The King (on the application of TTT, by her mother and litigation friend UUU) v Michaela Community Schools Trust

Hearing dates: 16 and 17 January 2024

Approved Judgment

This judgment was handed down remotely at 10.45am on 16 April 2024 by circulation to the parties or their representatives by e-mail and by release to the National Archives.

Contents

INTRODUCTION

The Defendant (“the School”) is a secular secondary free school for girls and boys located in Wembley, in the London Borough of Brent. It has around 700 pupils who are from diverse ethnic and religious backgrounds although half, including the Claimant, are Muslims.

The School is exceptionally academically successful and it attributes this success to its distinctive approach to the provision of education. This includes a very high level of control over the behaviour of the pupils, underpinned by a strict approach to discipline; and an ethos which encourages pupils to see themselves as part of a team. The “Team ethos” of the School means that the interests of the school community take precedence over the needs of the individual. It also involves, using the Headteacher's word, “aggressively” promoting integration between pupils from different faiths, cultures and ethnic backgrounds whilst they are at school as well as minimising social distinctions between them.

The principal challenge in this Claim is to the decision of the governing body of the School to prohibit its pupils from performing prayer rituals on its premises (“the prayer ritual policy”, or “PRP”). That decision was taken on 23 May 2023, after the Headteacher had introduced the PRP as an interim measure on 27 March 2023. Whilst the PRP applies to all prayer rituals, regardless of religion, there is no evidence that pupils at the School of any religion other than Islam wish to perform prayer rituals during the school day.

The Claimant's objection to the PRP is a narrow one. Muslims are required to pray five times a day but, with one exception, she accepts that the requirements of the school day mean that she will not always be able to fulfil this obligation during the appropriate period of time. That exception is the Duhr or Zuhr prayer, which is required to be undertaken in a window of time from when the sun passes its highest point in the day to the opening of the window for the next of the five prayers: the Asr prayer. During the autumn/winter months the window for performing Duhr overlaps with the School lunch break. The Claimant wishes, during 25 minutes of this break which she characterises as “free time”, to perform Duhr.

The Claimant argues that the School's refusal to permit her to do this is a breach of her right to freedom to manifest her religious beliefs, which is protected under Article 9 of the European Convention on Human Rights (“ECHR”) (“Ground 1”). She also says that the PRP indirectly discriminates against Muslim pupils, contrary to sections 85(2)(d) and/or (f) of the Equality Act 2010 (“the 2010 Act”), read with section 19 (“Ground 2”). And she says that, in introducing the PRP, the School failed to have “due regard” to the need to eliminate discrimination, to advance equality of opportunity and to foster good relations between Muslims and non-Muslims, contrary to the public sector equality duty (“PSED”) under section 149 of the 2010 Act (“Ground 3”).

Fourthly, the Claimant was also subject to a two day fixed term exclusion (“FTE”) on 23 March 2023 and a five day FTE on 28 April 2023. Each FTE was followed by an equal number of days of “referral”, or isolation. She contends that these FTEs were procedurally unfair in that she was not given an opportunity to respond to what was alleged against her before the decisions were made by the Headteacher (“Grounds 4(a) and (b)”).

The School's case is that the PRP does not “interfere” with the Claimant's freedom to manifest her religion or belief for the purposes of Article 9 ECHR. Nor does it subject her to a “detriment” for the purposes of section 85(2)(f) of the 2010 Act. Islam permits the Claimant to make up for missing Duhr by performing Qada prayers later in the day and, even if this were not so, she chose a secular school which she knew to have a strict behavioural regime and she is free to transfer to a school which would permit her to pray if she wishes to do so. The School argues that any interference with the Claimant's religious freedom is in any event justified, as is any indirectly discriminatory effect of the PRP itself, principally because the performance of ritual prayer would conflict with the School's ethos and its behavioural rules, and because the practicalities of pupils doing so mean that it cannot be accommodated by the School.

As for Grounds 3 and 4, the School says that it did have “due regard” to the required considerations under section 149 of the 2010 Act when the PRP was introduced. The allegation of breach of the PSED is therefore denied. Moreover, there was no breach of the duty to act fairly in the decision making which led to the FTEs of which the Claimant complains. In relation to these Grounds of challenge, the School also contends, in the alternative, that it is highly likely that the outcome would not have been substantially different had a compliant approach been adopted. Relief should therefore be refused pursuant to section 31(2A) of the Senior Courts Act 1981.

THE PROCEEDINGS

Permission

Proceedings were issued on 19 May 2023, and permission to bring the Claim was given by Lang J on the papers on 4 July 2023.

The evidence

The substantive evidence on which the Claimant relies is contained in witness statements which she made on 19 May 2023 and 13 October 2023, as well as statements made by: her mother on 19 May 2023; Ms Huda Osman of the Islamophobia Response Unit, dated 19 May 2023; and Ms Kowser Hassan, a former sixth former at the School, dated 12 October 2023. With the permission of Lang J, the Claimant also relied on a report by Professor Mona Siddiqui OBE dated 9 June 2023. She is Professor of Islamic and Interreligious Studies Assistant Principal for Religion and Society at the University of Edinburgh, and her report gives an account of the doctrines of Islam in relation to prayer, focussing largely on Sunni Islam.

The School relied on witness statements from its Headteacher, Ms Katharine Birbalsingh, dated 22 May, 23 August, 29 September and 4 December 2023. There was no witness statement from any member of the Governing Body.

The School also applied to admit a witness statement made by Mr A, a teacher at...