BAILII is celebrating 24 years of free online access to the law! Would you
consider making a contribution?
No donation is too small. If every visitor before 31 December gives just £5, it
will have a significant impact on BAILII's ability to continue providing free
access to the law.
Thank you very much for your support!
[New search]
[Contents list]
[Printable RTF version]
[Help]
FOURTH
SECTION
CASE OF ALI v. THE UNITED KINGDOM
(Application
no. 40385/06)
JUDGMENT
STRASBOURG
11 January
2011
This
judgment will become final in the circumstances set out in Article 44
§ 2 of the Convention. It may be subject to editorial
revision.
In the case of Ali v. the United
Kingdom,
The
European Court of Human Rights (Fourth Section), sitting as a Chamber
composed of:
Ljiljana Mijović,
President,
Nicolas Bratza,
David Thór
Björgvinsson,
Ján Šikuta,
Päivi
Hirvelä,
Ledi Bianku,
Mihai Poalelungi,
judges,
and Fatoş Aracı,
Deputy Section
Registrar,
Having
deliberated in private on 7 December 2010,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 40385/06) against the United
Kingdom of Great Britain and Northern Ireland lodged with the Court
under Article 34 of the Convention for the Protection of Human Rights
and Fundamental Freedoms (“the Convention”) by a British
national, Mr Abdul Hakim Ali (“the applicant”), on 12
September 2006.
- The
applicant was represented by Ms J. Thomas of the Children's Legal
Centre, a lawyer practising in Colchester. The United Kingdom
Government (“the Government”) were represented by their
Agent, Ms J. Gladstone of the Foreign and Commonwealth Office.
- On
25 November 2008 the Acting President of the Fourth Section decided
to communicate the complaint concerning Article 2 of Protocol No. 1
to the Government. It was also decided to examine the merits of the
application at the same time as its admissibility (Article 29 §
3).
- The
Government requested an oral hearing. However, the Chamber decided
not to hold a hearing in the case.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1987 and lives in Milton Keynes.
- The
applicant attended The Lord Grey, a maintained secondary (foundation)
school (“the school”) (see paragraph 23 below). On 8
March 2001 a fire was discovered in a waste paper basket in a
classroom. The fire brigade took the view that the fire had been
started deliberately and the police were informed. The applicant and
two other pupils were identified as being in the vicinity of the
classroom at the time the fire was started. The Deputy Head advised
the three boys that they should not return to the school until the
police investigation was completed. Contrary to the statutory
procedure for school exclusions set out in sections 64 – 68 of
the School Standards and Framework Act 1998 (“the 1998 Act”)
and the Department for Education and Skills Circular 10/99 (“the
DfES circular”), no time limit was placed on the applicant's
exclusion (see paragraphs 22 – 24 below).
- On
21 March 2001 the Head Teacher wrote to the applicant's parents to
tell them that he remained excluded from school until 5 April 2001.
She offered to provide extra work for the applicant and stated that
if his parents so wished, they could write to the Chairman of
Governors to discuss the matter with them. This letter did not comply
with the 1998 Act and the DfES circular as it failed to advise the
applicant's parents that they had a right of appeal to the Governors
of the School. Moreover, the Governors also failed in their duty to
hold a hearing to confirm the exclusion or re-instate the applicant
as required under the 1998 Act.
- On
25 April 2001 the Deputy Head Teacher wrote to the applicant's
parents to exclude him further until 15 May 2001. The letter was
drafted in similar terms to that of 21 March 2001, and for the same
reasons it failed to comply with the statutory requirements in the
1998 Act and the DfES circular.
- During
the period of exclusion, the school had been sending the applicant
revision-based, self-assessing work in mathematics, English and
science. This continued until 14 May 2001, the date of the
applicant's final Standard Assessment Tests (“SATs”). He
was permitted to attend school from 8 to 14 May 2001 in order to sit
these examinations.
- On
8 May 2001 the Personnel and Resourcing Committee of the Governing
Body of the school met and were informed that the three pupils
suspected of involvement in the fire had been excluded. Contrary to
the requirements of the 1998 Act, the Governing Body did not convene
a Governor's Disciplinary Committee or consider either the exclusion
of the applicant or whether he should be reinstated.
- The
applicant was charged with the offence of arson against the school
and he entered a not-guilty plea. On 25 May 2001 the Deputy Head
Teacher wrote again to the applicant's parents. She indicated that as
some of the witnesses in the case were students at the school, the
applicant and the other two boys could not be permitted to return
until the proceedings were concluded. She further indicated that she
was making a referral to the access panel for alternative provision
for the applicant's education. Finally, she advised the applicant's
parents that he was being excluded for a further twenty days from 14
May 2001 and that the school would continue to set work as
appropriate. The applicant's parents were asked to contact the school
to arrange to collect the work. They did not contact the school and
no work was set after 14 May 2001.
