Neutral Citation no. (2002) NIQB 38
Ref:     
WEAF 3513

 
Judgment: approved by the Court for handing down
Delivered:
22.10.01
(subject to editorial corrections)

 

 
IN THE HIGH COURT OF JUSTICE IN NORTHERN IRELAND
 
 ________ 
 
QUEEN’S BENCH DIVISION (CROWN SIDE)
 
 _________ 
 
IN THE MATTER OF AN APPLICATION BY CH (A MINOR) BY HIS FATHER AND NEXT FRIEND EH FOR JUDICIAL REVIEW
 
 ________ 
 
WEATHERUP J
 
1                    The Application
 
            This is an application for judicial review of -  
(1)        The decision of the Board of Governors (“the governors”) of Rathmore Grammar School, Belfast (“Rathmore”) dated 1 June 2001 to refuse the applicant a place in the first form of Rathmore commencing in September 2001.
(2)        The decision of the School Admission Appeals Tribunal (“the Tribunal”) of the Belfast Education and Library Board (“the Board”) dated 6 August 2001 to dismiss the appeal against the decision of the governors.
(3)               The decisions of the Department of Education for Northern Ireland (“the Department”) dated 22 August 2001 and 8 October 2001 not to increase the school’s admissions number for Rathmore for the school year commencing September 2001, and the failure of the Department to issue directions to Rathmore on the meaning of “family” in Rathmore’s admission criteria. 
2.         The Background.
The applicant was born on 30 August 1989 to Carol and EH and he was the first child of that marriage.  The applicant’s mother had a daughter Nicola by a previous marriage.  Nicola lived with her mother and step-father and had been brought up as a Protestant and attended Hunter House Grammar School, Belfast.  The applicant had a younger sister Rachel and she and the applicant had been brought up as Catholic. At the heart of this application, as far as the applicant is concerned, is the claim that he should have been treated as the eldest child in the family and therefore awarded a place at Rathmore in accordance with the school’s admissions criteria.
            The applicant sat the “11 plus examination” in November 2000 as part of the process of transferring from primary school to secondary school in September 2001.  In February 2001 the applicant was notified by the Board that he had attained an “A” grade in the examination.  The Transfer Report Form was completed by the applicant’s parents who selected Rathmore as their first preference for the applicant’s further education.  On 1 June 2001 the applicant was notified that he had not been allocated a place by the governors at Rathmore.  An appeal was lodged against the governor’s decision and by letter dated 7 August 2001 the Tribunal notified the applicant that the appeal had been dismissed.  The applicant secured a place at Our Lady and St Patrick’s Grammar School which is in a different Education and Library Board area.
3.         The Legislation
            The statutory framework in relation to transfers from primary school to secondary school is contained in the Education (Northern Ireland) Order 1997.  Under Article 9 of the 1997 Order every Education Board is required to make arrangements for the parent of a child resident in the area of the Board –
“(a)      to express (in order of preference) his preferences as to the school at which he wishes education to be provided for his child; and
 
(b)       to  give reasons for his preferences.”
 
            By Article 10(2) it is provided that the Governors of a school shall not admit to the school in any school year a number of children which exceeds the school’s admissions number for that school year.  By Article 12(2) it is provided that the admissions number applying to a school for any school year shall be determined by the Department and by Article 12(3)  the Department may at any time vary a school’s admissions number for a school year.  By Article 14(2) it is provided that in any case where the applications for admission to a grammar school exceed the admissions number of the school the governors shall apply the criteria drawn up under Article 16(1) to determine those applicants who should be admitted or refused admission to the school.  Article 16 provides for the drawing up of admissions criteria by the governors of the school and for the introduction of regulations as to matters to be included in the criteria.  The relevant regulations are the Secondary Schools (Admissions Criteria) Regulations (Northern Ireland) 1997,which Regulations include the provision that admissions are determined by reference to the grades which are awarded to children in the qualifying test.  The grades are, in descending order, A, B1, B2, C1, C2 and D with priority given to the higher grades.  An appeals procedure from the decision of the school to the Tribunal is provided by Article 15 of the 1997 Order.
4.         The Admission Criteria.
            Rathmore has drawn up admission criteria for entry of pupils to Form 1 in September 2001 that provide as follows:
“When the number of applicants exceeds the approved admissions number, the Board(of governors), in considering applicants who have been allocated the same grade, will, on the basis of the information provided on the Form or attached to the Form, give preference to the following groups, in the order set out hereunder, in selecting applicants with that grade who have satisfied the terms of Paragraphs 1,2 and 3 above;
 
