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	High Court of Justice in Northern Ireland Queen's Bench Division Decisions
You are here: BAILII >> Databases >> High Court of Justice in Northern Ireland Queen's Bench Division Decisions >> Anderson (a minor), Re Application for Judicial Review [2001] NIQB 31 (20 August 2001) URL: http://www.bailii.org/nie/cases/NIHC/QB/2001/31.html Cite as: [2001] NIQB 31

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Neutral Citation no. [2001] NIQB 31

Ref:    

WEAB 3121.T

 

 

 

Judgment: approved by the Court for handing down

Delivered:

20.08.01

(subject to editorial corrections)

 

 

      IN THE HIGH COURT OF JUSTICE IN NORTHERN IRELAND QUEEN'S BENCH DIVISION (CROWN SIDE) -------- IN THE MATTER OF APPLICATIONS BY NOEL ANDERSON (A MINOR) BY HIS MOTHER AND NEXT FRIEND KATHLEEN ANDERSON AND SHEA O'DOHERTY (A MINOR) BY HIS MOTHER AND NEXT FRIEND PAULINE O'DOHERTY FOR JUDICIAL REVIEW

 

--------

 

WEATHERUP J

 

These applications are for judicial review of the decisions of the Board of Governors of Lumen Christi College, Londonderry of 4 April 2001, and of the decisions of the Admissions Appeal Tribunal of the Western Education and Library Board, of 25 June 2001 in the case of Shea O'Doherty and 26 June 2001 in the case of Noel Anderson, whereby the applicants were refused places in the first form of the Lumen Christi College commencing in September of 2001. 

In the case of Noel Anderson, he was born on the 6 January 1990 and he lives in Derry.  He attended primary school at Nazareth House Primary School which is close to the Lumen Christi College.  In February 2001 he was advised by the Western Board that he had received an A grade in his 11+ exam.  A transfer application was made on the applicant's behalf that he be admitted to Lumen Christi College as his first preference.  His second preference was a local grammar school called St Columb's College.  On 1 June 2001 he was informed that he had been admitted to his second preference which was St Columb's College.  The family received an explanation for this decision in June 2001 when it was stated that the applicant had not been admitted to his first preference following the schools application of its sub-criteria.  An appeal was lodged against this refusal to admit the applicant to Lumen Christi.  Notification of the Appeals Tribunal's decision to reject the appeal was received by letter from the Western Board dated the 26 June 2001.

            In the case of Shea O'Doherty he was born on the 15 September 1989 and he too lives in Derry.  He also attended the primary school at Nazareth House and on 9 February 2001 was advised by the Western Board that he had received an A grade in the 11+ exam.  He made an application to be admitted to Lumen Christi as his first preference and his second preference was the local grammar school St Columb's College.  In his case a copy of a Speedwell Trust certificate was appended to his transfer application for onward transmission to Lumen Christi.  This certificate certified that the applicant had completed an external programme which had been organised by the primary school.  He was informed by letter dated 1 June 2001 that he had been admitted to his second choice which was St Columb's College.  An explanation was received in June 2001 that the rejection by his first preference school was by reason of the application of the school's sub-criteria.  The family contacted the local Assembly Member, Mr Mark Durkin and he wrote to the Department of Education in June 2001 making representations about the admissions procedure and in particular the criteria which were applied by Lumen Christi.  He received notification by letter dated 25 June 2001 that an appeal against the decision had been rejected. 

            The statutory arrangements that apply in relation to this scheme of school transfers can be found in the Education (Northern Ireland) Order 1997.  Under Article 9 of the 1997 Order every Education Board makes arrangements for the parents of a child to express their preferences as to the school at which they wish the child to be educated.  By Article 10 it is provided that the Boards of Governors shall not admit to any school in any year a number of children which exceeds the school's admission number.  By Article 12 it is provided that the Department of Education sets the admission number for each school, which in the case of Lumen Christi was 120 for the 2001 intake.  By Article 14 of the Order it is provided that, where an application is made, the Board of Governors shall admit the child to the school if the total number of such applications does not exceed the admissions number of the school, and in any other case shall apply the criteria which are drawn up under Article 16(1) to either admit or refuse the child accordingly.  Article 16 provides for the drawing up of the criteria that each Board of Governors shall apply in selecting children for admission to Grammar Schools under Article 14.  Regulations have been introduced, namely the Secondary Schools (Admissions Criteria) Regulations (Northern Ireland) 1997 which by regulation 4 provide for matters which are to be included in the criteria.  In essence it is there provided that admissions are determined by reference to the grades which are awarded to the children, with priority given to the higher grades.  The grades are, in descending order, A, B1, B2, C1, C2 or D. 