- On
25 May 2001 a form referring the applicant to the Local Education
Authority (“LEA”) for the provision of alternative
education was finalised, although it was not received by the LEA
until 8 June 2001.
- Under
the 1998 Act there was a standard 45-day maximum period for fixed
term exclusions. That 45-day period expired on 6 June 2001.
- On
18 June 2001 the Crown Prosecution Service notified the applicant's
solicitors that the prosecution had been discontinued on the ground
that there was insufficient evidence for there to be a realistic
prospect of conviction. The following day the applicant attended
court and the proceedings were formally ended. He then went to the
school to meet with the Head Teacher, who advised him that she would
act to arrange his re-entry as soon as she received written
confirmation of the cessation of criminal proceedings. She received a
fax to this effect from the court on 22 June 2001 and official
notification from the police on 3 July 2001. On 3 July 2001 she
wrote to the applicant's parents, inviting them to attend a meeting
on 13 July 2001 to facilitate his re-integration. The invitation was
extended again on 4 July 2001.
- The
LEA's access panel met on 19 June 2001, unaware that proceedings
against the applicant had been discontinued. The panel recommended
that the applicant should be provided with tuition by the Pupil
Referral Unit (“PRU”) until a decision was taken on his
future at the school. The PRU offers part-time education to children
who are out of school, generally because they have been excluded, but
it is not required to provide the full national curriculum. On 27
June 2001 the LEA's Flexible Learning Co-ordinator wrote to the
applicant's parents to inform them that the PRU would provide tuition
until term ended on 20 July 2001 while the school resolved the
exclusion issue. The school alleged, and the domestic courts
subsequently accepted, that the Flexible Learning Co-ordinator had
again contacted the applicant's parents in early July 2001 and they
had declined the offer of tuition. The applicant's parents, however,
deny that any offer was made at the beginning of July.
- The
applicant's parents did not attend the meeting with the Head Teacher
on 13 July 2001. The reason for non-attendance was heavily contested
but the judge at first instance concluded that they had chosen to
stay away. One of the other two boys did attend and was admitted back
to the school. However, as a consequence of their non-attendance, the
Head Teacher wrote to the applicant's parents to advise them that she
was removing the applicant from the school roll. The school governors
and the LEA were also copied in. The applicant's name remained on the
roll until the middle of October 2001 although he was not provided
with any education by the school during this period.
- In
September 2001 the applicant was due to begin the first term of the
first year of his GCSE studies. He did not return to the school. At
the end of September 2001, the LEA's welfare service completed a
notification of absence. On 5 October 2001 the LEA wrote to the Head
Teacher, stating that the applicant was in Bangladesh and that a
place at the school was not required for him. The judge at first
instance accepted that this was wrong: the applicant had not been in
Bangladesh and had been at home all along. Neither the school nor the
LEA contacted the applicant again before removing his name from the
roll, and the applicant and his parents were not subsequently
informed of the removal.
- In
mid-October 2001 the applicant's family met with the Flexible
Learning Co-ordinator. At this stage they were unsure about whether
they wished the applicant to return to the school. They were advised
to decide quickly, and to arrange interviews either at the school or
at other schools so that he could resume his education on a full-time
basis. From about the third week in October, the applicant's parents
made it clear that he wished to return to the school. On 6 November
2001 the applicant's father wrote to the Head Teacher formally to
request his re-instatement. On 14 November 2001 the Deputy Head
Teacher replied, advising that the applicant's name had been removed
from the roll, that his place had been allocated to a student on the
waiting list and that the school was now oversubscribed in his year
group. The applicant's father was advised to contact the LEA to find
another school place. On 20 January 2002 the applicant was admitted
to a new school, the Leon School.
- The
applicant issued a free-standing human rights claim against the
school in the County Court, claiming, inter alia, that his
right to education had been violated contrary to Article 2 of
Protocol No. 1 to the Convention. The LEA was not a party to the
proceedings. The case was transferred to the High Court. In rejecting
the application, the judge held that the school was not the cause of
the respondent's lack of suitable education between 13 July and the
end of the summer term on 20 July because his family had declined the
LEA's offer of tuition. The cause of the respondent's lack of
schooling or education during the autumn of 2001 was more complex to
ascertain but it was the LEA's responsibility to provide suitable
education and there were educational facilities available to him.
