JR87 (By her Mother and Next Friend) and her Father ("G") Application for Judicial Review
| Jurisdiction | Northern Ireland |
| Judge | Colton J |
| Neutral Citation | [2022] NIQB 53 |
| Date | 05 July 2022 |
| Court | Queen's Bench Division (Northern Ireland) |
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Neutral Citation No: [2022] NIQB 53
Judgment: approved by the court for handing down
(subject to editorial corrections)*
Ref: COL11833
ICOS No: 2019/89712/01
Delivered: 05/07/2022
IN THE HIGH COURT OF JUSTICE IN NORTHERN IRELAND
________
QUEEN’S BENCH DIVISION
(JUDICIAL REVIEW)
________
IN THE MATTER OF AN APPLICATION BY JR87 (BY HER MOTHER AND
NEXT FRIEND) AND HER FATHER (“G”) FOR JUDICIAL REVIEW
________
Mr Ben Jaffey QC with Steven J McQuitty (instructed by Phoenix Law, Belfast) on behalf
of the Applicants
Dr Tony McGleenan QC with Phillip McAteer (instructed by the Departmental Solicitors
Office) for the First Respondent, the Department of Education
Mr Paul McLaughlin QC with Roisin McCartan (instructed by the Education Authority
Solicitors) on behalf of the Second Respondent, the Board of Governors of a school
________
COLTON J
Introduction
[1] “Give me a child until he is seven years old” said Saint Ignatius Loyola “and I
will show you the man.” The founder of the Jesuit Brotherhood pithily articulates
the influence that teaching can have on the young in the formation of their adult
beliefs.
[2] This is an application for judicial review by a child, JR87 (the first applicant)
and her father G (the second applicant) in respect of the teaching arrangements for
religious education (“RE”) and collective worship (“CW”) in controlled primary
schools in Northern Ireland. The applicants specifically challenge:
(a) A decision of the Board of Governors of a school (the second respondents) the
child attended in Belfast from pre-school to primary 3 (“the school”) dated
21 June 2019 (“the impugned decision”); and
(b) The following provisions of Northern Ireland legislation (“the impugned
legislation”) which the applicants submit are incompatible with their rights
under the Human Rights Act 1998 and for which the Department of
Education (the first respondents) are responsible (“the Department”):
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(i) Article 21(1), (2), (3), (3A), (4), (5) and (7) of the Education and Libraries
(NI) Order 1986 (“the 1986 Order”);
(ii) Articles 5(1)(a), 11(1)(b) and 13(1)(a) and 13(3) of the Education (NI)
Order 2006 (“the 2006 Order”);
(iii) The Education (Core Syllabus for Religious Education) Order (NI) 2007
(“the 2007 Order”).
[3] I am obliged to counsel for their written and oral submissions. It is evident
that all the legal representatives in this case carried out extensive research which
resulted in well-marshalled and focused submissions.
Relief
[4] The applicants seek the following relief against the Department and in respect
of the impugned legislation:
(i) An order of certiorari quashing the impugned legislation on the basis that the
legislation is incompatible with, and in breach, of the applicants rights under
article 2 of the First Protocol ECHR (“A2P1”), read with article 9 and is also in
breach of their rights under articles 8, 9, 10 and 14 ECHR (within the ambit of
A2P1 and/or article 8 and/or article 9 ECHR), alternatively a declaration that
the legislation cannot be construed compatibly with Convention rights
pursuant to section 3 of the Human Rights Act 1998, alternatively a
declaration of incompatibility pursuant to section 4 of the Human Rights Act
1998;
(ii) A declaration that the Department has acted ultra vires as in breach of Article
44 of the 1986 Order, section 75 of the Northern Ireland Act 1998 and, in
respect of the 2007 Order alone, in breach of section 24(1)(a) and (c) of the
Northern Ireland Act 1998;
(iii) A declaration that the core syllabus is unlawful as it is ultra vires and of no
force or effect;
(iv) Such further or other relief as the court deems necessary;
(v) Damages and/or just satisfaction;
(vi) Costs.
[5] The applicants seek the following relief against the Board of Governors of the
school in respect of their impugned decision:
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(i) An order of certiorari quashing the impugned decision;
(ii) A declaration that the impugned decision was in breach of section 6 of the
Human Rights Act 1998 as in breach of the applicants’ rights under A2P1,
read with article 9, and is also in breach of their rights under articles 8, 9, 10
and 14 ECHR (within the ambit of A2P1 and/or article 8 and/or article 9
ECHR);
(iii) A declaration that the impugned decision was ultra vires and of no force or
effect, particularly as in breach of article 4 of the 2006 Order;
(iv) Such further or other relief as the court deems necessary;
(v) Damages and/or just satisfaction;
(vi) Costs.
Factual background
[6] JR87 is now 7 years old. The school she attended is a controlled, grant-aided
primary school with a nursery. It teaches children only in years 1-3. She completed
her pre-school year with the school followed by primary 1 to primary 3. She moved
to a new (controlled) school in September 2021, commencing primary 4 where she is
still subject to the same legislation and core syllabus for the teaching of RE.
[7] In May 2019 the child’s parents sent a letter to the school querying the
provision of RE and CW. They are a non-religious family and were concerned that
by the time the child had commenced primary 2 she had absorbed and adopted a
religious (specifically Christian) worldview which was not consistent with their own
views and beliefs. By way of illustration the second applicant avers that in the
absence of any religious exposure at home his daughter now believes that God made
the world and she repeats and practices a prayer/grace that she was taught at school
at snack-time. His concern is that his daughter is learning Christianity and not
learning “about” Christianity in a school context that effectively assumes its absolute
truth and which, whether intentionally or otherwise, encourages her to do the same.
[8] The school responded to this letter on 21 June 2019. This is the decision under
challenge. The gist of the response was to say that the school would continue to
provide CW and RE exactly as it had done and in accordance with the school’s
understanding of the impugned legislation. The school did set out the option of the
child being excused from attendance at RE and CW. The parents do not accept this
to be an appropriate alternative or lawful solution. It was also confirmed in the
schools letter that all children at the school take part in RE and CW. The parents
therefore held concerns around their child being singled out by not attending on the
basis they are not Christians. Both parents are at pains to point out that they have no
issues with the school other than the provision of RE teaching and CW. They are
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...[26] Thus, no issue in relation to standing was taken in the cases to which I have referred at para [15]. In the case of JR87 [2022] NIQB 53, this court took no issue in relation to the standing of a child who brought a case along with her parents in the context of alleged discrimination ag......