Applicants;
 
(i)        whose brother or sister is a present or past pupil of the School;
 
(ii)       whose parent is a member of the permanent teaching, administrative, technical or ancillary staff of the School or is due to take up such an appointment;
 
(iii)      whose parent in a past pupil of the School or of the former Lisburn Convent Grammar School;
 
(iv)      whose brother or sister has already been selected;
 
(v)       who are the eldest or the only child in a family;
 
(vi)      who are the first child in a family to have been allocated grade A or its equivalent, or, in the case of children with other grades, the first to have been allocated the grade as high as the particular grade allocated or its equivalent;
 
(vii)     who have one of the following family relationships with a present or past pupil of the School or of the former Lisburn Convent Grammar School or with a member of the School staff as defined in (ii) above; grandchild, nephew or niece, grandnephew or grandniece and first cousin.
 
If, on applying some criteria (i) to (vii) above, it becomes necessary to differentiate between applicants, then the final available place(s) will be awarded by lot.
 
NB.     Applicants are considered as belonging only to one group, viz. the first group (i) to (vii) into which they fall.”

5.         The Transfer Process.
 
            The applicant’s parents met with primary school staff and completed a  Transfer Report Form.
Section C of the Form states:
“Parents’ Remarks/Reasons for preference including factors relating to schools’ admissions criteria (eg. is the child the eldest child or the eldest boy/girl in the family or an only child – please specify below); special circumstances (if any).  Continue on a separate sheet if necessary.”
 