Thus although the decisions to exclude the respondent and to remove
him from the roll were unlawful in domestic law, and could have been
challenged by judicial review, they did not give rise to a liability
in damages for breach of his rights under Article 2.
- On
appeal, the Court of Appeal found that the provision of
self-assessing work during the first 45 days of exclusion amounted to
sufficient access to education to answer the applicant's Convention
claim. However, the Court of Appeal held that the respondent's right
to education was denied between 7 June and 13 July, notwithstanding
that the school was still offering to provide him with substitute
work to do at home, a matter held to be relevant only to damages. In
relation to the last phase of the respondent's exclusion, from 14
July 2001 – 20 January 2002, the Court of Appeal regarded
removal of the respondent's name from the school roll as improper,
although giving rise to no separate legal consequences. But the
respondent's exclusion during this period was, as the judge held,
unlawful and unreasonable. In
para 64 of the judgment the Court of Appeal concluded:
“So characterised, the exclusion of [the
respondent] from 14 July until he was finally placed in a new school
amounts, in my judgment, to a further denial of his Convention right
to education. It was complete and it was prolonged. It was not
terminated by the deletion of [the respondent's] name from the school
roll because there was no lawful ground for deletion. To the extent
that it may nevertheless have been acquiesced in, the damage may be
mitigated. But this is not our present concern, and it will require
(if the case goes that far) a factual inquiry into a number of things
including the family's state of knowledge and understanding.”
21. In
paragraph 68, the Court of Appeal rejected the school's further and
fundamental argument that:
“... the bare existence of the education
authority's fallback duty, together with [the respondent's] right to
seek to enforce it, relieves the school either of its obligations or
of the legal consequences of failing to discharge them. On the
contrary, it is on the two public authorities who are the present
respondents (or put more realistically, the school) that the state
has chosen to devolve the material elements of the obligation which
it has undertaken to provide universal secondary education. It is the
head teacher and the governing body who in law bear the primary duty
to educate a child who has been accepted in their school and, as a
corollary, not to exclude him except as authorised by law.”
- The
school was granted leave to appeal to the House of Lords. In the
course of the proceedings, the applicant did not contest the lower
courts' rejection of his complaint that the period of exclusion
between 9 March 2001 and 6 June 2001 had violated his rights under
Article 2 of Protocol No. 1. In relation to the period of exclusion
after 6 June 2001, the House of Lords unanimously held, albeit for
different reasons, that there had been no violation of Article 2 of
Protocol No. 1. The majority accepted that the applicant's exclusion
from school was at times unlawful, but held that there would be a
denial of the Convention right only if there were a systemic failure
of the education system which resulted in the applicant's not having
access to a minimum level of education. As regards the scope of
Article 2 of Protocol No. 1, Lord Hoffman stated that:
“This does not however guarantee access to any
particular educational institution the domestic system does provide:
see Simpson v United Kingdom (1989) 64 DR 188. Nor is there a
right to remain in any particular institution. Everyone is no doubt
entitled to be educated to a minimum standard (R (Holub) v
Secretary of State for the Home Department [2001] 1 WLR 1359, 1367) but the right under article 2 extends no further.”
- The
House of Lords found that in this case there was no systemic failure
of the education system: the applicant's parents failed to collect
work from the school; the offer of tuition from the PRU was declined;
the applicant's parents failed to attend the meeting at the school on
13 July 2001; and finally, during the autumn the LEA's attempts to
secure the applicant's re-admission to school were thwarted by his
parents' uncertainty. Baroness Hale of Richmond, however, was
concerned that the applicant had been let down badly by the school,
although she also allowed the appeal because, in view of the judge's
findings, it would not have been just to require the school to pay
damages when the applicant's parents had refused various offers of
tuition. Nevertheless she indicated that this was the paradigm of a
case in which it would be just and appropriate to grant the applicant
a declaration that the school had acted in a way that was
incompatible with his rights under Article 2 of Protocol No.1.
II. RELEVANT DOMESTIC LAW AND PRACTICE
- Section
10 of the Education Act 1996 (“the 1996 Act”) places on
the Secretary of State for the Home Department the general duty of
promoting education for the people of England and Wales. This
obligation has been largely discharged by LEAs. Pursuant to sections
13 – 18 of the 1996 Act, the LEA has a general responsibility
for education and is required to secure that efficient primary and
secondary education are available to meet the needs of the population
of their area. Section 19(1) of the 1996 Act further provides that
each LEA shall make arrangements for the provision of suitable
education at school for those children of compulsory school age who,
by reason of exclusion, may not otherwise receive suitable education.
Moreover, the DfES circular further provides that the LEA should
ensure that temporarily excluded pupils are reintegrated where
possible and educated meanwhile.
