Thread by @tribunaltweets

Today we hope to be reporting on a permissions application for a judicial review in Birmingham. A teacher raised safeguarding concerns about social transition of a primary school child to her school, the governing body, local authority and diocese.
tribunaltweets.substack.com/p/primary-teac…

Proceedings scheduled to start at 10:30. A permissions hearing is a process hearing. These can be difficult to live tweet, so the format of reporting may be different. At this point, none of the parties have been publicly named.
#openjustice

We will be applying to the judge at the beginning of proceedings for permission to live tweet. This is customary and the judge will probably impose some restrictions on our reporting, usually names of the parties and other details.

Abbreviations:
The claimant - C

Richard O’Dair, barrister for C - RO

School - S

Counsel for School - CS (until identified)

Counsel for County Council - CCC (until identified)

Counsel for respondents - Aileen McColgan KC - AM
Correction of spelling.

Court personnel are currently testing the remote access set up and we are waiting for proceedings to begin.

Judge has arrived. Dealing with other matters.
Introducing parties. Only identified as claimant & defendant.
Dealing with press, request to live tweet and anonymity orders.

Application for remote access and live tweeting being considered. Judge is ordering anonymity of all parties and parties are agreed to presence of press and will allow live tweeting.

Judge is directing all parties be anonymised. No objections from identified press parties and Tribunal Tweets. Child is referred to only as Child X. Written copy of the order to follow.
Case is to be known as AB vs County Council and a School. Subject to contempt.

Judge has risen to have the anonymity order prepared, published on the relevant website and distributed to parties before proceeding. We expect to be back in 15 to 20 minutes.

Draft order has been show to counsel.
Still waiting for distribution here.

Judge has returned and is distributing hard copies of the anonymity order. In short: no publication of the name, address or identity of child, school, respondent or defendant, school, or county council. Will link to published document from our Substack.

The judge is the Hon Mrs Justice Farbey, DBE = J.
She is sitting alone.
RO - making substantive applications. Looking to add materials to bundle submitted. An NHS document.
J - how relevant to the matter?
RO - document confirms that the position of the claimant are

mainstream
J - do you have permission to submit expert witness evidence?
RO - not expert witness evidence, in the normal sense but is what everybody had before them at the time.
J - take me to the passage in your grounds where this is.

RO - look at pg 24, you'll see a para followed by 7.1 setting out the way in which the documents work.
J - what I'm asking about is the relevance of this document to your grounds.
RO - relevant to grounds 1 & 2, remain for this purpose on p7 because that para outlines

outlines the safeguarding concerns that C had. Those concerns depend on the weight of the evidence that she had at the time. We place considerable weight on those documents.
J - I should give weight to this?
RO - it shows that the documents were and are expressing

completely mainstream views.
J - any views:?
EM - don't agree these are relevant but don't propose to take the courts time
J - will need to demonstrate why these are relevant to the request for JR.
RO - substantive submission: standing, sec 175 ed act, sec 47 children act

additional reference to ed act and matter of time.
RO - standing: as is clear from p 7 of DfE; safeguarding is an all staff responsibility.
J - do I have a copy?
RO - in the bundle, 1163, para 7
'all staff have a responsibility to provide a safe environment in which children

can learn.
RO - an example whilst hypothetical is powerful, if a teacher was alerted to suspicious behaviour of another teacher, it is the obligation of the teacher to report,
We know that what C did was to raise the matter with the school

Other way of looking at matter is to recall that there is whistle blowing legislation contained within the employment rights act which encourages employees who have concerns to raise those concerns with initially the employer. And those provisions are often referred to as

public interest disclosure provisions. In the public interest for employees to to make such reporting.
J - inquiring about how and whether the court should consider this legislation
RO - no, it is the body of law in its widest sense. For purposes of standing: that body of law

is relevant to the court's determination if C is vexatious or frivolous.
J - don't understand how an employee's right to report impacts their right to standing in judicial review. n
RO - employees who have safeguarding concerns constitute a subcategory of persons who

have standing.
Those are my arguments on standing. Now addressing a point by my learned friend (MLC) - in any event that concern is undermined (underlined?) by the order on privacy. Child X's right to privacy is not undermined by the proceedings.

That depends on whether C was acting in the best interest of Child X.
Some concerns expressed by D that C was acting in breach of the data protection act (DPA) and should be denied standing. I refer to you p 23 on - there are exceptions to health data provisions of the DPA

that apply in this case. Data processing undertaken on public interest grounds is exempt (public disclosure grounds). School code of conduct encourages staff to put child protection concerns above data protection issues.
Moving on Sec 175 of Ed Act.

RO (conts) There is a dispute between the parties, as to whether the school had any relevant policy in this case. C says that there was a policy of transgender affirming. School says 'responds on facts and circumstances'. The key point here is

when C raised her concerns firstly with the school and 2ndly with the local authority in each case, the recipient was faced with a body of clearly credible medical evidence that indicated that most pre-pubescent gender incongruent children recover their equanimity through the

process of puberty.

And that social transition can be harmful. To put forward such propositions, supported by medical evidence, that raised a question of how a public body in that situation should react. What we say they should have done was set out in para 36 of my skeleton argument.

This is the nub of this application. Defendant's case is that they did not have to do anything. And provided that we are not unreasonable, there are other experts. We don't need to do anything. I submit that is clearly wrong. I put forward an example that shows why this is so.

