment endorsed Kjeldsen, Lord Justice Treacy found that the trial judge’s finding that the State “must accord equal respect to different religious convictions and to non-religious beliefs” was wrong in principle and that indoctrination was the limit.

Nonetheless, the Court of Appeal considered that the trial judge’s conclusions on objectivity and pluralism had “fed into” his analysis as to whether there had been a breach of A2P1, and that he had gone further by considering the effect of the non-statutory guidance and the possibility of withdrawal, the “proper approach”.

Confirming that the trial judge’s findings were capable of constituting evidence that the “forbidden line” had been crossed, and concluding that his finding that the curriculum was not objective, critical and pluralistic should not be disturbed, the Court of Appeal considered the appellant’s arguments concerning the exemption from religious education and collective worship in Article 21(5) of the 2006 Order which provides parents with an “unfettered absolute right” to have their child excused from any aspects of the curriculum, a right which the respondents did not exercise.

The court opined: “What saves the appellant from the conclusion that A2P1 has been breached in this case is the provision of the non-discriminatory exemption that could accommodate the wishes of the parents which remedy the parents did not exhaust. We have not been persuaded that the subjective fears of the parents are objectively made out. A process which had begun, but not completed, was an exercise by the school to accommodate. In fact, what happened was that the parents never exercised their right of exemption. Had they done so the school would have been obliged to comply with their request.”

Commenting that “an overview of the European caselaw shows that only qualified exemptions have been found to be in breach of the Convention”, the court surmised that exemptions which are practical and effective so as to safeguard parental rights under the second sentence of A2P1 will not result in violations.

The court emphasised: “The scope, breadth and simplicity of the statutory right of exemption is manifest from the express terms of the provision. It is a total unqualified non-discriminatory statutory right vested in the requesting parent with a concomitant obligation on the State to comply in full with the request for exemption — an obligation enforceable as a matter of public law. All that is required is a request for whole or partial exemption from attendance at religious education or collective worship or both which then triggers the mandatory obligation (‘shall’) requiring the child to be excused from such ‘attendance in accordance with the request.’ If indoctrination was the goal this was a strange way to pursue it.”

Conclusion

Accordingly, the Court of Appeal upheld the trial judge’s finding that the curriculum at issue was not conveyed in an objective, critical and pluralistic manner, but determined that no breach of A2P1 had been established due to the unqualified right of withdrawal afforded to the respondents.

In the matter of an application by JR87 for judicial review [2024] NICA 34