R (B) v Head Teacher of Alperton Community School and Alperton Community School Head Teacher and Governing Body; R (C (A Child)) v Cardinal Newman Roman Catholic School Governing Body

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There are three applications for judicial review before the court. In ex parte C ("C") the claim is made in connection with the non-admission of the first claimant (an ll year old boy) to the Cardinal Newman Roman Catholic School. His father is the second claimant.

In ex parte B, ("B") the claim is made by a l5 year old boy in connection with his permanent exclusion from Alperton Community School on 2 July 1999.

In ex parte T ("T") the claim is made by a l2 year old boy in connection with his permanent exclusion, for a second time, from Wembley High School on 28 January 2000.

Each of the claimants assert that certain provisions of the School Standards and Framework Act 1998 ("the 1998 Act") contravene certain Articles of the ECHR and that the court should make a declaration of incompatibility under the Human Rights Act 1998 ( HRA). Each claimant raises discrete grounds of challenge otherwise than under the HRA. These arguments have been advanced by Mr Rawlings. Miss Mountfield has advanced the HRA arguments. Mr Hyams appeared for the first to third defendants in "B" and the first to fourth defendants in "T". Mr Coppel appeared for the first and second defendants in "C". Mr Clive Lewis appeared for the Secretary of State on each of the applications.

"C" —THE FACTS

Mr C filled out a Year 7 Application Form on l4 October 1999, for the entry of his son to the Cardinal Newman Catholic Secondary School. At the time the form was filled out he had a copy of the Admissions Policy of the school, which accorded priority to:

"1. Catholic children (for whom this school is first choice) whose application has been supported by a Priest's signature.

Within this category, priority to be given:

(a) to pupils currently attending our partner Junior Schools in the Luton/Dunstable area who have a brother or sister currently on roll at Cardinal Newman School;

(b) to pupils currently attending our partner Junior Schools in the Luton/Dunstable area whose brother or sister previously attended Cardinal Newman School, (with priority to most recent);

(c) to other pupils currently attending our partner Catholic Junior Schools in the Luton/Dunstable area;

(d) to pupils currently attending other Junior Schools in the Luton/Dunstable area who have a brother or sister currently on roll at Cardinal Newman School;

(e) to pupils currently attending other Junior Schools in the Luton/Dunstable area whose brother or sister previously attended Cardinal Newman School (with priority to most recent);

(f) to other pupils currently attending other Junior Schools in the Luton/Dunstable area;

(g) to pupils currently attending Catholic Junior Schools outside the Luton/Dunstable area;

(h) to pupils currently attending other Junior Schools outside the Luton/Dunstable area.

Within this category, if a child attends a specialist SEN school or unit but would otherwise have attended one of our partner Junior Schools if such SEN provision had been available, then that child shall be deemed entitled to be considered equally according to the above criteria.

Within each of the above sub-sections priority will be given to those with more regular attendance at Sunday Mass and active participation in Parish life.

(2) Catholic children for whom this school is first choice whose families are not known to be practising their religion. A copy of the child's Baptismal Certificate must be provided. An interview with a member of the Governing Body or Senior Management staff may be required to establish that parents and children do subscribe fully to the school's Catholic ethos. Within this category, priority to be given in the same order as (a) to (h) above."

Part 2 of the Application Formed contained the following statement, set out in a box, at the commencement of the section:

It is important to complete this section as fully as possible. It will be passed to the named Priest/Minister for signature. If you are unable to identify a Priest/Minister who knows you —don't worry —your application will be considered according to the criteria set out in the Admissions Policy. Please remember, whether your child is currently attending a Catholic Junior School in Luton or not, you must complete and return an application if you want a place for your child at this school.

Beneath the box, after a request for certain particulars, the following appears:

"Name of Priest/Minister in that Parish who knows you:

How long have you attended that parish?

How often does your child attend Saturday Evening/Sunday School?

Weekly 2/3 times a month Once a month

6 times a year Once a year Never

In that group of questions the box "Once a year" was ticked; no other information was given.

The application was refused by letter dated 3l January 2000. It stated that:

"All of the places available for September 2000 have been allocated according to the criteria set out in that policy. Although our standard number for entry is 242, the Admissions Committee have offered 249 children places for September. Your application did not meet fully the crtieria in the first category ..."

The letter offered an opportunity to be placed on a shortlist and gave notice of the right of appeal.

The application did not meet the criteria because it was not supported by a priest's signature. The combined effect of the terms of the Admissions Policy and the section on the application form in connection with attendance at Mass is, that the priest's confirmation of the regularity of attendance is required, despite the terms of the box on the form which contains the words: " ...If you are unable to identify a Priest/Minister who knows you —don't worry —your application will be considered according to the criteria set out in the Admissions Policy. The identity of the priest does not matter if the parish church is identified. If the parish is not identified the parish of the pupil's existing school will be taken to be the relevant one." C's form was sent to the Rev Thomas Kenny of St Joseph's Church, Luton, but he did not complete Part 3 of the form. Although the position could have been stated with greater clarity the discernible meaning is, that regularity of attendance at Mass is to be disclosed. A priest's confirmation of the attendance will be required but ignorance of the priest's identity does not create a problem because the school can usually ascertain the identity from surrounding circumstances.

There was an appeal to an Independent Appeal Panel (IAP) pursuant to Section 94 of the l998 Act. The appeal was heard and determined, between 28 and 30 March 2000, in conjunction with 4l other appeals. By the time of the hearing:

(1) Rev Fr Kenny had written a letter (a reference) requesting " ...that C be admitted to Cardinal Newman in September 2000". The letter also recorded that Mr C had not realised "... that regular attendance at mass or being actively involved in the Catholic community would be a condition for entry". It referred to certain promises for the future and stated: "I accept his sincere resolution to make amends and to undo any spiritual neglect on his (sic) to ......C". The disclosed regularity of attendance, once a year, obviously called for no confirmation but the application was, by then, supported by a priest's signature.

(2) The school admission number had not been made up because l4 of the 249 offers which had been made had not been taken up. Therefore, only 235 places had been filled against the standard number of 242.

The procedure adopted for hearing the 42 appeals is set out in the witness statement of Ronald Geoffrey Dean, who chaired the panel. So far as material to the issues before the court the following facts appear:

• The clerk, Nicholas Powley, advised the panel about the law and in particular "the two stage test" which it had to adopt.

• The appeals were heard individually and the procedure was explained before each hearing began. Parents (including Mr C), were told that there were 40 or more appeals and that the panel would probably not ask the head teacher a lot of...