R (Begum) v Governors of Denbigh High School

JurisdictionEngland & Wales
CourtCourt of Appeal (Civil Division)
JudgeLord Justice Brooke,Lord Justice Mummery,Lord Justice Scott Baker
Judgment Date02 Mar 2005
Neutral Citation[2005] EWCA Civ 199
Docket NumberCase No: C1/2004/1394

[2005] EWCA Civ 199

IN THE SUPREME COURT OF JUDICATURE

COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE ADMINISTRATIVE COURT

BENNETT J

[2004] EWHC 1389 (Admin)

Royal Courts of Justice

Strand, London, WC2A 2LL

Before

Lord Justice Brooke

Vice-President of the Court of Appeal (Civil Division)

Lord Justice Mummery and

Lord Justice Scott Baker

Case No: C1/2004/1394

Between
The Queen on the Application of SB
Claimant/Appellant
and
Headteacher and Governors of Denbigh High School
Defendants/Respondents

Cherie Booth QC, Carolyn Hamilton and Eleni Mitrophanous (instructed by the Children's Legal Centre) for the Appellant

Simon A Birks (instructed by Head of Legal Services, Luton BC) for the Respondents

Lord Justice Brooke

This is an appeal by SB against an order made by Bennett J in the Administrative Court on 1 st June 2004 whereby he dismissed her application for judicial review of a decision of the Headteacher and Governors of Denbigh High School, Luton ("the School"), who had refused to allow her to attend the School if she was not willing to comply with their school uniform requirements. The same judge refused to grant her permission to apply for judicial review of the local education authority's actions in the matter, and she has not been granted permission to appeal against that refusal.

1

The School is a mixed community school for children between the ages of 11 and 16. Children at the school speak 40 different languages, and 21 different ethnic groups (and 10 different religious groups) are represented in the school population. In 1993 90% of the pupils were Muslim, but since that time the school's intake has become more diverse. 79% of the pupils now classify themselves as Muslim. About 71% are of Pakistani or Bangladeshi heritage.

2

The Headteacher, Yasmin Bevan, was born into a Bengali Muslim family. She grew up in India, Pakistan and Bangladesh before coming to this country. She has had a great deal of involvement with Bengali Muslim communities in this country and abroad, and she says that she understands the Islamic dress code and the practices adopted by Muslim women. She does not, however, purport to have a detailed knowledge of the theological issues which surfaced in this dispute.

3

She qualified as a teacher in 1977, and became headteacher at the school in 1991. In those days its performance was well below the national average, and it was viewed negatively by the local community. Its performance is now well above average for schools with a similar intake, and it cannot accommodate all the pupils who wish to attend it. It has ranked tenth in the country for adding value to its pupils' prior attainment. It has won school achievement awards from the Department for Education and Science (DfES), and it featured in a video on ethnic minority achievement which the department produced.

4

For many years the School has taught pupils from a wide variety of ethnic origins, cultural backgrounds and religious factions. The School's policy has been to accommodate everyone so far as it reasonably can, whilst providing a suitable environment in which children may learn and live together in harmony. The headteacher believes that a school uniform forms an integral part of the school's drive for high standards and continuous improvement. In her view a clear school uniform policy promotes a positive ethos and sense of community identity, and ensures that students are dressed in a way that is safe, practical and appropriate for learning. It also prevents them from feeling disadvantaged because they cannot afford the latest designer items, and makes them less vulnerable to being teased because they are wearing the wrong clothes.

5

This case is concerned with the School's uniform requirements for girls. No real issue arises over the requirements for the school jumper (navy blue v neck jumper with school logo), shirt (plain white cotton/polyester shirt, short or long sleeve with collar), tie, socks and shoes. Girls may wear a skirt, trousers or a shalwar kameeze, and there are specifications for each. For the shalwar kameeze the specification reads:

"Shalwar: tapered at the ankles, not baggy.

Kameeze: between knee and mid-calf length, not gathered or flared. Fabric must be cotton or poplin, not shiny, silky or crinkly."