The Form completed by the parents did not include any particulars on the status of the applicant within the family and accordingly the school governors, when applying the admissions criteria to the applicant, had no information which would have led them to believe that the applicant should be treated as the eldest child in the family. On appeal the Tribunal was made aware of the family circumstances and the applicant’s claim to be treated as the eldest child of the family but the Tribunal acted on the basis of the information available to the governors and rejected the appeal.
            The school’s admissions number was 180.  The school received applications from 186 children with grade A, and with one special circumstances application being upgraded to A the total number of grade A applicants was 187.  By applying criterion (i) 85 children were admitted.  By applying criterion (ii) no children were admitted so the total admissions were 85.  By applying criterion (iii) 10 children were admitted so the total admissions were 95.  By applying criterion (iv) no children were admitted so the total admissions were 95.  By applying criterion (v) 68 children were admitted so the total admissions were 163. It will be noted that had the applicant been treated as the eldest child in the family he would have gained admission at this stage.  By applying criterion (vi) 17 children were admitted so the total admissions were 180.  At this stage the school’s admissions number of 180 had been filled.  One child satisfied criterion (vii) but could not be admitted.  Six children with grade A satisfied none of the criteria and could not be admitted.  It is apparent that the governors placed the applicant in this last category.
6.         The Applicant’s Grounds.  
            Mr O’Hara QC who appeared with Miss Askin for the applicant proceeded on four grounds of challenge.  First, that criterion (v) is unlawful for uncertainty because it is imprecise and ambiguous as to the meaning of “family”.  Secondly, that criterion (v) and criterion (i) are discriminatory on the ground of religion.  Thirdly, that the content of the Transfer Report Form is not a proper exercise of the powers of the Board or the Department.  Fourthly, that the Department acted unlawfully (a) in failing to issue directions under Article 101 of the Education and Libraries (Northern Ireland) 1986 as to the meaning of “family” in the school’s criteria, and (b) in failing to increase the school’s admissions number under Article 12(3) of the Education (Northern Ireland) Order 1997.
7.         Uncertain Criteria.
            In the first place the applicant claims that criterion (v) is unlawful for uncertainty because it is not drafted in a manner that is precise and unambiguous as to the meaning of ”family”.  It is not clear from reading  criterion (v) whether, in its application to the H family, the eldest child of the family is Nicola or whether the applicant could be treated as the eldest child of the family.  This issue about “family” would also apply to criterion (vi).          In addition, the applicant claims that there is an obligation on Rathmore, in drawing up the criteria, to provide information to parents about the meaning to be attributed to “family”.
            As to the test for a challenge to the meaning of a criterion in these circumstances Mr McCloskey QC, who appeared with Mr Fitzpatrick for Rathmore, asserted that the test was not one of precision but of Wednesbury unreasonableness i.e. whether the meaning attributed to the criterion was within the range of reasonable meanings. My approach to this matter is as follows- 
(i)        Precision is not the test of lawfulness in the interpretation of a criterion.  While precision is desirable its absence is not fatal although there may be cases where the criterion fails as being incapable of meaning.  Cunningham’s Application (unreported 25 August 1995).
(ii)       Wednesbury unreasonableness is not the test of unlawfulness in the interpretation of a criterion.  In Farran’s Application (1990) 6 NIJB 72 the Court of Appeal rejected the application of the reasonableness test to the interpretation of admissions criteria by a Tribunal because the task imposed on the Tribunal was to decide whether the criteria were “correctly applied” by the school (this remains the function of the Tribunal under Article 15(4) of the Education (NI) Order 1997).  
(iii)            As the Tribunal has to determine the correct application of the criteria ,and as the Court has to ascertain the correct meaning in order to determine if the Tribunal has carried out its task, the school must correctly apply the criteria in the first place.  This requires that the meaning of the relevant criterion be determined by the school and on appeal by the Tribunal and on Judicial Review by the Court.
In the event the governors did not address the issue as to the meaning of “family” as used in the criteria.  It was not necessary for the governors to do so because they had no information which called for a determination as to whether the applicant satisfied criterion (v).  However it appears from the affidavit of Sister Ursula Canavan, the Principal of Rathmore, that if the  governors had been informed of the applicant’s position as the eldest child of the family then he would have been admitted to the school.  Accordingly it is apparent that Rathmore’s interpretation of “family” in criterion (v) corresponds with the applicant’s interpretation and that, in the circumstances of the H family, the applicant would have been treated as the eldest child of the family had Rathmore been made aware of the relevant facts.  
            The applicant then claims that there was an obligation on the school to provide information to the parents about the meaning of “family” as used in the criteria.  However if there is doubt in parents minds about the meaning of any of the criteria then the first step must be to raise that doubt with the school.  In advance of the completion of the Transfer Report Form the parents had notice of the criteria and had the opportunity to attend an open night where Sister Ursula addressed the parents about the criteria and in her affidavit she states-
“It was stressed at this point that if anyone had any queries in relation to applications to the School or if anyone wished to seek advice or clarification at any point that myself and my Vice-Principals were available to answer queries on any aspect of the transfer procedure”.
 
The parents did not seek any clarification. 
 
