Thread by @tribunaltweets

Good morning and welcome to DAY 2 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

Further details and information about this action can be found on our substack:

#OpenJustice

tribunaltweets.substack.com/p/judicial-rev…

We expect to start at 10.30am

Abbreviations

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

C: the claimants: four mothers and one father

Respondent -

WG: Welsh Government /Senedd the respondent

RB: denotes barrister for WG (‘respondent’s barrister’). We have requested this barrister’s name and will update our substack when known

WM: Welsh Ministers

We expect to begin today with continued submissions by RB.

Beginning. RB: I looked at older cases re parental control over a child. By the time we get to gillick themes from equity have dissolved into common law. Contraception for girls under 16. Point a which parental power cedes to the child.

Lord Fraser gave first judgment. See page 740, 744. 3 issues. 1. Capacity 2. Whether infringes parents rights 3. criminal liability (this one not relevant for us). Lord F says his view that parental rights to control a child exist for benefit of the child not for the parents

We see him refer to custody which flows from their right of control... he speaks about society moving on and that its contrary to ordinary experience that child remains under complete control of parents until 18. In practice parents relax control over time

Go on to 751, Agar Ellis? cases. They were seen as extreme in their own day. Lord F saw this case as about control over the child not the way C talks about parent rights. Go to Lord Scarman?, Page 760.

Common law has never treated such rights as sovereign. Parental rights and the childs rights to make his/her own decision - that's what's at issue in Gillick. Not the way C looks at it.

Page 762 Lord S saying we are talking about medical decisions not the wider bundle there. At the bottom Lord S refers to Blackstone. He says the conclusion to draw is the principle that the parental right exists until the child can look after himself and make the right decisions

So Gillick is not the sort of case that the claimant (C) says. Just to complete on Gillick, Lord S on page 765, condemns Agar Ellis which cannot live with modern statute law.

Lord T had something relevant to say at 778. The court will uphold right of parent to decide on behalf of infant where not competent to decide. So again on behalf of the child. Now PD took you to case re Christian Institute

There each child would be linked at a public body with a named person and there would be sharing of information. Challenged as outwith Scots Parl ability. Art 8 challenge upheld but only in relation to how information sharing would work in practice.

But there was also a challenge on proportionality. Can see in para 68. Art 8 considerations:
1. interests .2 interference 3. in line with law 4. proportionate

Family life encompasses a broad range of rights and responsibilities. Art 8 protects rights of a piece with that discussion on Gillick. PD relied upon the end of para 72. But lets be clear what that means. Its talking about convention on rights of child

And specifically makes it clear its state's role to assist parents in carrying out their responsibility (but protect from abuse). its not saying state's duty to support parents to do whatever they want to do - its talking about parents responsibility to the child

Now para 75, there is talk about the privacy of the child. Art 16 - concept of private life - covers disclosure of personal data etc. Para 87 - crucial - what's the interference here. First the named person system, court ruled this would not normally interfere with Art 8 rights

but the data sharing bit would. So named person idea ok. Then we get to para 86-88. Having concluded not lawful we get to proportionality where court held that challenge cant be made good.

Summing up on Christian Institute: 1. nothing on common law 2. Art 8 consistent with gillick.

So on the case law its all about acting on behalf of the child. None of the case law concerns parental rights on behalf of 3rd parties. And none of them come close to constitutional rights that C has to have to be made good.

RB discussing a bit more case law now around parental powers.

Parental power of a father over his children (mother didn't get p rights until 1972 Act). Every aspect of child's life. Its about control again over the child. See page 835 where Baroness Hale looked at Gillick.

and yet again we see 'on behalf of a child' wording. So common law develops by cautious steps. C are asking us to take a massive leap forward with a right that could be asserted irrespective over the wishes of the child as against 3rd parties and as against the state. PD did not

provide rationale for this. If its a constitutional right it affects parliament. The court should be very cautious before entering into this sort of territory

Lets turn to another case , sort of court fees case. About access to justice. It was heard by J Laws. In his judgment he explains sensitivity about constitutional rights.

The essence is constitutional rights affect power of parliament and the Senedd. Marginal claims should not be recognised. It would be wrong to recognise such a right where comprehensive statutory regulations too.

