Rights of excusal from relationships and sexuality education

Clíodhna Kelleher considers a recent High Court judgment that there was no parental right to withdraw children from relationships and sexuality education.

Shortly before Christmas judgment was handed down in R (Isherwood and ors) v Welsh Ministers [2022] EWHC 3331 (Admin). The case concerned the existence or otherwise of a parental right to withdraw children from mandatory relationships and sexuality education (“RSE”) introduced in Wales by the Curriculum and Assessment (Wales) Act 2021. The claimants had previously unsuccessfully sought an injunction to prevent the roll-out of the policy in Wales. At the substantive hearing, the claimant-parents advanced wide-ranging arguments against the legality of guidance documents issued under the 2021 Act, including:

• The existence of a common law right of “excusal” (i.e., a right to withdraw their children from lessons) such that statements in the relevant guidance to the effect that the right of excusal had been removed were wrong in law;
• The statutory right of excusal under the Education Act 1996 had not been appropriately abrogated by the 2021 Act;
• The absence of a right of excusal constituted a breach of Article 2 Protocol 1 of the European Convention on Human Rights (“ECHR”) (“A2P1”);
• The relevant guidance was in breach of Article 9 ECHR.

The claim was dismissed on all grounds. Steyn J rejected the existence of a common law right of excusal and found that the statutory right of excusal in section 405 of the Education Act 1996 had been abrogated by the 2021 Act. She further determined that the claim in relation to A2P1 was misdirected, aimed as it was at the guidance issued under the 2021 Act and not to the Act itself, and agreed in any event with the Defendant’s submission that the guidance did not constitute a breach of A2P1. The claim relating to Article 9 ECHR was rejected on the basis that A2P1 constituted lex specialis in respect of the issues raised in the claim, and that no separate issues arose under Article 9.

The judgment provides a comprehensive overview of the ECtHR’s approach to the interpretation of A2P1 in the context of parental philosophies and convictions ([169] – [195]), culminating in a succinct 10-point articulation of the primary principles by Steyn J at [198] that will, no doubt, prove indispensable to practitioners confronting similar issues in the future.

The judgment also contains an extensive articulation of the history of compulsory education, which may be of interest to those with an eye for legal history and the shifting sociology of education and gender relations, including consideration of the infamous 1833 case of Agar-Ellis, in which the Court of Appeal determined that there could be no question of any conflict of rights between a husband and wife as to the education of children given the husband’s position as “master of his own house, as king and ruler of his own family”. Unsurprisingly, the claimants’ contention that Agar-Ellis stood for the principle that a parent had a right on par with the right to life, liberty and property to educate his or her children was received unsympathetically by the Court (at [109]).

Clíodhna Kelleher is a barrister at Monckton Chambers.