- Foundation
schools were established under section 20 of the School Standards and
Framework Act 1998 (“the 1998 Act”). They have wider
self-governing functions than other maintained schools. Pursuant to
section 15 of the 1998 Act, LEAs can only intervene in the management
of a Foundation school if there has been a serious breakdown in the
way the school is managed or governed, or the safety of the pupils or
staff is threatened. General responsibility for the conduct of the
school lies with the governing body (section 38 of the 1998 Act),
while the Head Teacher is responsible for the internal organisation,
management and control of the school (section 61 of the 1998 Act and
Regulation 5(1) of the Education (School Government) (Terms of
Reference) (England) Regulations 2000).
- The
legislative provisions concerning school exclusions are contained in
sections 64 – 68 of the 1998 Act and the DfES circular.
Pursuant to these sections, a Head Teacher of a maintained school may
exclude a pupil for a fixed period or permanently, but the pupil may
not be excluded for one or more fixed periods which amount to more
than 45 days in one school year. Exclusions should be for the
shortest time necessary, and should not be used for, inter alia,
punishing pupils for the behaviour of parents. Where a pupil is
excluded, the Head Teacher must take reasonable steps to inform
relevant persons (in this case, the parents) of the period of
exclusion, the reasons for the exclusion, and that he or she may make
representations to the governing body. If a pupil is excluded for
more than 5 days in any one term, the Head Teacher must inform the
LEA and the governing body. The governing body must then consider the
circumstances in which the pupil was excluded, any representations
made by a relevant person, and, where practical, whether the pupil
should be reinstated. The LEA must make arrangements for enabling the
relevant person to appeal against any decision of the governing body
not to reinstate a pupil who has been permanently excluded.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 2 OF PROTOCOL NO. 1 TO THE
CONVENTION
- The
applicant complained that his exclusion from school violated his
right to education, as provided in Article 2 of Protocol No. 1 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
Government contested that argument.
A. Admissibility
- The
Government submitted that the applicant had failed to exhaust
domestic remedies. Had he taken up the offer of alternative education
at the PRU and considered it to be insufficient to meet his
entitlement under Article 2 of Protocol No. 1 to the Convention, he
could have brought judicial review proceedings against the Local
Education Authority relying on Article 2 of Protocol No. 1 together
with the Human Rights Act 1998. Similarly, if the LEA had failed in
its obligation to provide section 19 education at all, judicial
review proceedings could have been brought. In fact, no such
proceedings were brought and at no time did the applicant seek to
join the LEA to the domestic court proceedings.
- The
Government therefore argued that the application should be declared
inadmissible.
- The
applicant, on the other hand, submitted that the judgment of the
House of Lords showed that he had exhausted the remedies open to him
in domestic law. Had he taken up the offer of education at the PRU
and brought judicial review proceedings, the relevant question for
the court would have been whether the education provided at the PRU
was “suitable”. The applicant's case throughout had been
that it was not suitable because it did not cover the whole national
curriculum, and this was the exact point litigated before the High
Court, the Court of Appeal and the House of Lords.
- The
Court reiterates that the purpose of Article 35 is to afford the
Contracting States the opportunity of preventing or putting right the
violations alleged against them before those allegations are
submitted to it (see, inter alia, Civet v. France [GC],
no. 29340/95, § 41, ECHR 1999-VI). Whereas Article 35 § 1
of the Convention must be applied with some degree of flexibility and
without excessive formalism, it does not require merely that
applications should be made to the appropriate domestic courts and
that use should be made of effective remedies designed to challenge
decisions already given. It normally requires also that the
complaints intended to be brought subsequently before the Court
should have been made to those same courts, at least in substance and
in compliance with the formal requirements and time-limits laid down
in domestic law (see, among other authorities, Cardot v. France,
19 March 1991, § 34, Series A no. 200, and Elçi and
Others v. Turkey, nos. 23145/93 and 25091/94, §§ 604
and 605,
13 November 2003).
- The
Court observes that in the proceedings before the House of Lords, the
applicant did not contest the lower courts' rejection of his
complaint that the period of exclusion between 9 March 2001 and 6
June 2001 violated his rights under Article 2 of Protocol No. 1.
Consequently, in relation to this period of exclusion, the Court
finds that the applicant has not exhausted domestic remedies for the
purposes of Article 35 § 1 of the Convention.