Now look at another judgment, Lord Nichols re overriding common law rights. Para 30 - grave reservations about appropriateness of common law in this context.

2 points 1. where statutory regulation then court should be very slow to overwrite with c law rights. 2. where now one has the convention it would be wrong to create c law rights if convention already provides similar rights

Moving to Lord Stain - page 315. He dealt with this where given right to life under Art 2 of the convention there didn't need to be a parallel right established (case relating to inquests)

RB gives another couple of case refs re this topic on common law.

So, clear why we say court should not develop common law even if they could discern a good reason to do so which as we say PD has not put forward.

That now is the end of the first point on the first issue. The second point on the first issue: if there is a constitutional right has it been abrogated. We say yes it has. I agree we have to look at the legislations as an exercise.

However if it doesn't abrogate it did so in error rather than design. The Senedd grappled with this.

J has asked question around extent of debate. RB: I will not submit that a different approach applies in Senedd and not parliament. There was no sleight of hand here at all. It was correctly categorised as a minor amendment.

2002 Act swept away all provisions for education. Let me take you to one authority. The HoL decision re income tax. Here the issue was whether or not the commissioners had power to release documents under privilege.

Lord Hoffman said privilege is human right in common law. Discussion around principle as to whether statute can override common law. It cant be correct that right could be abrogated implicitly. Its not clear to me what detail PD was saying is required:either its abrogated or not

Decision of court of appeal - page 1546 - the enactment in a schedule is just as enacted as one in main body. PD was relying on Stoke on Trent case. I think because it was an example of the approach this court should adopt to interpret legislation. But th

at wasn't a case re abrogation so we say not relevant. Moving on to page 76 where a parent elects to send a child to a maintained school. If child doesn't attend regularly the parent is guilty of an offence. Supreme Court held regularly means as per School rules.

No failure if child is on leave or day of religious observance. So child should be in school unless the school granted permission. that's the starting point.

we also see RSE is mandatory and is to be taught to each pupil. An Act to establish a new framework is written here so as I say wiping slate clean and starting again.

RB refers to other areas where RSE is mandatory in this Act. Head teacher must comply with and adopt the curriculum. PD complained information was not available but here we see statutory duty to provide a summary.

Further curriculum must be developmentally appropriate for pupils / children. So these are all duties on the school. Go on to duties of implementation on page 17. Must secure teaching and learning for each pupil.

Must be suitable for the child's development (age up to 14) Section 30 makes provision for older children (14 to 16) but essentially saying the same. Goes to the level of each pupil not classes or year groups.

Further Act also allows for exceptions to be made. Chapter 4. WM can give directions to disapply where eg testing new curriculum. But also exceptions for individual pupils during a specified period or to allow for modifications.

So Senedd has particularly considered exceptions for individual pupils. But they were to be time limited eg 6 months - not indefinite.

So this is inconsistent with an indefinite right of excusal. Now we move on and see the Act repeals a statutory right to excusal. Gives bundle ref for the 2002 Act that used to apply prior to the 2021 Act.

So here is the old provision for basic curriculum that includes sex education. The right of excusal could apply to this. 2021 Act means all of that is repealed. The Act creates a brand new framework and in consequence it repeals 2002 provisions.

Go to page 67. Deals with amendments. Omit part 7. that's the bit that repeals
J: You said RSE for Year 8 and above doesn't apply at all and wont apply as they go up. So are they still getting SE via previous Act
RB: Yes
J: so the right of excusal still applies to them

RB: yes - sorry rolling approach. I should have made that clear around the new curriculum coming in
RB: Moving on (gives further reference on repeal). So Act provides new curriculum (including SE requirement)

Idea this is sleight of hand is simply not true.

So we see RSE is mandatory for all pupils, with some defined individual exceptions, explicit removal of excusal, parents cannot pick and choose

V clear that even if rights claimed here exist, the 2021 Act abrogates them.

So we say, no parental right to exclude.

Two questions in relation to Article 2. First is, what test do we apply to the guidance.

I understood Mr Diamond rejected the Supreme Court decision -

J: I believe he said ultra vires?