I find that criteria (v) is not unlawful and that it has been interpreted by Rathmore and the parents as applying to the applicant and that in the absence of any request for clarification there was no obligation on Rathmore to furnish any particulars as to the meaning of  “family”.
8.         Religious Discrimination
The applicant’s second ground is that criterion (i) and criterion (v) are unlawful as being discriminatory on the ground of religion.  It is claimed that because the applicant’s older step -sister is Protestant any treatment of all three children as one family, in the application of the criteria, must have an adverse impact on any younger child who is Catholic.  In its application to the applicant this argument proceeds on the false premise that if the three children are treated as being part of one family it follows, for the purposes of the criteria, that the applicant would not be the eldest child. In the event Rathmore accepts that the applicant would be treated as the eldest child of the family. On this basis alone I find that this argument cannot succeed in this case.   
In general this discrimination argument may not succeed in the case of a family where there are children of two marriages because it would not be the religious upbringing of the respective children which would determine the admission to the school of someone in the applicant’s position.  Discrimination involves differential treatment, on a prohibited ground, between persons in similar situations. There must be some nexus between the treatment complained of and the alleged discriminatory effect on the complainant, which nexus relates to the prohibited ground. That nexus is not established merely because the intake of the particular school is almost exclusively that of one particular religious denomination. I have assumed, without deciding, that Article 14 of the European Convention on Human Rights extends to indirect discrimination.
I find that there has not been religious discrimination in the adoption and application of the criteria.
9.         The Transfer Report Form
The applicant’s third ground relates to the contents of the Transfer Report Form. The Department devised the Form.  It is submitted that the Form has been designed to enable the Board to comply with Article 9 of the 1997 Order so as to allow the parents to express their preferences and the reasons for preferences and that such matters are concerned with the philosophy and aims of the preferred school.  Accordingly, it is submitted that the Form does not admit of a response to the criteria applicable for admission to each school. 
It is apparent from the passage quoted above from Section C of the Form that it invites the parents to specify the factors relating to schools admission criteria and to continue on a separate sheet if necessary.  The parents have the opportunity to address such of the schools admission criteria as are considered to be applicable in each case.  
            Further the parents were aware that it was vital to include in the Form any information that was to be taken into account by the governors in applying the admission criteria to the applicant. 
·        The parents received “A Guide for Parents” from the Department in which it was pointed out that in listing schools in order of preference any additional information should be provided which would be helpful to the secondary school in considering the child’s application. 
·        “Advice to Parents” was issued by the Department that exhorted parents to provide information on the Form which schools could use to consider the child’s application against the school’s criteria and in particular it stated –
“You must ensure that all relevant information is included on the Transfer Report Form (or attached to it) to allow the school to consider the application.  If you do not provide the information you may reduce the chance of your child being admitted to a school of your preference.
 
You will be asked to sign the Transfer Report Form.  You alone are responsible for ensuring that the information is correct and that all relevant information is recorded and attached.”
 
•	There was the open night when this requirement was repeated to the parents. 
•	Rathmore’s published admission criteria set out in bold capitals- 
All relevant information to enable the Board to apply the admissions criteria must be included on or attached to the form.
And then in bold print- 
“To enable parents to ensure that no relevant information from the Form is omitted the Board has compiled an Admissions Criteria Checklist to assist them in the completion of the Form.  It is strongly recommended that they use this checklist which is available from the School”.  
 
·        The Admissions Criteria Checklist 2001 commenced with a notice to parents –
“To enable you to ensure that no relevant information is omitted from your child’s Transfer Report Form the Board of Governors has compiled this checklist to assist you in the completion of the Form.”
 