- The
applicant's complaints concerning the period of exclusion which began
on 6 June 2001 and ended on 20 January 2002 were raised in the
proceedings before the House of Lords. The Government, however, have
submitted that the applicant should have taken up the offer of
education at the PRU and then applied for permission to judicially
review, on human rights grounds, the adequacy of the alternative
education provided. Instead, the applicant brought a free-standing
human rights claim against the school, in the course of which he
submitted that the alternative education was inadequate. In
substance, therefore, this issue was fully litigated before the
domestic courts, which held that the alternative education was
adequate and that there had been no violation of the applicant's
Convention rights.
- The
Court therefore rejects the Government's submission and finds that in
relation to the complaints concerning the period of exclusion between
6 June 2001 and 20 January 2002, the applicant has exhausted domestic
remedies for the purposes of Article 35 § 1 of the Convention.
Merits
The parties' submissions
(a) The applicant
- The
applicant submitted that the House of Lords had interpreted Article 2
of Protocol No.1 too narrowly in holding that there would only be a
violation where there was a “systemic failure of the education
system”. Instead, he contended that a failure by a public
authority to deliver to an individual the education which it was his
right to receive under the domestic law was also capable of violating
Article 2 of Protocol No. 1. This would be the case whether there was
a total failure to deliver education, as happened to the applicant
between 8 May 2001 and 20 January 2002, or a partial failure where
only a wholly inadequate education was available, as was the case for
the applicant between 8 March 2001 and 8 May 2001.
- The
applicant submitted that the Court's jurisprudence indicated that the
right to education consisted of three separate rights: a right of
access to existing educational establishments; a right to an
“effective” education; and a right of official
recognition of studies successfully completed (Case “relating
to certain aspects of the laws on the use of languages in education
in Belgium”, judgment of 23 July 1968, Series A no. 6). In
the Belgian Linguistics Case the Court observed that the aim
of Article 2 of Protocol No. 1 was to guarantee to individuals the
right to avail themselves of the means of instruction provided by the
State at a given time. Consequently, the content of the right to
education secured by Article 2 of Protocol No. 1 was not fixed by the
Article itself; instead, it was prescribed by the provisions of the
domestic law of education in each of the Contracting States, subject
to the qualification that the domestic law in question must not
itself injure the substance of the Convention right.
- The
applicant submitted that in the United Kingdom, the national
curriculum formed the “means of instruction” which
was the substance of how the right to education was delivered in
England at the relevant time (Belgian Linguistics case, cited
above, p. 18, § 3). In the United Kingdom, schools had a duty
under sections 351(4) and 352 of the Education Act 1996 to provide
education in accordance with the national curriculum to those whose
names were on their rolls, while parents had a duty to ensure that
their children of compulsory school age attended the schools at which
they were registered. A school at which a child was registered could
only refuse the child entry in very limited circumstances, which
included where the child had been excluded on disciplinary grounds
under section 64 of the 1998 Act. Under section 64 of the 1998 Act it
was the Head Teacher who alone had the power to exclude pupils and
they could only do so either for a fixed period not exceeding
forty-five days in any one school year or permanently. Under section
19(1) of the 1996 Act LEAs had a duty to make arrangements for the
provision of suitable education at school or otherwise for children
of compulsory school age who had been excluded from school. According
to section 19(6) of the 1996 Act, “suitable education”
meant education suitable to the child's age, ability and aptitude.
- The
applicant submitted that the exclusions by the school were, from 6
June 2001 at the very latest, totally unlawful acts. The judge at
first instance found that this was the case and this finding was not
overturned by any of the appeal courts. The applicant accepted that
not every unlawful exclusion would be in breach of Article 2 of
Protocol No. 1. In particular, he accepted that where a child was
unlawfully excluded from school, but was immediately provided with
education of the same or a higher standard, there would be no
violation of Article 2 of Protocol No. 1. Nevertheless, he submitted
that in the present case, to the extent that he was prevented from
gaining access to the school at which he was enrolled and which he
was entitled under domestic law to attend, he was denied an education
in violation of Article 2 of Protocol No. 1 to the Convention.
- The
applicant further submitted that if the right to education was to
have any real meaning, then it could not be right that any offer of
alternative education could be regarded as “healing” the
breach. Before being capable of “healing” a breach of
Article 2 of Protocol No. 1, any alternative educational provision on
offer would have to be education of the same type, neither inferior
nor part-time, and the pupil should not suffer any disadvantage as a
result of having to rely on it.