The criteria which have been adopted by the school in this case are at the heart of this dispute.  The criteria indicate that applicants will be admitted in grade order.  It is then provided that if there are more applicants with a particular grade than places remaining the available places will be allocated by the application of the following sub-criteria in the order of priority set down below -

"(1)      Applicants of whom a brother/sister, half-brother/sister, step-brother/sister or legally adopted brother/sister is a pupil in this school or will be in the coming year.

 

(2)        Applicants of whom a parent is a permanent member of the College staff or a Governor of the College or will be in the coming year. 

 

(3)        Applicants who in the judgment of the Selecting Committee have demonstrated, in years 5, 6 or 7 (beginning 1 July 1998) extra curricular achievement by gaining an award/certificate in open activities in any of the following: out-door pursuits, sport, IT, science, technology, chess, quiz, art, dance, debating, drama, essay or poetry writing, music, photography, singing, speech or other activities similar in the judgment of the Selecting Committee:

Activities organised by an individual school or group of schools or a club are not open in the meaning of this criterion. 

 

Parents should note it is their responsibility to provide verifiable clear evidence of the achievement.

 

(4)        Applicants who have gained an award/certificate in any of the activities in sub-criterion 3 above internal to the school/club. 

 

For sub-criterion 4 details must be provided with supporting verifiable evidence by parents or with verification by the Primary Principal. 

 

(5)        Other applicants.

 

If over subscribed on any of the above sub-criteria, places will be allocated in order of age starting with 'underage' applicants and then in rank order of age starting with the eldest and, if necessary, in alphabetical order". 

 

The arrangements in relation to the Lumen Christi allocation of places are set out very helpfully in the minutes of the discussions of 4 April 2001 which are exhibited to the respondent's affidavit.  They indicate that there were 120 admissions in relation to the school and the number of A grade applicants was 186 so the school is obviously very popular.  The Selection Committee therefore set about applying the sub-criteria.  It applied sub-criterion (1) and 40 pupils qualified which left 146 A grades to be considered.  The Committee then proceeded to consider sub-criterion (2) and 2 pupils qualified so the total then admitted was 42 and that left 144 applicants to be considered.  The Committee then moved to sub-criterion (3) which is the open activities criterion.  There were 76 who qualified under sub-criterion 3 so the total admitted was then 118 which left 68 A grades looking for 2 places.  The Committee then moved to sub-criterion (4) which requires the school or club certificate and they found that there were 37 of the remaining applicants who satisfied sub-criterion (4) and in accordance with the rules they listed those applicants by age and the first 2 qualified.  Accordingly 35 of the applicants who satisfied sub-criterion (4) did not find places.  That included Shea O'Doherty with his Speedwell Trust Certificate.  He was eleventh of the 35 by age ranking.  Of course the quota was filled at 120 places and so there was no place for him.  Nor was there a place for the remaining applicants who had satisfied sub-criterion (4) nor for the 31 others who did not qualify for sub-criterion (4) status and that included Noel Anderson.  He was not graded by age, because that exercise was unnecessary as he was too far down the potential qualifying list. 

By these applications for Judicial Review there are three areas of attack on the existence and application of sub-criterion (3) and sub-criterion (4).  The first ground of attack alleged a breach of Article 16(6) of the 1997 Order.  Article 16(6) provides:-

"The criteria drawn up under paragraph (1) and to be applied in selecting –

 

(a)        …

 

(b)        children in the relevant age groups for admission to a Grammar School,

 

shall not include the performance of the children in any test or examination held by, or on behalf of, the Board of Governors of secondary school".

