Thread by @tribunaltweets

Good Afternoon. Welcome to DAY 1 of the Judicial Review (JR), brought by Public Child Protection Wales (PCPW) v Welsh Government (WG)

The review is of WG's new mandatory curriculum of Relationships & Sexuality Education (RSE) for primary schools in Wales

We resume at 2 PM

This mornings live tweet thread is here, on our substack:
tribunaltweets.substack.com/p/judicial-rev…

Abbrevs
J: Judge, The Honourable. Mrs Justice Steyn

Petitioner -
PCPW: Public Child Protection Wales, the petitioner. (four mothers and one father)
PD: Paul Diamond Barrister for PCPW

Respondent -
WG: Welsh Government /Senedd the respondent
ES: Emma Sutton, barrister for WG

Other:
RSE: Relationships and Sexuality Education
RSE Guid: Relationships and Sexuality Education in schools Guidance, issued February 2019
CSE: Comprehensive Sexuality Education
SRE panel: Welsh Government Sex and. Relationships Education (SRE) Expert Panel

WM: Welsh Ministers
ACT 2021: Curriculum and Assessment (Wales) Act 2021. RSE is mandatory (section 71)
UNESCO: United Nations Educational, Scientific and Cultural Organization
ITGSE: UNESCO International Technical Guidance on Sexuality Education (ITGSE) 2009 and 2018

PRUs: Pupil referral units
JR: Judicial Review
Def: Definition
SO: Sexual Orientation
SSS: Single Sex Spaces:
GD: Gender Dysphoria
GI: Gender Identity

RE: Religious Education
EHRC: Equality Human Rights Committee
EA: Equality Act 2010
PC: Protected Characteristic
GDPR: General Data Protection Regulation

PSED: Public Sector Equality Duty
UNHRC: United Nations Human Rights Council
Edu Act: The Education Act 1996, section 9
AG: Attorney General

[Court resumes]

[all rise. reminder not to record]
[They sit]

PD: guidance emphasises mandatory nature. we go to G3. 6 lines down [reads] understanding sexuality regards rights, proactive take resp. for behaviours. Themes for children as young as 3

PD: G5. RSE code sets out mandatory learning and appropriate phases. controversial phrase - mandatorily appropriate. no mechanism for knowing body parts.

J: where
PD: the 2nd one. It's cross cutting all elements. then G8 in this context RSE is important support for learners [reads G8] "relationships, sexual relationships, sexuality, skills.. navigate changes... learners supported...challenge stereotypes... seek support"

PD: again it's wide ranging. [reads]. no mention of where help and support is formed. children undergo gender transformation w/o parents knowledge

PD: G9 [reads] navigate complex relationships. again it's transformative. reading Mr Lloyds statement, it is transformative. many parents feel (missed)

PD: "this supports them to understand their values and beliefs... respect, support" It's v. engaging. 'holistic', 'inclusive', 'LGBTQ'. Concludes homophobic, transphobic, biphobic... promote equality of gender, sex and sexuality. extreme document

PD: G10 deals with sexual romatic relationships, navigate make sense of sex, gender, sexuality shape their own. Parents feel this is sexual relations from teh age of 3 upwards and excluded from school env.t

PD: again it says 'positive'. it's not neutral.
P142 - Whole school approach. no basis for this in any statue. the most comp change in school env. wholly focused on LGBTQ+. [reads] 'Teachers shd be supported in whole school approach'. Ref. Mr Lloyd stat, this i changing culture

PD: This would be implemented firmly.
G16 Wholesome approach incl. leadership, senior leadership, policy. Senior L shd ensure ALL learning. Not children, not disabled, not poor children... it's focused on this one line

J: would you expect disabled in context of this guidance?
PD: we are looking at political imperatives, controversial area, socio sexual theory, children encouraged to explore identity of self away from parents

PD: G23 world of sexual identity evolving, inclusive RSE and start learning. It's not just whole school approach but central to shifting cultural values. As Mrs Hale said you get at children, start early. at a young age. Age 3.

PD: [reads] Skills, values, rights... we just say at this point there's a considerable focus on the distinction btw sex and gender. and this distinction has no basis in the curriculum. it is not recognised apart from GRA. controversial sexual theory that C disagree with

PD: no religious, philosophical views of parents considered. it's all one way.
J: asks Q [can't hear]
PD: it's clear course must be balanced, quantitative, transmitted neutrally. by all means do LGBTQ but do other views. we live in multicultural society. ppl are v. alarmed

PD: the language used. empower, explore, advocate. It's not neutral language. It will be implemented whatever it's outcome. The only safeguard is the dev. of [missed]. but there's no criteria. parents don't understand what it means.