Among other matters the checklist highlights that the child may be the eldest child of the family.
            Despite all these warnings the Form completed by the parents did not record that the applicant was the eldest child in the family or was to be treated as the eldest child in the family.  At paragraph 4 of his affidavit the applicant’s father states that at the meeting with primary school staff for the completion of the Form the applicant’s status as the eldest in the family was explained to staff but the teacher concerned did not put the information on the Form and stated that he was confident that the applicant would be admitted in any event.  In a letter from the teacher to the Department dated 3 September 2001 it is stated that the Form was completed to the mother’s satisfaction and at a later meeting with the applicant’s parents there was no suggestion that the Form had been incomplete or that the parents had been wrongly advised by the primary school.  In any event ultimate responsibility for furnishing all relevant information and signing the Form rests not with the school but with the parents.
This attack on the Form leads the applicant to the further submission that the inadequacies of the Form were such that the Tribunal hearing the appeal ought to have dealt with the appeal on the basis of the additional facts available to the Tribunal. Reliance is placed on the judgment of Girvan J. in Cunningham’s Application at page 11 to ground the proposition that new information may be introduced to a Tribunal where there is lack of clarity in the criteria.
There are two stages to an appeal hearing. In the first place an appeal to a Tribunal proceeds on the narrow statutory grounds that the school’s criteria were not applied or were not correctly applied in refusing admission to the child (Article 15(4) of the 1997 Order). This requires the Tribunal to consider the matter by way of a review of the school’s approach and on the basis of the information available to the school. Secondly, if the Tribunal decides that the criteria were not applied or not correctly applied, but the child would have been refused admission to the school in any event, the Tribunal will dismiss the appeal (Article15 (4) of the 1997 Order). It was in considering this second issue that Girvan J. stated that the Tribunal may take into account the absence of clarity in the criteria which may have led the parents not to provide information they might otherwise have provided, as it would be unfair to drawn adverse inferences about refusal of admission of the child in that event. This does not support the applicant’s submission that the Tribunal should have acted on the new information about the applicant’s status as the eldest child of the family.
I find that the Form was not inadequate and that, in the circumstances of the present case, the Tribunal was not entitled to receive new information about the applicant’s status in considering whether the admission criteria were not applied or were not correctly applied by the governors.
10.              The Department’s Powers.
 