 

            Mr Treacy for the applicants, argued that a test or examination was held by or on behalf of the Board in this case, that is, the requirement to provide the certificate or award was a test or examination held by or on behalf of the Board.  Further he argued that the performance was being measured by this requirement and not just by participation in the activity.  In addition he argued that the requirement depended upon the judgment of the Committee, which as the wording of sub-criterion (3) indicates, did require the judgment of the Committee in relation to the certificate and the activity to which the certificate related. 

Mr Long, for the Board of Governors, emphasised that the interpretation of Article 16(6) had to be considered in context.  He conceded that informal tests and examinations are not permitted under Article 16(6) and I would agree that this provision is designed to prevent either formal or informal tests or examinations set by the individual schools in order to determine admission.  Further he submitted that the requirement was not a performance test which was being applied by the Board.  Article 16(6) is directed against schools setting their own qualifying tests for admission and seeking to grade performance in activities that are not limited to the academic sphere.  The present criteria seek to establish the holding of certificates or awards in activities and do not involve the Board testing performance standards.  In my opinion that which was required by sub-criteria (3) and (4) was not a breach of Article 16(6) but the verification of committed involvement in outside activities.  Accordingly I reject the first ground of challenge that this was a test or examination which was set by the Board of Governors in contravention of Article 16(6). 

The second attack was that the application of sub-criteria (3) and (4) involved indirect discrimination against lower income families. 

Mr Treacy relied on Article 14 of the European Convention on Human Rights.  Article 14 provides –

"The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any grounds such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status".

 

            Mr Treacy relied on social origin and property and (financial) status.  Within "other" status he embraces his own category of financial status and treats property and financial status as the same matter. 

It is accepted that Article 14 is not freestanding but relies on discrimination related to another Convention right.  In this case the right to education under Article 2 of the First Protocol provides –

"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 of the rights of parents to ensure such education and teaching in conformity with their own religious and philosophical convictions". 

 

There is no right to a particular form of education and there is no right to be educated at a particular school but there is a right not to be discriminated against in the provision of whatever education is provided.  The grounds of complaint in this case relate to the alleged adverse impact of the sub-criteria on the lower income family and that is a two-fold complaint.  First, that the activities which are specified are principally features of the financially sound middle class says Mr Treacy and he refers in particular to music and horse riding.  Secondly, he submits that the attainment of certificates is in itself not a feature of low-income families.  He provides a table to demonstrate the types of activities that are involved and that table breaks down the pupils admitted under sub-criterion (3) and the principal activity was music where about one-third of those involved submitted a music certificate.  One submitted a horse riding certificate, 2 submitted gymnastics certificates, 6 submitted dance certificates, 8 essay or poetry writing, 3 science and technology, 2 speech and drama, 5 road or fire safety, 3 cycling proficiency, 2 public speaking, 6 sport activities, 2 quiz/singing and 8 others.  The individual breakdown appears in the schedules prepared by the Committee which assessed the children and when one looks at sub-criterion (3) one sees that music features large and that there are some sporting activities but there are also certain non-sporting/non-musical activities, for example, a national cycling proficiency certificate from the Department of the Environment, a third prize in Fire Safety Competition held by Derry City Council, highly commended from the Londonderry Roads Safety Committee, a young writers certificate, a winners certificate in the Derry Credit Union quiz, the Clondalkin Youth Service achievement certificate and an Irish dancing certificate.

An issue arises as to the evidence on which reliance is to be placed to establish Mr Treacy's two-fold complaint about the impact of these requirements on low-income families.  In the first place there is no evidence that the two families involved are low-income families or that they were prevented from undertaking any particular activity for financial reasons.  In relation to the evidence generally Mr Treacy refers to a number of matters, which he says establish his contention that there is a social bias in these criteria. 