PD: so we say this is an ideological set of views, unacceptable sexualisation of children. Children will be discussing extreme sexual values with strangers. Before it was just say no and scream. this is reversing all concepts. sexual intimacy with a stranger. guards are let down

it's dangerous.

PD: G24 broad interdiscliplinary areas [reads] social, spiritual, ... (missed). "unique contribution to learning RSE, understanding cultural, geographical influences on RSE issues'. When a parent... there must be a clear limitation on rights. the understanding

of the contract in education is that parents send children to sit in school to learn subjects in a neutral manner. the infusion of sexual is going to distort all knowledge. in fact this is dangerous. specific stat authority of whole school approach. v. signt. no systems.

PD: G36 some mention of parents being engaged. [reads]...'ongoing relationships ...e tc' again there is no process for this. Mr Lloyd expands on P282 para 70 'parents shd be encouraged to participate'. The problem is not the parent who *wants* to participate but parents who don't

PD: no one can say it better than the claimant. [goes to bundle to read]
J: (missed - can't hear mic)
PD: Page 17A - Parent. she says "Parents ... control... we can object .. be neutrally objective.. challenge values ... (missed)...no information about the content of RSE"

PD: why this sleight of hand? why don't you tell the parents which outside org? Mermaids? The parents have *no* control. Parents don't even know if it is appropriate.

PD: [reads] no detail of the content of RSE. guidance codes. parental rights count for anything. the right to know what is being taught, the right to object, the right to resolve.

PD: [ reads] I believe sexual relationships, sexuality.. (missed). Parents will have children in all forms and backgrounds. they dont' want temporary exclusion, to fight for rights of children. v. sensitive areas.

PD: for completeness sake, just because ... "I informed the school that proposed LGBTQ teaching went against my family tradition, I was treated with disrespect' the shoe is on the other foot. you don't have to be a practicing Muslim, Jew, Christian to know this violates religion

PD: [reads] sexuality is pushed throughout the curriculum, I believe this has spiritual consequences. [reads examples from the Bible]

We have to accept different religions and respect rights, so draw your attention to that

PD: Just addressing...
J: missed [can't hear judge]
PD: ...
J: B'ham city?
PD: It is B'ham. w/o going into detail, it was a comprehensive relgious philosophy class. It's a helpful summary of the general principles. 2 sentences of article 2

PD: safeguarding and pluralism, power of the modern state. sub para a, article 2. 'positive obligation of the state'... 'parents primarily resp. for teaching children respect'
J: [questions page]
PD: [reads] 'democracy does mean the view of majority always prevails'

PD: [reads] 'the state must take care that knowledge in curriculum is objective, neutral in a pluralist manner'.... 'abuses can occur by giving a school or teacher or authority (missed). '

PD: para 85 [reads] apply the above for consideration the Q to be determined is whether education took care to objective, neutral and pluralistic manner and not indoctrination.

PD: para 95 [reads] Thus when seen together, the content of the Edu Act suggests that quantitative and qualitative needed. In religion there is a test. where it is done, it is equal. you have to be neutral. not this is good, this is bad. neutral transmission.

PD: maybe some children want to know there are trans ppl. maybe not a 3. changing nature and culture of society.
PD: finishing off.... para 101, according to the gov parents could seek private schools funded 85% ... state could not (missed) pluralism in state schools

PD: Requirement is to respect parents not to give them an opt out with parental safeguards.
PD: Respondent cannot (missed) that the curriculum conveyed in an objective manner

PD: We say the duty is to respect parents religious and philosophical views. [reads] no person shall be denied a right to an education. in the exercise of any function re teaching, the state shall respect the rights of parents .. with their own religious, philosophical

PD: we say that comes out of Campbell and Cousins. it's not enough to say opt out. there is a positive duty in Campbell and Cousins. Sets a powerful positive obligation. principles. knowing teaching materials, rights, how to safeguard, rights of the state. what do you do when

parent is not at the centre?
PD: And transmission of sensitive areas, sexual. there is no method for securing respect. it could be unbalanced curriculum with opt outs. it could be balanced curriculum. The opt outs are last resorts.

PD: what we say.. platitude does not secure parental rights. it cannot be frittered away. we say guidance is unlawful as it doesn't show respect for religious, philosophical views.