-
Although the applicant disputed that an offer of education at the PRU
was made at the beginning of July 2001, he submitted that even if
such an offer were made, the alternative education on offer was not
capable of healing the breach of Article 2 of Protocol No.1. First,
by the date of the alleged offer of alternative education in July
2001, the police had concluded their enquiries, dropped the charges
and the fixed-term exclusion period had expired. Consequently, the
applicant was entitled to be re-integrated into school and had a
right to expect that this would occur. Secondly, by the date of the
alleged offer, the applicant had been told by the Head Teacher that
he would be re-instated. He was therefore under no obligation to
accept alternative, inferior education. Thirdly, the offer of
education from the PRU was only an offer of part-time education, for
a period of anywhere between five and fifteen hours a week, and it
would only offer a limited range of subjects (maths, English and some
science). Fourthly, the alleged offer of education from the PRU was
for three weeks only; no further offer of education was made.
Moreover, the school did not offer the applicant any form of
education after 8 May 2001, even though he remained on the school
roll until the middle of October 2001.
- Finally,
the applicant submitted that the alternative education offered to him
was not “suitable” within the meaning of section 7 of the
1996 Act as it did not cover the entire national curriculum at the
date of the breach or, from September 2001 onwards, the full range of
GCSE subjects that he had chosen.
- The
applicant accepted that the breach of his rights under Article 2 of
Protocol No. 1 came to an end when he started at the Leon School on
20 January 2002.
(b) The Government
- The
Government accepted that Article 2 of Protocol No. 1 was applicable
to the facts of the case as the applicant was, at the relevant time,
a child of compulsory school age and thus prima facie had a
right to an education.
- The
Government submitted that the starting point for considering whether
there had been a violation of Article 2 of Protocol No. 1 was not
whether there had been a breach of domestic law: there was no support
for such an approach either in the Court's case-law or as a matter of
first principle. Instead, the protection of the Convention, being
practical and not theoretical, should be concerned with what
education was in fact available to the child and not with whether or
not the exclusion followed a particular procedure prescribed by the
domestic law of the Contracting State. In particular, the key
question to be asked was whether the authorities had acted so as to
deny a pupil effective access to such educational facilities as the
State provided for such pupils.
- The
Government further submitted that while the relevance of domestic law
had never been directly answered by the Court, the existing case-law
was not supportive of the applicant's case. On the contrary, it was
well-established that the Convention laid down no specific
obligations concerning the extent of the means and the manner of
their organisation (Belgian Linguistics Case, cited above, p.
18, § 3). The Government therefore argued that the applicant
could not establish a violation of Article 2 of Protocol No. 1 by
reference to the breaches of domestic law concerning his exclusion
from school.
- Moreover,
the Government argued that the applicant's assertion that they were
obliged to provide him with an education while he was excluded from
the school which was the same as that which he would have received
had he not been excluded was inconsistent with principle and with the
Court's case-law. This was because the right to education did not
require Contracting States to establish education of any particular
type or at any particular level. Given that the content of the
curriculum was not a matter prescribed by the Convention, and that
the Convention laid down no specific obligations concerning the means
of instruction (or the number of hours of education to be provided),
and given that the Convention did not prevent children from being
excluded in relation to disciplinary matters, it was impossible to
conclude that a child who had been excluded was entitled, by reason
of the Convention right, to the same education that he would have
received had he not been excluded.
- While
the Government accepted that for the right to education to be
meaningful, the quality of education would have to reach a minimum
standard, they argued that it did not follow that any such minimum
standard was to be set by reference to the level of education
provided at the school attended by the applicant immediately prior to
exclusion, or by reference to the particular content of the national
curriculum at any given time, or by the number of hours that the
State happened to define as “full-time” education. On the
contrary, the right under Article 2 of Protocol No. 1 was no more
extensive than an obligation to provide an education suitable to a
child's age, ability and aptitude. The question of whether there had
been a violation depended on what education was available to the
applicant overall, and not on what education was provided by any
particular institution.
- For
the reasons given by the House of Lords, the Government submitted
that the “very essence” of the applicant's right to
education had not been impaired. In particular, they submitted that
there was no period of time in which the Local Education Authority
would not have provided suitable education for the applicant, and he
could not blame the LEA for not repeating offers of education which
he had previously refused.
- The
Government submitted that the applicant's arguments were made even
weaker by the fact that he never availed himself of the education
which was offered during the period of exclusion. Still less did he
ever complain at the time, whether in legal proceedings or otherwise,
that such an education would have been inadequate to satisfy his
right to an education under Article 2 of Protocol No. 1.
The Court's assessment
(a) General principles
- Article
2 of Protocol No. 1 guarantees, inter alia, a right of access
to educational institutions existing at a given time (see Belgian
Linguistics Case, cited above, p. 28, § 4 and Kjeldsen,
Busk Madsen and Pedersen v. Denmark, judgment of 7 December 1976,
Series A no. 23, pp. 25-26, § 52). Nevertheless, such access
constitutes only a part of the right to education. For the
"right to education" to be effective, it is further
necessary that, inter alia, the individual who is the
beneficiary should have the possibility of drawing profit from the
education received, that is to say, the right to obtain, in
conformity with the rules in force in each State, and in one form or
another, official recognition of the studies which he has completed
(Belgian Linguistics Case, cited above, p. 28, § 4).