He refers first of all to the affidavit evidence from the parents and to paragraph 10 of the affidavit sworn on behalf of Shea O'Doherty where his mother considered that the criteria may have discriminated against students from lower income families.  There we have a rather qualified assertion.  It is stronger in paragraph 15 where she says that she believes that the criteria do discriminate against poorer families.  She expresses the view that candidates from lower income families are more likely to be involved in subsidised extra curricular activities arranged at school rather than more expensive clubs and activities arranged by other bodies outside school.  However it should be noted that activities in schools are not disregarded under sub-criterion 3.  It is the certificate that must be obtained by some outside verifying body but one may develop the activity at school and obtain the certificate from an external association.  These assertions by the deponent do not establish that the activities which are contemplated by the sub-criteria are beyond the reach of families on low incomes. 

Secondly, reference is made to Mr Durkin's letter of 6 June 2001.  He states that the exclusion of activities organised by the school or group of schools or clubs means that this provision favours those with private means to fund given activities.  Further he states that in discounting activities organised by schools you ignore some pupils extra-curricular achievements and do a disservice to good work in schools and clubs.  This approach overstates the effect of these criteria.  It is not the activity in the school that counts but it is the certificate that counts.  The activity in the school obviously provides the basis for the pupil to gain the certificate so it is by no means overlooked.  What is overlooked under sub-criterion (3) is the school's own certificate although that does not prevent the activity leading the pupil to gain a certificate elsewhere.  What is required is external verification of committed involvement in the extra curricular activity. 

The third matter to which Mr Treacy referred was the table which provided a breakdown of the certificates.  This does indicate preference for music.  The activities may or may not require private lessons.  Music is said to be principally a middle class preoccupation.  I am told by Mr Long from the Bar that music is free to low-income families in this school.  Again I have no evidence of that assertion but if low-income families have free access to music that may be the reason so many rely on music as a qualifying certificate.  I just do not have the evidence that there is bias against low-income families because the principal activity is music.  Nor is it apparent when one looks at the activities that the pupil needs to have particular levels of finance to obtain road safety and fire safety certificates. 

Fourthly, Mr Treacy refers to the Lundy Report.  This is a report prepared by Laura Lundy on Access to Post Primary Schools in Northern Ireland, which was submitted to the Northern Ireland Human Rights Commission and published in May 2001.  On page 4 of her report she refers to the fact that some criteria adopted by schools are patently or arguably in breach of legal obligations and she refers to criteria which prioritise applicants on the basis of ability or aptitude in sport and music.  At page 21 of her report she gives the reasons for this statement.  First the criterion may be unlawful under the 1997 Order as requiring ability or aptitude and as applying a test or examination.  Secondly, in relation to sport, for instance, there may be discrimination on the basis of sex.  Thirdly the prioritisation of children with certificates in music etc will almost certainly give an advantage to those already socially advantaged and therefore raise questions about the compatibility of these criteria with the objectives of the new targeting social need.  If there were no provision for free music (about which I have no evidence in any event) and if the requirements were limited to a music certificate there may be an arguable case.  However the requirements are not limited to music but permit a very open ended range of activity which is not inherently disadvantageous to any particular section of society. 

Fifthly, I am asked by Mr Treacy to take judicial notice of the fact that these activities are very much middle class matters.  There may be assumptions that might be made about music or indeed about horse riding but I can't make any assumptions about the other activities and particularly fire safety certificates and road safety certificates.  I don't know whether or not people who are socially disadvantaged are unable to gain these certificates.  There is no such evidence and nothing compels me to believe that that is so.  There is no evidence that admits of the conclusion that the specified activities disadvantage low-income families.  I am certainly not prepared to assume such disadvantage given the wide range of activities that can qualify for acceptance.  I am certainly not prepared to assume that low-income families are less likely to undertake any certificates.

In any event the members of the affected group are socially disadvantaged A grade pupils.   How do pupils from low-income families, who have already gained A grades despite their circumstances, meet the challenge of extra curricular activity?  There is no evidence on such matters and I am not prepared to make assumptions about opportunity or preparedness to undertake such activities. 