PD: We say it fails to show respect. a lack of comprehensiveness of the range of views represented. nothing in there 'man', 'boy', 'girl'. We say to seriously engage parents. how do you deal with situation where only one parent of 3 year old agrees to curriculum?

PD: Respect must be achieved. A system of RSE mandatory must align with European HR without limitation. We say Duty to respect across the curriculum.

PD: We say duty to positive respect. teaching directly contradicting the convictions of parents fails to set up a process to ensure RSE curriculum shaped by parental wishes. must balance minorities.

PD: We understand parents cannot object to every aspect of the curriculum.. english, language... but there's an obligation to balanced treatment that makes it that much more important. legality has too be assessed by highest std of objectivity, impartiality

PD: Parents must be able to object to content of the curr w/o undue difficulty.
J: can I check. you said 'opt out' may suffice. the curr as it is across LGBTQ+ for example

PD: we would say upmost care and respect. no one size fits all. cannot see how whole school of approach works - reaches level of indoctrination.

PD: opt out could rebutt indoctrination. but clearly here crossed boundary of indoctrination. not role of school. could take Westminster to stop

PD: they shd be providing proper RSE education. no ones denying there are things children must learn. vast majority of parents...(missed). Opt out could be a mechanism.

PD: positive duty to respect parent views with out carelessness and disregarding. The policy and guidance has no safeguarding. Closely related to articles 8, 9 and 10. They require limitations to sufficient legal authority. They do not prov sufficient info to parents.

PD:this may require parents to seek opt out. [reads case from Turkey?] the question whether an opt out is required cannot be answered in a blanket fashion. Positive measures by the state to respect parents. We are saying this fails at every level, every obligation, not

not an objective curriculum. and if they are going to maintain it, has to be an opt out.

PD: i want to take the lady to loutsy (?) [reads] para 60.

PD: the court discusses general principles, 'nevertheless that decision should be read in the light of guaranteeing freedom from religion, neutrality and partiality. maintain public order, religious tolerance in a democratic society. Particularly re religious views. duty of

the state to be impartial. tolerate views.

PD: jump to para 72 [ reads] the courses in the school... a crucifix on the wall is passive. neutrality. cannot be deemed to have influence on pupils religious activity. This is about promotion of ideas in school.

PD: Para 74.. [reads] all views treated equally for historical reasons.

PD: Para 75.. no proselytising views to change society

PD: Case before Mr Justice Fors (?) [reads] 'a fair balance, majority view v minority .. needs quantitative and qualitative balance.

PD: delegated by WG is one breach. no organisations have been accredited by OfCom. No detail of what is being taught to claimants children. Schools may well be influenced by (missed). Delegation of decision making cannot be carte blanch

PD: [reading] the code is mandatory. the guidance is mandatory. There is no balance. we say serious repercussions

PD: article 9 offers interesting analysis. My learned friend says it doesn't offer much. we say a few pointers helpful for interpreting article 2 protocol 1

PD: 'everyone has the right to freedom of thought, conscience and religion. this includes freedom to change religion and freedom either alone or with others to manifest belief'

PD: 'thought, conscience and religion' slightly different to 'freedom and belief'. if someone is seeking to change religion and belief, then the threshold is v. low.

PD: prosletysim by Greek (?) airforce hierarchical relationship. Not just exchange of ideas. Application of undue pressure through use of power. if a hierarchical relationship in a school, where do we stand with teaching and children? we say relevant considerations

PD: Go to Smith and Trafford (S&T) I started off with the meaning of the modern European democracy, overreach of state, principles of liberalism. A man was demoted. go to para 56 and 72. it may sound strange but it was a decision... 'it would be primaface for employer to apply

appropriation to employees private life. obv. protection for private life and religious belief. this applies even when residential area allocated to him"

This is an important judgement. We say the school, like the employer is overreaching

PD: WG need to tell the Welsh people. This is overreach. they don't expect sexuality from age 3, history lessons in indoctrination. We say what is at stake? it is much more than a stat JR. step up to plate. My lady I conclude
J: Thank you

[Respondent barrister rises - don't know name = will use RB]
RB: Right to excusal. 2 main issues for your ladyship to resolve. what rights? if rights what under 2021 Act.

RB: will the RSE code and guidance result in teaching that is going to breach article 2. I'm going to need to spend some time on the case floor re Human Rights and Article 2

RB: a lot of assertions as to what common law says. lets see if those assertions are substantiated. that's the order I propose to take us in

RB: Intro first. considerable interest in this case. Your L is aware there is a hierarchy of measures. 2021 Act > Curriculum requirements > teaching children.