6

The uniform requirements are accompanied by a sketch of the front and back views of a girl wearing a shalwar kameeze, with appropriate commentary. The kameeze is a sleeveless smock-like dress with a square neckline, so that the girl's collar and tie are visible. The shalwar consists of loose trousers which taper at the ankles. Except in hot weather the girls wear their school jumper under the kameeze.

7

Girls are also permitted to wear headscarves so long as they comply with three specific requirements. They must be lightweight and navy blue, and worn so that the collar and tie can be seen. They must also cover the head, be folded under the chin and taken round to the back of the neck, with their ends tucked in in conformance with health and safety requirements.

8

The claimant contends that for a Muslim woman who has started to menstruate the shalwar kameeze does not comply with the strict requirements of her religion. She insists that she should be allowed to wear the jilbab, which is a form of dress worn by Muslim women which effectively conceals the shape of their arms and legs. Very strong religious beliefs are close to the centre of this dispute.

9

For the purposes of this judgment I will adopt the spelling of the words "kameeze" and "jilbab" that was used by the parties to this litigation.

10

The shalwar kameeze had featured in the school uniform policies prior to 1993, but in that year a Working Party report led to changes being made to details of the school uniform, and permission being given to girls to wear headscarves for the first time.

11

The shalwar kameeze was seen as satisfying the religious requirement that Muslim girls should wear modest dress, and girls from different faith groups, such as Hindus and Sikhs, also wear it. Parents, staff and students were all consulted over the new design, and there was also consultation with the local mosques. The design had to take into account not only religious considerations, such as the need for modesty, but also health and safety considerations, and it had to be suitable for all school activities.

12

The School's uniform policy has always had the support of the School's governing body. A quarter of the present governors have held that office since at least 1991. Four of the six parent governors are Muslim, as are three of the governors appointed by the local education authority. One of the community governors chairs the Luton Council of Mosques. In March 2004, shortly before the judge heard this case, the governors reaffirmed their unanimous support for the uniform policy.

13

The claimant's family came to England from Bangladesh. She has two older sisters and two older brothers. She was born in this country in September 1988. Her father died in 1992, and through most of the history of the dispute she was living at home with her mother (who did not speak English) and one sister and one brother: the others had moved out. Her mother died in 2004. One of her brothers is acting as her litigation friend in these proceedings.

14

She first attended the School in September 2000, and during her first two years there she wore the shalwar kameeze without complaint. As she grew older, however, she took an increasing interest in her religion, and she formed the view that the shalwar kameeze was not an acceptable form of dress for mature Muslim women in public places. In her brother's view the shalwar kameeze originated as a Pakistani cultural dress without any particular religious foundation, and she believed that the Islamic Shari'a required women over the age of 13 to cover their bodies completely, apart from their face and hands. The shalwar kameeze was not acceptable, because the white shirt (which at the School is covered by a jumper except in hot weather) revealed too much of the arms, and the skirt length (which at the School may extend to the mid-calf) should go down to the ankles.

15

At the start of the new school year in September 2002 she attended the School dressed in a jilbab. She was accompanied by her brother and another young man. They saw the assistant headteacher, Mr Moore, who told her to go away and change into proper school uniform. He felt that the young men were being unreasonable and threatening. The three then went away, with the young men saying that they were not prepared to compromise on this issue.

16

In his careful judgment ( [2004] EWHC 1389 (Admin)) the judge set out in great detail the subsequent history of events. Sadly, the parties rapidly reached an impasse, with the claimant refusing to attend school unless she was allowed to wear the jilbab, and the School refusing to allow her to attend unless she was wearing the shalwar kameeze. What was sadder still was that the attempts to provide her with some form of education while the impasse lasted did not bear any very fruitful results, and she lost the better part of two years' schooling. In September 2004, following the hearing before the judge, she was accepted by a different local school which permitted her to wear the jilbab.

17

If the claimant succeeded in her claim that her rights under Article 9 of the European Convention on Human Rights ("ECHR") were violated, a court would have had to hear contested evidence in relation to her claim for damages about the reasons why she did not avail herself of the educational opportunities the School maintained that it made available...

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