Accordingly, I am not satisfied that the evidential foundation for the applicant's claim of indirect discrimination has been laid in this case.  I have proceeded on the basis of a number of assumptions under this ground.  First I have assumed, without deciding, that social origin under Article 14 embraces the socially disadvantaged.  Secondly, I have assumed, without deciding, that financial status is a ground of discrimination.  I note the comments of Lester and Pannick in Human Rights Law and Practice at paragraph 4.14.9 - 

"Although Article 14 specifically outlaws discrimination on grounds of 'property' the ECHR has shown itself reluctant to hold that the article prohibits discrimination on grounds of financial status.  In Airey v Ireland [1979] where the question arose directly, the court preferred to hold that a failure to provide civil legal aid to an indigent litigant was a substantive breach of Article 6, taken alone, then finding it unnecessary to consider the applicant's claim under that article taken with Article 14".

 

Thirdly, I have assumed, without deciding, that indirect discrimination is prohibited under Article 14.  Lester and Pannick at paragraph 4.14.11 state that –

"The ECHR has yet to rule definitively on whether Article 14 prohibits indirect discrimination (as well as direct discrimination).  It would be surprising, however, if such discrimination were held to be excluded from the scope of the article given that the concept of indirect discrimination is well established in European Community Law and elsewhere". 

 

This issue is also discussed in Clayton and Tomlinson The Law of Human Rights paragraph 17.90 –

"The question of whether Article 14 prohibits indirect discrimination has not been addressed by the Court.  However, it is strongly arguable that rules which are neutral on their face should be susceptible to challenge under the Convention if they are in practice discriminatory.  It should be noted, however, that in a number of cases involving alleged allegations of 'religious discrimination' the Commission has held that there is no discrimination if a law of general application has a disproportionate impact on a particular group.  It is not clear whether the indirect discrimination points were specifically addressed in these cases which, it is submitted, are unlikely to be followed". 

 

The third ground of attack in these applications focussed on the alleged illegality or unreasonableness of the sub-criteria in four respects. 

First, the alleged lack of objectivity or uniformity.  Mr Treacy refers to the legislative history of removing the subjective assessment of pupils as evidenced by the fact that primary school heads at one time made assessments of the pupils and that subjective element of the transfer procedure has been moved by legislation.  It is argued for the applicants that, contrary to that legislative history, there is now a subjective assessment by the Board of Governors of a list of activities and certificates and awards.  I think it is important to focus on what precisely these two sub-criteria require.  As I have indicated above they require verification of a commitment to extra curricular activity and not a particular performance standard.  In my view requiring a certificate involves an objective and uniform approach, once it is recognised that it is not the standard but the verification of committed involvement which is thereby established. 

Then it is argued that the assessment is a subjective matter because the wording in sub-criterion (3) refers to the judgment of the Selecting Committee.  The judgment of the Selecting Committee is limited to two matters, one being to establish the requisite award or certificate and the other being the nature of the activities to which the certificate relates.  The Selecting Committee accept or reject qualifying certificates and qualifying activities. 

Secondly, it is argued that the criteria must effect the elimination of a candidate.  The argument is that the sub-criteria do not actually qualify as criteria because their application includes candidates rather than eliminates them.  This approach is taken from a comment which is made by Laura Lundy in Education Law Policy and Practice in Northern Ireland at paragraph 4.59

"The definitions of a criteria discussed earlier suggest that the criterion must itself act as a means of eliminating the individual applicant". 

 

In my view a criterion may effect elimination or it may effect selection.  In the present case it is agreed that sub-criterion (3) effects selection because it requires a certificate but does not eliminate those without such certificates.  Whether a criterion effects elimination or selection depends upon how the criterion is drawn and to suggest that it is not a criterion because it does not eliminate candidates seems to me to be too narrow.  Reliance is also placed on the decision in Farran and Collins (1990) 6 NIJB 72.  Hutton LCJ considered (at page 91) that the word "criterion" or "criteria" suggests that an individual child is to be considered in relation to each criterion and that the question is –

"Has the child satisfied the particular criterion?"

 

and not:

 

"Is the child better qualified, or the higher standard, than another child in respect of the particular criterion?"

 

I do not believe that this passage lends any support to the argument that criteria require elimination and not selection. 