The only challenge is the code to guidance not 2021 Act itself.

RB: No challenge to any particular teaching. No evidence as to what childrn are being taught. that's first point

2nd point. principle challenge. the court is going to have to be careful to understand exactly what the code and guidance says to head teachers

RB: the difficulty with the allegations is that the claimants can't provide evidence to substantiate them

one of the fundamental limbs of the C case is that it breaches art. 2. so court needs to understand exactly what is breached in art. 2

RB: and that has to be foudn in the actual text of the 2 docs.

RB: concerns a/b RSE plagued by mis info. I want to address 2 points

RB: 1 - 'global rollout sexualising children'. that is simply not the case. as Mr Lloyd explains in his WT, there is nothing in the code and guidance to promote anything of the sort. in fact the design of RSE is specific to Wales, homegrown

RB: [reads P. 65 of his skeleton] 'careful consideration of experts, charities resulted in high quality consultation. RSE shd be mandatory and whole school approach. the purpose set out in guid itself. 1) helathy relationships, 2) understand themselves 3) navigate changes in soci

4) protect selves and others and 5) treat others with empathy.

RB: That's not being challenged. 2nd point. Allegation. sexual activity and masturbation from a young age.

RB: that does not form any part of the guide or code. the teaching of Wales. At no time have the C pointed to anything which envisages that.

RB: The Act explicitly says age appropriate. RSE not just ab SE. it's focused on relationships

RB: it encourages kindness, empathy and compassion. It's v. much conscious of stages children go thru

RB: 3rd allegation - 'adopt a lifestyle'. nothing to support. I know PD says 'controversial ideologies' in the code but not lifestyles.

RB: final point. PD called into questions the motives of the WM to frustrate the courts oversight. allegation entirely rejected. Act 2021 lays down legal FW for Curr for Wales.

RB: indeed your L will have seen the WG does retain control as the code has to be approved thru draft affirmative procedure. I hope your ladyship appreciates a lot of noise around this case.

RB: Mr Lloyd suggests 2019 consultation paper only time public consulted. incorrect. subsequent consultation exercise. Your L will have seen extensive debate on the issue,

RB: C argument - 1) right to refusal from RSE, 2) missed, 3) mistate the law. The principles are not in dispute. Common law rights and consitutional rights access to justice. principal of stat construction. Parl has power to legislate. the way it operates is that if they restri

.. I'll take the points in turn

RB: 1) right to refuse. The court should not recognise that right. description characterisation has varied over time but the wayPD put it is that parent has a right to determine the education his/her child receives and control regligious, philosp

RB:... control. As we set out. We shared 4 fundamental features of the right. the right isn't parasitic on rights of children. it is an independent right. it doesn't involve parental right to decision making power on behalf of the child.

RB: 2nd point. goes beyond right to control what child is taught. different and distinct from right to opt out of RSE. the duty is to ensure the child receives suff education.

RB: 3rd point. the way PD deals with it goes beyond and claims to disavow any claim to geography, didn't explain basis or right to RSE. there may be parent objections but it's diffct to see the tentacles reaching to all aspects of the curriculum

RB: 4th point. reverse engineered. designed. reasonableness. how can courts approach that. those 4 rights in PD skeleton has the look and feel of legislation as would be through WG.

RB: also a conceptual issue. only has traction against a system set up by parl. on the statute. only children registered at school have to go to school.... 1944 Education Act.... PD criticised me for using the expression 'occupy the field' but parl created it

RB: there is nothing in any of the authorities which PD uses which supports the existence of the right [to refuse RSE]

RB: most of PD cases date from 19th century, male supremacy. those cases survived parliament. one needs to be v. careful when discuss. common law principles vs. equitable principles. 2 parallel jurisdictions. The common law dealt w physical custody. Equitable was broader jurisdic

RB: passages PD relies on are equitable jurisdiction. so important to see how it evolved. v. far from parental rights.