RB: My point is court does not need to decide this - that there must be a test. Let me start with the guidance

Guidance leaves options for individual head teachers - this is exactly the kind of thing Supreme Court was concerned with. For example para 361.

Mr Diamond said SC was concerned with statutory discretion - not the case.

Was concerned with guidance about how police should operate common law powers re dealing with sex offenders. SC said: dealing with guidance, policies issued by statutory bodies. Can promote objectives etc.

Policies are not laws - cannot overrule, discretion of people applying them still exists.

That is what SC said.

Looking at test to be applied - says, does it mandate/cause unlawful conduct by others, if so would be unlawful.

Points out no duty to issue guidance, that is choice of the issuing body. Again, test described: comparison of what law requires vs what policy says, objectivly construed

So to pause - the Guidance is clearly the kind of thing the SC was concerned with.

Supreme Court also discussed challenges to legislation. In context of BB, Christian Institute case. Immigration case. Talks of whether a policy is capable of being operated lawfully. That is the test of lawfulness.

Then SC noted that all this meant that yes there would be cases that impinged on Article 2 rights. Talks of "legally significant number of cases" but that's not defined.

If claimants are going to claim the Guidance amounts to law because of mandatory element [did not get this bit - a particular case applies]

If claim is that the Guidance causes illegality in other people - then no, [X case] does not apply as different circumstances.

As always with the Convention & Strasbourg court, context is very important. Cases I'm going to take you to form a coherent framework, that state has wide latitude when it comes to state education; the only limit is indoctrination.

Advocating for people to change their views on core values such as sex. Note that this differs from the court's rulings on religious education.

In religious cases - it's about state keeping neutrality in choices between different religions. Teaching *about* relogion can tip into teaching *of* religion. This is why EC stricter about religious teaching.

Case here in Denmark; parents objecting to introduction of sex education in primary school curriculum.

We see here: court notes that it's not mandatory to send children to a state school. Could go private or home-ed.

Danish govt concerned by rise in sschool age pregnancies, set up committee to investigate. Cttee looked particularly at Sweden and concluded age-sensitive needed, and need for wide information across schools - not coralled into "sensitive" separate lessons

Govt issued Executive Order - should cover relationships not just biology of sex, and should be covered in multiple "subject" lessons.

All about helping the pupils.

To be in all primary schools, and with no right of parental opt-out.

Principle of having it cross-subject was to make sure that it was not treated as some special separate thing - sex is not purely a physical interaction - touches on all sorts of things, puberty, family life, pornography, minority sexualities.

Not just about the physical act. It's about the social and ethical surrounds too. Just like this case.

There was a later Order with some minor changes but the main one we have just looked at is what the Court was considering.

Court said: the Danish law set out framework, then Sec of Education was to set details. Again just like Welsh situation now.

Article 2 - first right is the *child's* right to education. The rights of parents under it are an adjunct to the child's right.

Court cites this - goes on to say other linked Articles.

Court then says - the Articles leave considerable margin for states to develop different models and it would not be practicable to rule otherwise.

And that curriculum, teaching, must be presented in an objective way and avoid indoctrination. Talks of the ideals and values of democratic societies.

Court discusses pluralism as one of those values. Notes that Danish law had drawn on experts - just like Wales. Notes that children have other possible sources of information of varying quality, and that it's important to have correct information made available to them.

Court notes that aim is give children the information they need to take care of themselves and others.

And that the Danish law does not amount to indoctrination, or advocate any particular sexual practice.

And that this means it does not go against any particular parents' religious or philosophical views. And it notes again that private / home education would be an option for anyone that disagreed.

This case was 50 years ago.

The next case to look at is 2000, 25 years later.

Again re sex education. Classes on human sexuality, included a booklet, again not just about the biology of sex. We again have a parent objecting and a child refusing to sit the exam.

Court basically reiterated what it had said in the case discussed in detail above.

Booklet had included info about STIs and so on. Court said, not indoctrination; and that parents had chosen to send child to state school, and that their rights to own beliefs did not mean they could override what was taught there.

J: Did the Q about private education come up here too?