Thirdly it was argued that the criteria are not exhaustive as required by Article 16(5) of the 1997 Order.   Article 16(5) states –

"The criteria drawn up under paragraph (1) shall be such as to ensure that the Board of Governors by applying those criteria can comply with Article 14 before the criteria are exhausted". 

 

In other words the Board of Governors should not apply the criteria and find that there are children left and places left that have not been allocated.  In my opinion these criteria are exhaustive.  When one looks at what happens after sub-criterion (4) has been applied and all the places have not been filled, one sees that there is a process under sub-criterion (5) which has to be applied.  The other applicants at that point are listed on an age basis and if necessary in alphabetical order.  So at the end of the day if there is an excess number of applicants the Board allocates the places in accordance with age and if there are children of the same age they are listed in alphabetical order.  If there are more applicants than places the system cannot fail to fill all the places and therefore I reject the argument the criteria are not exhaustive. 

Finally it was argued that the sub-criteria are irrational.  It was submitted that there is conflict between the nature of sub-criterion (3) and sub-criterion (4) and Mr Treacy referred to some of the examples from each category, with the former requiring external verification and the latter being satisfied with internal school or club verification. The school has decided that external verification is to be preferred to internal verification by the pupils club or school.  That is a perfectly tenable position and could not be described as irrational.  Further Mr Treacy suggested that the criteria embrace a "ragbag of activities" as he put it, which cannot be compared with each other.  Again it should be noted that the process involves verifying committed involvement in a particular activity and it is not measuring a level of performance as such, and in so doing the variety of activities that are involved are not being compared with each other.  It is the fact that you participate in and can verify involvement in these activities to a committed extent which has to be established. 

            Accordingly for all of the above reasons I am not satisfied that these criteria are unlawful or that the decisions that has been made here in relation to the applicants should be quashed.  There are a number of additional matters which have arisen during the hearing.

The first relates to the appropriate remedy if I had made a finding that these criteria were unlawful for any reason.  In Cunningham (1995) Girvan J questioned what the remedy ought to be in the event of a finding in favour of the applicant and at page 9 of that decision he says this –

"… the legal consequences of a finding would be by no means clear.  Since the tribunals are precluded from doing anything other than determining whether the criteria have been applied and correctly applied and since the tribunals cannot entertain arguments in relation to the validity or legality of the criteria they are faced with what appears to be an impossible task if the criteria are unlawful or are incapable of being given a workable meaning.  If schools adopt unlawful or unworkable criteria it may well be that the school is bound to give effect to parental preference by virtue of Article 36 since the school has not adopted criteria which would effectively limit the rights arising from the statutory right of parents to express their preference".

 

            In Trainor (unreported 8 August 1996) Kerr J quashed the decision of a Board of Governors and refused to quash the decision of the Tribunal.  He said in response to the argument that the Tribunal should have acknowledged the incompatibility of certain matters and should have concluded that the direct application of the admissions criteria was only possible if certain matters were ignored - 

"Such an approach would confer on the Tribunal a role to examine the criteria with a view to ascertaining their consistency with statutory provisions.  It is clear from an examination of the general framework of the legislation that this was not the intention of the legislature".

 

Both these cases refer to the limited role of the appeal Tribunal, which is set out in Article 15(4) of the 1997 Order.  Article 15/4 provides that –

"An appeal under this Article may be brought only on the ground that the criteria drawn up under Article 16(1) by the Board of Governors of a school –

 

(a)        were not applied; or

 

(b)        were not correctly applied.

 

in deciding to refuse the child admission to the school".

 

If the criteria applied are found by the Court to be unlawful then they ought not to have been applied by the Board of Governors and therefore the Tribunal, if reconsidering the matter on the direction of the court, would find that the criteria to be applied were not correctly applied because they took account of unlawful criteria.  In those circumstances, if the matter were referred back to the Tribunal with directions that the criteria were unlawful and that the matter should be considered without regard to the unlawful criteria, Articles 15(5) and (6) would apply.  Article 15(5) provides –

"On the hearing of an appeal under this Article –

 

(a)        if it appears to the appeal tribunal that the criteria were not applied, or were not correctly applied, in deciding to refuse the child admission to the school, the tribunal shall subject to paragraph (6) allow the appeal and direct the Board of Governors of the school to admit the child to the school;

 

(b)        in any other case, the tribunal shall dismiss the appeal".

