R (ex parte X) v Y School
Jurisdiction | England & Wales |
Judge | Mr Justice Silber |
Judgment Date | 21 February 2007 |
Neutral Citation | [2007] EWHC 298 (Admin) |
Docket Number | Case No: CO/10461/2006 |
Court | Queen's Bench Division (Administrative Court) |
Date | 21 February 2007 |
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Mr Justice Silber
Case No: CO/10461/2006
Dan Squires (instructed by Webster Dixon) for the Claimant
Peter Oldham (instructed by Stone King of Bath) for the Defendants
Hearing dates: 8 & 9 February 2007
Further written submissions were supplied on 13 and 15 February 2007
The Honourable
I. Introduction
A. The issue raised on this application is whether on the particular facts of this case a particular school was entitled as a matter of public law to refuse to allow a Muslim girl to wear at School the niqab veil, which is a veil which covers her entire face and head save for her eyes. This judgment is fact-sensitive and it does not concern or resolve the issue of whether the wearing of the niqab should be permitted in the schools of this country. That is not a question that a court could or should be asked to resolve. Nothing that appears in this judgment seeks to resolve or to throw any light on this problem or the circumstances in which a veil should be permitted to be worn in schools or any other arena in this country. Indeed it follows that nothing in this judgment is intended to be any comment on the traditions or the requirements of the religion of Islam.
B. It is necessary to stress first that my role on this application is limited and second that this is not an appeal on a question of fact. Indeed as was pointed out by Richards J (as he then was) in Bradley v The Jockey Club [2004] EWHC 2164 QB in passages which were expressly approved on appeal in that case by Lord Phillips MR. [2005] EWCA Civ 1056 [17] when giving the judgment of the Court of Appeal that:
(a) "37 … The function of the court is not to take the primary decision but to ensure that the primary decision-maker has operated within lawful limits…the essential concern should be with the lawfulness of the decision taken: whether the procedure was fair, whether there was any error of law, whether any exercise of judgment or discretion fell within the limits open to the decision maker, and so forth …" and
(b) "43. Of course, the issue in the present case is not one of procedural fairness but concerns the proportionality of the penalty imposed. To my mind, however, that underlines the importance of recognising that the court's role is supervisory rather than that of a primary decision-maker. The test of proportionality requires the striking of a balance between competing considerations. The application of the test in the context of penalty will not necessarily produce just one right answer: there is no single 'correct' decision. Different decision-makers may come up with different answers, all of them reached in an entirely proper application of the test. In the context of the European Convention on Human Rights it is recognised that, in determining whether an interference with fundamental rights is justified and, in particular, whether it is proportionate, the decision-maker has a discretionary area of judgment or margin of discretion. The decision is unlawful only if it falls outside the limits of that discretionary area of judgment. Another way of expressing it is that the decision is unlawful only if it falls outside the range of reasonable responses to the question of where a fair balance lies between the conflicting interests"
X, the claimant is a 12 year old Muslim girl who is a pupil at Y school ("the school") which is a selective all-girls grammar school. She entered her second year there in September 2006. By that time, the claimant had reached puberty and in line with her own genuinely held religious faith she wished to wear the niqab when she attended the school and while she was being taught by male teachers or likely to be seen by men. The three older sisters of the claimant A, B and C had previously attended the school and they wore the niqab.
The claimant and her parents were told by the head teacher of the school that she was not permitted to wear the niqab at school and since 6 October 2006 she has not attended the school. Since that time, the school has arranged for her to be provided with some tuition funded by the school but this is substantially less tuition than she would have received if she had attended the school The claimant has been offered a place at another selective entry girl's grammar school Q where she would be able to wear the niqab. This school Q has achieved results in public examinations, which are well above the average. The local authority will provide the claimant with transport to and from school Q and this journey from her home will take about 25 minutes. The claimant has not accepted this offer but neither the claimant nor her parents have explained what, if anything is wrong with this school Q other than that the claimant would prefer to stay at Y school.
In these proceedings, the claimant seeks to challenge the decision of the head teacher of the school not to allow her to attend the school wearing the niqab. At the outset of the hearing, I gave the claimant permission to proceed with the claim. Orders have been made under section 39 of the Children and Young Persons Act 1933 preventing the disclosure of among other things of the name of the claimant, her sisters or the school Y pending further order.
II. The Chronology
The claimant X has 3 older sisters who have been referred to as A, B and C and who all attended the school and who all wore the niqab during their time at the school. A attended the school between 1995 and 2002 and while B and C were pupils there respectively between 1997 and 2003 and between 1998 and 2004. Their evidence was that they wore niqabs at the Y school without complaint after they reached puberty but of course they had left before X started at the school in 2005.
While the claimant's three sisters were at the Y school, they only wore the niqab when they had a male teacher and at least one of the claimant's sisters also wore a specially adapted veil for science and physical education classes as well as for design and technology classes in order to ensure they could participate safely and fully in those classes. The evidence shows that each of the claimant's three sisters did well while at the school and that they fully participated in the activities of the school. All of them are now embarking on interesting careers or are still studying.