- The
Court recognises that in spite of its importance the right to
education is not absolute, but may be subject to limitations.
Provided that there is no injury to the substance of the right, these
limitations are permitted by implication since the right of access
“by its very nature calls for regulation by the State”
(Belgian Linguistics Case, cited above, p. 28, § 5 and
Campbell and Cosans v. the United Kingdom, 25 February 1982, §
41, Series A no. 48).
53.
Admittedly, the regulation of educational institutions may vary in
time and in place, inter alia, according to the needs and
resources of the community and the distinctive features of different
levels of education. Consequently, the Contracting States enjoy a
certain margin of appreciation in this sphere, although the final
decision as to the observance of the Convention's requirements rests
with the Court. In order to ensure that the restrictions that are
imposed do not curtail the right in question to such an extent as to
impair its very essence and deprive it of its effectiveness, the
Court must satisfy itself that they are foreseeable for those
concerned and pursue a legitimate aim. However, unlike the position
with respect to Articles 8 to 11 of the Convention, it is not bound
by an exhaustive list of “legitimate aims” under Article
2 of Protocol No. 1 (see, mutatis mutandis, Podkolzina v.
Latvia, no. 46726/99, § 36, ECHR 2002-II). Furthermore, a
limitation will only be compatible with Article 2 of Protocol No. 1
if there is a reasonable relationship of proportionality between the
means employed and the aim sought to be achieved (Leyla Şahin
v. Turkey [GC], no. 44774/98, § 154, ECHR 2005 XI).
- Article
2 of Protocol No. 1 does not necessarily entail a right of access to
a particular educational institution (Simpson v the United
Kingdom, Application No. 14688/89,
24 February 1998). Moreover,
the right to education does not in principle exclude recourse to
disciplinary measures such as suspension or expulsion from an
educational institution in order to ensure compliance with its
internal rules. The imposition of disciplinary penalties is an
integral part of the process whereby a school seeks to achieve the
object for which it was established, including the development and
moulding of the character and mental powers of its pupils (see, among
other authorities, Campbell
and Cosans v. the United Kingdom,
cited above, p. 14, § 33; see also, with respect to the
expulsion of a cadet from a military academy, Yanasik,
cited above, and the expulsion of a student for fraud, Sulak
v. Turkey, no.
24515/94, Commission decision of 17 January 1996, DR 84-A, p.
98).
(b) Application in the present case
- In
the United Kingdom, all maintained schools have a duty to provide
education in accordance with the national curriculum to every child
of compulsory school age on their register. Article 2 of Protocol No.
1 therefore requires that the United Kingdom guarantee to every child
of compulsory school age within its jurisdiction, like the applicant
in the present case, access to an educational institution or facility
which will provide an education in accordance with the national
curriculum.
56. Although
the applicant was not technically excluded for disciplinary reasons
or to ensure compliance with the school's internal rules, the Court
finds that the exclusion was in pursuit of a legitimate aim. The
Court can readily accept that over and above the need to ensure
observance with a school's internal rules, a measure resulting in the
suspension of a pupil for a temporary period for reasons relating to
an imperative not immediately connected with such rules – such
as a criminal investigation into an incident at the school –
can be considered justified.
- In
the present case the Court also finds that the applicant's exclusion
from school was foreseeable. The Head Teacher's power to exclude
pupils is contained in sections 64 – 68 of the 1998 Act. The
applicant's initial exclusion was therefore both lawful and
foreseeable, even though there were some procedural irregularities.
Although the applicant's exclusion subsequently exceeded the maximum
period prescribed by the legislation, the Court finds that the
continued exclusion was also foreseeable. At the time of the initial
exclusion, the applicant was told that he could not return to the
school until the police investigation was completed. The reason for
this was clear. Other pupils, and indeed members of staff, were
potential witnesses and it would have been inappropriate for the
applicant to return to the school while the police investigation was
ongoing. Consequently, he could have had no realistic expectation of
returning to school on 6 June 2001.