 

So if it is the case that by applying unlawful criteria the Board are not correctly applying criteria then the Tribunal has the power to direct that the school should admit the child.  By Article 16(6), if it appears to the Tribunal that, had the criteria been applied correctly, the child would have been refused admission then it shall dismiss the appeal.  That scheme seems to me to allow the Tribunal to determine whether, in the event that the criteria had been applied correctly ie without reference to the offending criteria, the child would have been granted or refused admission, and the Tribunal shall allow or dismiss the appeal accordingly.  In the present case, if one were to disregard the offending criteria, it is possible to determine whether or not these children would have been admitted because the remaining sub-criterion (5) depends upon an age assessment.  There is available the list of ages and it would be possible to determine whether or not these children fall within the 78 places which were available after the application of sub-criteria (1) and (2).  This is not to suggest that the Tribunal should become judges of the criteria as this would only arise on a reference back to the Tribunal by the Court with appropriate directions.  I am not so attracted by the alternative to this approach, which would have been to quash the decision of the Board of Governors and allow them to reconsider the matter in the light of the remaining criteria, because they cannot increase the admissions number to the school.  I was informed by Counsel that had the sub-criteria been found to be unlawful the school would reassess all the children who had been introduced under the unlawful criteria.  I do not believe that such an approach would have been necessary and I would not have considered making any order which would have had that effect.  The solution in the present case, had I decided that these criteria were unlawful, would have been to refer the matter back to the Tribunal with appropriate directions.  That may not be appropriate in other cases. 

The second additional matter is the question of delay.  The respondents referred to the publication of the criteria in this case in February 2001.  The applicants refer to the notices of decision having been made in June 2001.  I agree with the approach taken on this issue by Mr Justice Kerr in Trainor.   Applicants are justified in pursuing appeals to the appeal Tribunal before launching applications for judicial review.  For this reason I am not prepared to refuse relief on the grounds of delay. 

Lastly, the respondents contend that the appropriate applicant should be the parent.  This approach is based on a decision of the Court of Appeal in England and Wales in the case of Re J C (Unreported 31 July 2000). 

            At paragraph [31] Kennedy LJ stated the matter in this way –

"I am satisfied that where a parent wishes to challenge a local education authority or an appeals committee in relation to the handling of a parents' expression of preference as to the school at which his or her child should attend it is the parent and not the child who should mount the challenge.  I accept that the child may have sufficient interest to mount a challenge, and in some exceptional cases it may be appropriate for the child to make the application for permission to apply for judicial review but normally as it seems to me, the only reason why the application is made in the name of the child is to obtain legal aid, and to enable the parents to protect themselves in relation to costs, that I regard as an abuse.  Our legal system works upon the basis that those who seek a remedy should expose themselves in relation to costs.  It the devise is used in future, permission to apply for judicial review may well be refused on that ground".

 

Miss Gibson on behalf of the Admissions Appeal Tribunal did not concede that the children had a sufficient interest to apply on their own behalf but in my view it is apparent that a child does have sufficient interest to apply on his or her own behalf.  The legal aid department was made aware of this issue by correspondence from the Education and Library Boards Legal Service in March 2001 which attached a copy of the above judgment.  While it is the established practice in this jurisdiction that applications are made by the child there is a legitimate concern about any unnecessary drain on the legal aid fund and in particular any drain on the schools budget in the event that the respondents are successful in resisting an application from a legally aided child.  This in my view is a matter for further consideration by the legal aid department but I am not prepared to require the present applications to proceed in the names of the parents after the legal aid department had granted legal aid in their cases with the knowledge of the remarks of the members of the Court of Appeal in England and Wales.  In the event I am dismissing the applications with no order for costs save for the legal aid taxation of the applicants' costs. 

 

 

 

 

Transcribed:     20 August 2001