RB: I am not sure - I do know there are plenty of private schools in Spain - not sure if this report of the case does include that.

The point is also made that school is not the only source of information that the child has, when it comes to sex and relationships.

Next case - again sex education, at least partly. Christian parents, strictly biblical, objecting to sex ed but also to mythical creatures etc. And in this case, home education was not allowed - had to be at a school state or private, and parents objected to all.

Here court found that lack of option to home-ed *did* breach Article 2 rights, but, that making formal school mandatory did fall within the state's margin of latitude given importance of formal schooling re integration in society etc.

So these are the same themes across different cases - states have latitude, there is no requirement for a right of exclusion. Common thread - state evaluation of public interest.

Next case - this is in Germany, an ethics course. Again mandatory for all pupils. Aim for children to develop autonomy of thought, and to study a variety of religions and philosophies. Expressly said should all be taught neutrally.

Some parents complained - claimed this denied existence of god and that religious groups had not been consulted.

Court found: development of tolerance, wide range of cultural knowledge, fell within the requirement for neutrality in Art2. That course aimed to teach all values neutrally and to generate respect for others and for democratic values, and that the state has right to do this.

Court found this did not exceed a state's margin of appreciation under Article 2.

Final case in this part of my submissions now. Draws it all together.

Germany again, sex education this time. Applicants were evangelical baptist church members. Children were at state primary schools. Sex ed classes mandatory is 1st complaint by parents.

Also complained of a theatre workshop aimed at preventing childhood sexual abuse; and about a carnival.

Parents asked for children to be excused from sex education bcs had been sheltered at home, and were not ready for the classes; further that classes sexualised chidren unsuitably. School refused to do so.

In this case we look at the Westphalia state law not federal law. Talks of sex ed must be age appropriate, aimed at helping children develop their own sexuality, neutral re eg sexual orientation, no right of opt out.

Court again went to Art2. This is 2011. Much reference to some of the cases I have already discussed, including the issue of home-ed.

Court notes that sex education is necessary, for children to learn actual facts about everything they are exposed to in society, and are coherent with the principles of plurality and objectivity.

Pluralism is not about silos of different beliefs, it's about everyone rubbing along together.

Court again notes state margin of appreciation and that the classes did not prevent parents teaching their own views to their own children.

Court says, even tho formal schooling mandatory, parents can teach own views at weekends, evenings.

J: You have made much mention of margin of appreciation, Mr Diamond has said I can -

RB: See Elan-Cane case. Court found margin of appreciation is inherent in the scope of Article rights.

RB: Says national courts should not go to margin of appreciation that Strasbourg would not, and vice versa.

So summing up. It's clear that states can have teaching on moral and ethical issues, can make them mandatory. But must avoid indoctrination. States can include issues of tolerance and plurality in sex ed; can define the subject widely, beyond biology.

And it is clear that "indoctrination" does *not* include teaching about a variety of acts, values.

We've seen Court saying that wide-ranging teaching is not just not contrary to Art2, it's actively required by Art2

So let's consider "legally significant number of cases". Does the Welsh guidance create such a number?

Important to read law, code and guidance together as a whole.

Mr Diamond has argued that this amounts to objectionable material being rammed down childrens' throats all day every day. But an awful lot of the guidance is entirely unobjectionable. Eg re bullying.

Mr Diamond also seemed to say absolutely everything wuold be taught to all children from age 3. But not so. Entirely clear - age appropraite, a "building block" approach though school career.

Curriculum developed to *meet* Art2, it's intrinsic. If we look at [bundle] - "legislation summary". Includes on RSE - "pluralistic requirement". Means where Qs of values arise, schools must provide range of views.

One of main purposes of RSE is to equip children to deal with what they will encounter in life. In life there will be people that identify with a different danger. With the TQ+ elements of the acronym. We have heard evidence that many people do.

Claimants don't dispute that.

Important to recognise this. Teaching children that these people exist and to be tolerant to them is not some weird psychosexual theory. It's about treating people fairly when they meet them. This is not controversial, this is core of Art2.

This is a good point for me to break for lunch?

J: We will do that. Resume at 2pm.

[END OF SESSION]

@threadreaderapp please unroll