58. In
determining whether or not an exclusion resulted in a denial of the
right to education, the Court will have to consider whether a fair
balance was struck between the exclusion and the justification given
for that measure. It will therefore have regard to factors such as
the procedural safeguards in place to challenge the exclusion and to
avoid arbitrariness; the duration of the exclusion; the extent of the
co-operation shown by the pupil or his parents with respect to
attempts to re-integrate him; the efforts of the school authorities
to minimise the effects of exclusion and, in particular, the adequacy
of alternative education provided by the school during the period of
exclusion; and the extent to which the rights of any third parties
were engaged.
59. In
the present case, the Court finds that the applicant's exclusion did
not amount to a denial of the right to education and was not
disproportionate to the legitimate aim pursued. In particular, the
Court observes that the applicant was only excluded until the
termination of the criminal investigation. Once the Head Teacher
received written confirmation of the cessation of the criminal
proceedings, she invited the applicant's parents to a meeting to
facilitate his re-integration. Had the applicant's parents attended
that meeting, it is likely that he would have been re-integrated. In
this regard, the Court recalls that one of the applicant's co-accused
was re-integrated into the school after attending this meeting.
However, not only did the applicant and his parents not attend the
meeting, but they made no further effort to contact the school until
mid-October. By this stage, the applicant's name had been removed
from the roll and his place at the school had been allocated to
another pupil. It is therefore clear that the exclusion was for the
minimum period necessary, and the fact that the applicant was not
reintegrated into the school following the cessation of the criminal
investigation was his fault or that of his parents and not that of
the school.
60. Moreover,
the Court recalls that the applicant was offered
alternative education during the period of exclusion, although he did
not choose to avail himself of this offer. While the alternative
education did not cover the full national curriculum, the Court
accepts that it was adequate in view of the fact that the period of
exclusion was at all times considered temporary pending the outcome
of the criminal investigation. Article 2 of Protocol No. 1 does not
require schools in the United Kingdom to offer alternative education
covering the full national curriculum to all pupils who have been
temporarily excluded from school. However, the situation might well
be different if a pupil of compulsory school age were to be
permanently excluded from one school and were not able to
subsequently secure full-time education in line with the national
curriculum at another school.
- Finally,
while the Court is prepared to accept that the applicant had made a
considerable investment in the school, both socially and
academically, over the course of a number of years, it cannot ignore
the fact that it was the applicant and his family's own intransigence
which resulted in his name being removed from the roll. The Court has
already noted that had the applicant's parents attended the meeting
with the Head Teacher on 13 July 2001, it is likely that he would
have been authorised to return to the school following the summer
holidays.
-
The Court therefore finds that the applicant's exclusion was a
proportionate measure and did not interfere with the substance of the
right to education.
- It
is true that at times mistakes were made and procedures were not
properly followed. In particular, the school failed to set a
time-limit for the initial period of exclusion; the school failed to
notify the applicant and his parents of their right of appeal to the
Governors; the Governors failed to hold a hearing; and the period of
exclusion was extended beyond the 45-day maximum. However,
due consideration must be given to the extremely difficult position
in which the school found itself on account of the continuing police
investigation. After the expiry of the 45-day period, the legislation
required it either to re-integrate the applicant or exclude him
permanently. In practice, it could do neither. The applicant could
not be re-integrated while the criminal investigation was ongoing,
but it would have been equally inappropriate for the school to have
excluded him permanently when it had not been established that he had
committed any offence.
-
Accordingly, the Court finds that there has been no violation of
Article 2 of Protocol No. 1 to the Convention.
II. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION
- The
applicant also complained that, as the majority
of the House of Lords found, he had been unlawfully excluded from
school in circumstances which wholly denied the protection afforded
to him by domestic law. He had therefore been denied an adequate
remedy for a breach of his rights under Article 2 of Protocol No.1.
Consequently, he complained that there had been a violation of
Article 13 of the Convention, which provides as follows:
“Everyone whose rights and freedoms as set forth
in [the] Convention are violated shall have an effective remedy
before a national authority notwithstanding that the violation has
been committed by persons acting in an official capacity.”
- The Court has examined this complaint but finds, in
the light of all the material in its possession and in so far as the
matters complained of are within its competence, that it does not
disclose any appearance of a violation of the rights and freedoms set
out in the Convention or its Protocols.
- It follows that this part of the application is
manifestly ill-founded and must be rejected in accordance with
Article 35 §§ 3 and 4 of the Convention.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Declares the complaint under Article 2 of
Protocol No. 1 in respect of the period beginning on 6 June 2001 and
ending on 20 January 2001 admissible and the remainder of the
application inadmissible;
- Holds that there has been no violation of
Article 2 of Protocol No. 1 to the Convention in respect of the above
period.
Done in English, and notified in writing on 11 January 2011, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Fatoş Aracı Ljiljana
Mijović
Deputy Registrar President