(do not have skeleton arguments available to us)
Faced with credible expert evidence of a risk - authority must address the matter. It is irrational not to act on that evidence, if you choose not to investigate any further.
Both the school and the local authority had this

evidence that raised very serious issues. About safeguarding and those issues had to be addressed. The rational choices facing the defendants were to just rely on the information they were given or they could have investigated further. What they couldn't do was do what they did

leaving the safeguarding risk raised by a reputable expert unaddressed.
RO conts - I disagree with the learned justice Henshaw that transition at this stage of life is not a weighty matter. If that was true, then the actions of the defendants would have been rational.

The evidence submitted by C is that social transition has significant costs and risks.
J - what part of Henshaw is relevant? I don't see anything that suggests the matter is not weighty.
RO [ checking his authority] Last two lines of decision.

'Before making the very limited decision of social transition of Child X'.
J - your previous representation not accurate
RO - apologises. The action of social transition is not a trivial or unimportant matter, given the expert evidence.

RO - para 55, of submission, quoting from AG speech on 10 August, 'any decision should only be taken after all safeguarding concerns respected including the impact on other children'. That is precisely the position that C was putting forward to the school and the local authority.

Focused on the quality of the response to c's correspondence with defendants. The response from local authority to C submission of evidence and risk to children. It says 'a matter for the school and these concerns have been addressed by the school although not to your

satisfaction'. That is not an adequate response given it's separate duty of care to the children. There is no lawful response to the information that is presented. The letter does not address what C is saying. I draw to a close on sec 175 submission.

Looking at section 47. Claimant's argument addresses not the overall approach of the school but the approach to child X. If there is reasonable cause to suspect significant harm, they must take action. The local authority had the expert evidence.

They had chosen not to traverse it or find contrary evidence. It was drawn to their attention that child x had very significant mental health problems or might have such problems. Child X had reported drug abuse by father, domestic abuse in the home.

Claimant learnt that Child X was already contemplating and discussing taking puberty blockers. Given the medical evidence and what was known about Child X the local authority should have been making enquiries about the safeguarding of child welfare.

Nothing was done. No enquiry, no expert reports on file.
Coming onto section (?) about political indoctrination. There is debate in case law about what makes for a political matter.
J - where is the evidence that either defendant was acting in a political manner?

RO - external agencies may market educational materials to schools and those materials must be assessed for impartiality. Teaching staff went to a seminar and were provided with 'resources' that you will have seen in the bundle. There has been no assessment

of impartiality of those sources.l
J - how do we know they didn't assess for impartiality
RO - how can I prove a negative
J - you claim no assessment, it is right for the court to ask for your basis.
RO - I have been through the material very carefully

and I cannot find it.
RO - the materials that teachers were supplied with are only 'affirmative' of transition. Example from authorities bundle: some problem finding the document.
J - not aware that an authorities bundle has been served.
AM - I'm not aware of one.

RO - I believe it had been submitted.
J - can you send to my clerk via email over lunch.
RO - Yes, then reads out reference for the J.
[J now looking up specific reference]
J - I know I've read something that you've submitted by him.
RO - will submit over lunch.

RO - it's a simple point. Sometimes a parent may put pressure on a child to transition and the danger of transition by stealth. In the training session there was nothing to alert the staff to the risks of transition. For example, improper pressure from parent.

The documentation goes all one way to affirmation. We say that is inappropriate because transgender issues are highly political as you can see in my skeleton argument. Whether it's teaching the children OR teaching the teachers the material must be balanced.

J - the courts should be very slow to intervene in political matters.
RO - it is the job of the court that the school does not enter into political matters.
J - it is not the role of this court to take those policy decisions, it is the role of the local authority and the school

to make policies.
RO - a difference between policy and politics. Education is applied in a very nuanced way, precisely because there have been many times in history when it has been used to indoctrinate not education. Looking at section 407 text

RO conts - the heading of that section makes my point for me - there is a duty on head teachers, schools and local authorities to secure a balanced treatment on political issues.
Matters are political in the circumstances I set out in para 65, if a body seeks to achieve

fundamental social change through lobbying and through education it is a political manner.
That point is illustrated by Stonewall; on the one hand it is a lobbying group with it's own manifesto for GE 2019. On the other hand it is educational.

It provides education materials to schools on LGBT matters. We say that should be viewed with considerable caution. My learned friends points is as follows: the local authority, governing body and head teacher should take such steps to ensure that any such matters are balanced.

No such material was provided to the children. The teachers attended the seminar, the approach of the seminar was strongly transgender affirming and was intended to be applied in the classroom. Seminar leader expected teachers to deploy the materials.

RO - it is a broad interpretation, but it is important that for the section to bite, if a campaigning organisation like Stonewall comes into the school and educated the educators, section 47 must apply. It is a symptom of the failings on section 47,

there was no discussion of the dangers of transition when that training was given.
Coming on to time point.
Justice Henshaw has said the case is out of time, overriding duty to be prompt.
RO - judicial review is a last resort, what happened in this case that C

raised complaint through whistleblowing, complaint dismissed, sought an appeal, then went to local authority. A classic example of a claimant hoping to sort the matter out through non-judicial channels. Had she issued proceeding anyway she would have been

criticised for not exhausting all remedies. C in this case was trying not to take up the court's time. If she'd issued proceedings and the local authority had set matters right.
J - had local authorities view on 24 Feb, claim not lodged until 2 months later.

RO - can I take instruction?
J - no evidence on why there was further delay after 24 February 2022?
[RO speaking with solicitor]
RO - could I ask to find out more during the lunch break?
J - I will give you to 1:45 to take instruction and share with AM for respondents.

J - adjourning until 2 pm. I will consider the reason for delay and further matters.
[Judge dealing with another matter suggesting that proceedings might conclude by 3 pm].
Ending for the morning.