RB: never about (missed) parents. that's not correct. If I start with Ellis.. mixed marriages... roman catholic & protestant. this is a case ab a farmers powers over his children and wife. Your L sees facts. b4 marriage husband promised children wd b brought up catholic

RB: by that point father indoctrinated protestant. see how they arose. 2 cross applications. 1st father applied to make daughter a ward of court. 2nd Mother applied to prvent them being deprived of Mothers care, not be banned from seeing them and to bring them up Roman Catholic'

RB: the Mother lost and appealed. If your L go to page 588 ..see judgement. 1st dispute btw husb and wife, the mother could not use her influence to thwart husbands wishes... male supremacy. 2nd... btw father and children and father and law, the court acted to protect interests

RB: of the children. 'it is conceded by the law of this country, the education is the right of the father. the law may take it away for sufficient cause under the law.. the court has never yet breached that duty, that right... .not inteferred.'

RB: we can see the wife's case. relied on case 'storton storton'... the court said we won't take into account the children's wishes. 'in our judgement, these are weighty considerations for the father to deal with'. The court is not going to step in. It's about control over the

RB: children.

RB: finally. last point. whether court recognises fathers right as master of his own house. left by forces of his own command in his own domain. speaking ab fathers control over children. nothing about rights. about 3rd parties.

J: in relation to equity and common law, looking at P72 using terminology legal right that would seem to be common law
RB: it's not clear if the court meant rights in the way we use them today. won't pretend to understand early victorian. we see the way the court approached it

RB: was equitable jurisdiction. that's in relation to control over the child. nothing here ab 3rd parties. in later cases the court roled back from Agar / Ellis.

RB: next. Barnardo case. Dr Barnado was a force of nature. case ab physical custody of a child. a mother entrusted her son to live in Barnardo home for 12 years. he was bought up in protestant. 1 year later she wanted to take him out and rise R. catholic. B went to court

RB: [reads judgement] the questioner has to determine right of B vs mother. it's a custody case. whose is the rightful guardianship. but for circumstances of child being illegitimate, strict legal rights for guardianship. Lord J flagged there were 2 jurisdictions and court can

RB: exercise both jurisdictions

RB: ref. to various cases. equity vs. property. right to property (physical) or right to equity (right to be consulted). Twin track starting to emerge.

RB: no longer need to look at Mothers rights. refer to Crown Nash, the desire of the mother of an illegitimate child is to be considered but court must not be (?) to concede to the mother.

RB: in equitable jurisdiction a mothers wishes are a factor but not the only factor. no longer an immutable right that cannot be interfered with.

RB: the next case is Gingle. this flags distinction btw common law and equity. Mother was ladies maid and dressmaker and R. Catholic. The daughter was in and out of home in Weymouth and turned protestant of her own volition. Mother reappeared and said I want her out and R. Cathol

RB: it came b4 the court of appeal. Lord Eshes judgement. 'it seems to me there are 2 distinct heads of law. habeas corpus or right of the child. Court stepped in btw the parent and the child. it's not ab strangers.

RB: This isn't a habeas corpus case it is an equitable case

RB: Now another case. A different Agar / Ellis case. in the case of habeas corpus parents right over the child a chancery judge could not remove child. habeas corpus is about 3rd parties. In equitable case, a parent may not [paraphrase - make best decisions] for the child

RB: the court has to consider the whole circumstances of the case. Generally speaking best place for a child is with parents. Parental views are just one of the factors. Lord Esher concluded child wouldn’t go back to the mother. The common law habeas corpus is subordinate to

the equitable jurisdiction.

RB: in rules about habeas corpus; control of children, the rules of equity must prevail

RB: the reason habeas corpus works in the way it does with children and parents is that children are incapable of giving consent. so parent gives consent for child

RB: that is a conceptual foundation for why habeas corpus foundation is so rigid.

RB: we see common law habeas corpus about custody. the child doesn't have capacity to consent. the parent exercises consent on behalf of the child.

But in the equity conceptual sphere there is no concept of rights at all. None of these cases r ab 3rd parties / strangers.

RB: [another case about 15 yo injured] Lord Denning 'the law of England is that the Father has control until 20 years of age.' Then he says ' I would get rid of that law' 'however we won't proceed further'

RB: [next case] on the various meanings of the word custody - the 1st is to physically control and the wider 2nd meaning is guardianship; nature, nurture, a bundle of rights until male reaches 20 years old or female marries. I reject that the meaning should equate 2 guardianship

RB: what's noticeable. it's not ab rights. it's ab power over the child. control of the child. Lord Justice was not talking in terms of rights. PD does not get what he seeks to get from it

RB: Next .. gillick. I don't know if that's a convenient moment
[judge rises - court rise]

Clerk confirms hearing is finished for today. Court resumes tomorrow at 10AM / 10:30AM. (will confirm tomorrow morning)

@threadreaderapp please unroll