The applicant’s fourth ground concerns the powers of the Department to issue directions and to increase the school’s admissions number. Article 101 of the Education and Libraries (Northern Ireland) Order 1986 (as substituted by Article 158 of the Education Reform Northern Ireland) Order 1989) provides that the Department may issue directions to schools. The applicant submits that the Department’s failure to issue directions as to the meaning of “family” was irrational. Mr. Maguire, who appeared for the Department, rejected this approach as involving a policing role for the Department over school’s criteria, which criteria, he submitted, were matters for schools and Tribunals and particularly so in the present case where the Department did not have notice of the issue about “family” until the commencement of proceedings in this case.  I accept that the interpretation of criteria is a matter for schools and Tribunals and that in the absence of notice about an issue the Department could not be expected to consider the issue. Even with notice this is not an area where the Department might be expected to intervene unless the issue presented a general difficulty in overall administration. Accordingly the Department’s failure to issue directions could not be regarded as irrational.
Article 12(3) of the 1997 Order provides that the Department may increase a school’s admissions number and the applicant submits that the decision of the Department not to increase Rathmore’s admissions number, to enable the applicant to be admitted, was irrational. There was an informal approach to the Department on 22 August 2001 that met with a negative response and resulted in Rathmore not making a formal application for an increase in the school’s admissions number to accommodate the applicant. This approach, as Mr. Maguire contends, was overtaken by a review of Rathmore’s admissions number in the light of the present proceedings and in respect of which Dr Mark Browne of the Department avers in his affidavit of 10 October 2001 that the Department has decided not to increase the admissions number( referred to as the decision of 10 October 2001).  
            The applicant submits that in making the decision of 10 October 2001 the Department’s decision was irrational and further that it did not take into account all relevant considerations, including the meaning of “family” in the criteria.  In Dr Browne’s first affidavit he refers to “taking account of all the circumstances as evidenced in the totality of the affidavit evidence before the court” which would include taking into account the meaning of family.  He does not repeat that formula in his second affidavit which sets out the reasons for the Department’s decision not to increase the admission number but, as the Department’s reasons include the failure to set out the relevant information about the applicant’s family in the Form, this must necessarily have involved the Department in taking into account the matter of “family”. Further, the Department accepts that it will consider an increase in the school’s admission number where a child has lost an appeal to a Tribunal but, in the present case, has decided that it would be inappropriate to make such an increase where the information about the applicant’s status was known to the parents and could have been included on the Form. 
I find that the Department did not fail to take account of any relevant consideration and I do not consider the Department’s reason for refusing to increase the admissions number to be irrational.
            Accordingly I am not satisfied that the applicant has established any of the grounds upon which reliance was placed in this application.
11.       Respondent’s Additional Matters
            There were three additional matters that were debated during the hearing.  First there is the question of the appropriate remedy in the event of a Court being satisfied that any criterion is unlawful.  Miss Gibson, who appeared for the Board and the Tribunal, submitted that if any criterion was unlawful the matter should be remitted to the governors for reconsideration in the light of the Court’s finding.  In Anderson’s Application (Unreported 26 August 2001 and on appeal to the Court of Appeal) I was dissatisfied with the prospect of a remedy involving a reference back to governors as they have no power to increase the school’s admissions number. I concluded that, had the criterion been unlawful, it would have been appropriate to remit the matter to the Tribunal.  That would have involved the Tribunal making a determination as to whether the applicant would have been refused admission to the school in any event by reference to the next valid criterion which was based on age. The relevant data about dates of birth were available to the tribunal.  However in the present case the next valid criterion would be admission by lot and that would not be a matter which the Tribunal would have power to determine Accordingly if it had been held that the criterion was unlawful it would be necessary to refer the matter back to the governors to apply the next criterion of admission by lot.  This would be to no avail because the governors would have no power to increase the admission number and the Tribunal would have no power to set aside the governors determination by lot (on the assumption that they had correctly applied the criterion).  Of course in remitting the matter to the governors no direction would have been given to the governors by the Court which would have had had the effect of changing the status of any child who had been admitted to Rathmore under the original application of the criteria.  So this is a case where the difficulties of finding an effective remedy would have remained had there been a finding that criterion (v) was unlawful.
            Further, there was a related debate as to whether the Tribunal had power to intervene in a case where the parents and the governors proceeded to apply the criteria on the basis of a mutual mistake in relation to the particulars of the child which resulted in the child being refused admission where, on the correct facts, the child ought to have gained admission.  I reserve to a case where the necessary factual foundation has been established ,the question as to whether a Tribunal could conclude that, in those circumstances, the governors had not correctly applied the school’s admission criteria.
The second matter is the question of delay.  The Respondents referred to the publication of the criteria at the beginning of 2001, at which time, they submitted, this application ought to have been made. The applicant refers to the tribunal decision of 7 August 2001 as being the relevant date to begin to consider the commencement of proceedings.  The Respondents contend that it was not necessary for the applicant to await the outcome of the appeal to the tribunal before commencing proceedings.  In Anderson’s Application I adopted the position that applicants are justified in pursuing appeals to the Tribunal before launching applications for judicial review and I remain of that view.  Accordingly I would not have been prepared to refuse relief on the grounds of delay in the present case.
            Thirdly, the Respondents submit that this applicant does not have standing to make this application and that the appropriate applicant should be a parent.  This approach is based on the judgment of Kennedy LJ in the decision of the Court of Appeal in England in Re JC (unreported 31 July 2000).  In Anderson’s Application I adopted the position that a child does have sufficient interest to apply on his or her own behalf and that it was a matter for further consideration by the Legal Aid Department in the light of the remarks of the members of the Court of Appeal in England as to whether they would grant legal aid to a child in a particular case and I remain of that view.
            The application is dismissed with no order for costs save for the legal aid taxation of the applicant’s costs.
 
IN THE HIGH COURT OF JUSTICE IN NORTHERN IRELAND
 
 ________ 
 
QUEEN’S BENCH DIVISION (CROWN SIDE)
 
 _________ 
 
IN THE MATTER OF AN APPLICATION BY CH (A MINOR) BY HIS FATHER AND NEXT FRIEND EH FOR JUDICIAL REVIEW
 
 ________ 
 
J U D G M E N T
O F
WEATHERUP J
 ________