The claimant was successful in obtaining a place at the school which selects its pupils after a competitive entry system and she started attending there in September 2005. During her first year at the school, the claimant contends that she wore the niqab occasionally to the School in her first year but the evidence from the defendants is that she only wore it once for a school photograph without any of the school's staff noticing it and then she took it off immediately afterwards. It is common ground in the light of the decision in R v Camden LBC ex parte Cran (1995) 94 LGR 8, 12 that the proper approach for me to adopt where there is disagreement on evidence is that I should accept the evidence of the defendants; that means that I should hold that the claimant only wore the niqab on that one occasion in her first year and then only for a limited period for the school photograph.
As I have explained by the time when the claimant started her second year at the school on 7 September 2006, she had entered puberty and she then chose to wear the niqab on a permanent basis. She and her family had clearly and genuinely assumed that the claimant like her sisters would be permitted to wear it. The claimant's evidence is that prior to September 2006 no indication had been given to her or the family that this would not be the case or that there had been any change of policy of the school towards wearing a niqab at school.
Shortly after the start of the new term in September 2006, the claimant was called to speak to her head of year and she was then asked why she was wearing the niqab. The claimant explained that she was surprised to be asked why she wore the niqab as the teacher, who was questioning her, had taught her sisters and so she would have been aware of the reasons why Muslim women wear niqabs. According to the claimant, when she explained that she wore it for religious reasons, she was told, as was the case, that the large number of other Muslim girls at the school did not wear the niqab. The claimant said that she then explained that there is a difference of opinion and that some Muslims follow the opinion that it is not a central part of their faith to wear a niqab while she, that is the claimant, felt it was compulsory to wear the niqab. So the claimant had stated that it was for that reason that she choose to wear the niqab.
After that meeting the head teacher of the school wrote to the claimant's parents on 14 September 2006. The letter stated that:
"…Since [the claimant] returned to school last week, she has been covering her face in certain circumstances. I regret to have to tell you this does not conform to our school uniform policy. Please note we are also discouraging the wearing of a floor-length skirt.
Our school uniform policy makes it possible for Muslim girls that adhere to the requirements of their faith. We follow the Guidance Notes for Buckinghamshire Schools… This document was drawn up in full consultation with leaders of all faiths and has their backing.
I...
To continue reading
Request your trial-
R (Watkins-Singh) v Governing Body of Aberdare Girls' High School
...v Head Teacher and Governors of Denbigh High School [2007] 1 AC 100—“Begum”), the wearing of the Niqab veil ( R (on the application of X v Head Teacher and Governors of Y School [2008] 2 All E.R. 249 —“ X v Y”) and a Silver Ring Thing purity ring ( R (on the application of Playfoot) v Gove......
-
R (Playfoot) (A Child) v Millais School Governing Body
...37 I note that the first and second of these functions are in similar terms to those upheld as legitimate and proportionate in the Y School case at paras 73–76. Further all four functions form part of the recommendations to Schools when setting their uniform and appearance policies (see dra......
-
Mr R Sethi v Elements Personnel Services Ltd: 2300234/2018
...uniform that had been held in other cases to have been lawfully prohibited (niqab in R (X) v Headteacher and Governors of Y School [2007] EWHC 298 (Admin) and jihab in R (Begum) v Denbigh High School Governors [2006] UKHL 15, [2007] 1 AC 48. We find that the Respondent’s Dress Code Policy, ......
-
R (S) v a
...School [2006] UKHL 15, another House of Lords case, relied upon by the defendant; and two first instance cases, R (X) v Y School [2007] EWHC 298 (Admin) and R (Playfoot) v Governing Body of Millais School [2007] EWHC 1698 (Admin) which are both relied upon by the defendant. 5 I do not propo......
-
Notes
...Press, 2008) [Razack]. 51 R (on the application of X) v Head Teacher and Governors of Y School , [2007] EWHC 298 at para 64(l), [2008] 1 All ER 249 [ X v Y School ]. 52 Ibid . Similar arguments were made in R (on the application of Begum) v Head-teacher and Governors of Denbigh High School ......
-
Accommodating Religious Beliefs: Harm, Clothing or Symbols, and Refusals to Serve Others
...religious clothing in the street).97 Resolution 1743 (2010) at [16] (adopted unanimously on 23 June 2010).98 See XvY School and Ors [2007] EWHC 298 (Admin) (pupil not allowed to cover her face);‘Quebec Muslim woman ordered to unveil or leave French course’ The Globe and Mail 11 AprilRobert ......
-
Criminalisation of the Burqa in the UK
...(Ashgate: Aldershot, 2009).5. [2007] 1 AC 100. See also R (On the Application of X) vHead Teacher and Governors of Y School [2008] 1 All ER 249 andAzmi vKirklees MBC [2007] IRLR 484.Idriss The French criminal modelThe proposal to ban the burqa in the UK finds its origins in France when, in ......
-
Banning Islamic veils
...Governors of Denbigh High School [2006]UKHL 15 (HL), para. 18.14. R (on the application of X) v Head Teacher and Governors of Y School [2008] 1 All ER 249,para 64.15. Dahlab v Switzerland App. No. 42393/98, 15 February 2001, 13. The children in this casewere between four and eight years old......