| SPOTLIGHT |
Richard Collier considers an unusual, complicated and interesting case which confronts the delicate conflict between religious belief and inclusive secular education.
Earlier this year HHJ Lethem handed down judgment in Montague v The Governing Body of Heavers Farm Primary School, a case that generated a good deal of press coverage. The judgment, which, albeit long, is commendable in its balanced approach and detailed reasoning.
Background
The three claimants comprise a Christian family; the Second and Third Claimants are mother and father respectively of the First Claimant. Between September 2017 and October 2018 the First Claimant, who was 4 years old at the time, attended Heavers Farm primary school (“the School”) as a reception student. This is a non-faith school serving an ethnically, religiously and socially diverse pupil body.
In mid-2018 the School arranged a number of activities to coincide with ‘Pride Month’ in June. This formed part of a broader programme throughout the year to encourage tolerance and inclusion, addressing the spiritual, moral, cultural, mental and physical development of the pupils (“SMSC”). The topics and activities grouped around the notion that there was ‘no hierarchy of equalities’ and addressed diversity in all its manifestations including black history, disability awareness, mindfulness and mental health, women’s history, and the environment.
The curriculum for the material time period in June 2018 included drawing posters of pupils’ families and rainbow posters to reflect a wide range of colours getting on and being friends. One of the posters contained the message “some people are gay, get over it!” and another depicted about ten family situations along the lines of “Mum+Dad= love, Aunt+Uncle= Love, Mum+Mum= Love, Dad+Dad= Love”. At other times of the year there had been posters relating to topics like black history, suffragettes and disability, coordinating with the SMSC teaching in each half term. The children were read to from “The Family Book” by Todd Parr which addresses diverse family structures and on one page acknowledges that same sex families exist.
There was intended to be a “Pride March” to celebrate the diversity of the School in June 2018, however this was controversial – some parents protested and there were discussions at the school gates in which the staff were called child abusers, that the school were teaching ‘bum sex’ and that homosexuals should be killed or locked up – and it was renamed the “Proud to be Me Parade” (“the Parade”). Pupils were encouraged to make placards for the Parade, focused on the children’s families and what they felt proud about, and the First Claimant made a placard saying he was proud of going to church and playing with his cousins. During the Parade the pupils were encouraged to wear bright colours and sang three songs: ‘True Colours’, ‘We Are Family’, and ‘123 it is good to be me’. As part of this SMCS topic they were also given gender-based toys and their teacher discussed with them that the use of toys was a choice and should not be governed by gender. In the week leading up to the Parade, there was an international food day on which each child brought in food from home and spoke about their families.
The Second and Third Claimants are Christians who believe that homosexuality is a sin and pride is a vice which should be avoided. There are two forms of sexual lifestyle, total abstinence or lifelong fidelity in marriage between a man and woman. They accused the School of moral and cultural proselytism; the Parade was not simply part of a broader based curriculum, rather the other parts of the curriculum were a screen for the School’s true LGBT agenda. The aggressive form of education conflicted with their religious household and exposed their young and vulnerable child to the possibility of conflict and confusion. The teaching was problematic in a number of ways, for example that the three songs in questions were “gay anthems” and the posters told the children that same sex relationships were normal. There should be no mention of LGBT to the First Claimant in school. Gender teaching is a matter for parents, indeed a proper respect for parental rights requires that issues of diversity should be addressed within the domestic setting. The word ‘celebrating’ means advancing the cause of LGBT which itself is sinful and not a cause for celebration. Accordingly the First Claimant did not attend the Parade despite not having been excused.
A messy and unedifying course of behaviour and complaints ensued, beginning with a complaint from the Second Claimant to the School’s Chair of Governors in June 2018 making various inflammatory disparaging remarks about the School’s Executive Head. Amidst other events, as discussed below, a further complaint was sent in September 2018 which led to a meeting. It had been planned for three School representatives to attend this meeting, including the Deputy Executive Head. However, an urgent safeguarding issue arose at the last moment meaning she could not attend, and in her place another staff member – the daughter of the Executive Head – attended. The latter was wearing a T-shirt on which the slogan “Why be racist, sexist, homophobic, transphobic, when you could just be quiet?” was written. Both sides disagreed in their recollections but suffice to say the meeting was not a resounding success. Following further communications there was eventually a meeting between the Second and Third Claimants and the School’s Chair of the Complaints Panel. The Panel upheld the complaints about the School’s poor communication regarding the Parade and about the T-shirt worn at the first meeting. However, they found no evidence that anybody had been labelled as homophobic for their beliefs, rejected the suggestion that the First Claimant had been adversely treated as a result of his parents’ beliefs or complaints, and upheld the banning of the Second Claimant (see below).
During the course of the above events, the Second Claimant had contacted a local newspaper repeating a number of disparaging remarks about the Executive Head, accusing her variously of; being Christophobic; trying to radicalise and manipulate the children into accepting LGBT (who are, she said, not a disadvantaged group); being a lawbreaker; behaving like a mafia boss; having a personal agenda because her daughter “is suspected of being part of the LGBT community”.
There was also a detention incident in October 2018, in which the First Claimant was given a ‘fast track’ detention owing to a disruptive tantrum. It began with him misbehaving during a lunch break, impeding the passage of other children using cutlery. This was reproached by a teacher, to no avail, deteriorating to shouting and screaming and the First Claimant eventually being removed to the ‘Leadership Room’ for a period of supervised isolation. The following day he was given a lunchtime detention in accordance with the School’s behaviour policy.
During this time the Second Claimant’s own behaviour was so problematic that the School sent her a letter in October 2018 banning her from telephoning the School or being on the premises until January 2019, for a variety of reasons: intimidating and shouting at staff members during phone calls (requiring a number of them to ask for support in dealing with her); threatening to phone the police for spurious reasons; physically and aggressively approaching a member of staff on the premises and making him feel unsafe; physically approaching the Executive Head on the premises and threatening that she should “watch out” and “see what happened”; trying to ‘out’ a member of staff to the staff; and writing various emails which were untrue, libelous and amounted to harassment, including the accusation that the School had abused the First Claimant.
The claim
The Claimants brought a broad-based claim alleging breaches of Article 2 (the right to education) of the First Protocol of the European Convention of Human Rights (“ECHR”), as well as Articles 8 (right to respect for private and family life), 9 (freedom of thought, conscience and religion) and 10 (freedom of expression) of the Human Rights Act 1998 (“HRA”). The Claimants were free to enjoy these rights without discrimination on any ground such as religion, religious and/or philosophical belief, political or other opinion, in accordance with Article 14. Pursuant to section 6 of the HRA the School, as a “public authority”, must not act in a way which is incompatible with any Convention right. The Claimants also sought remedies for direct and indirect discrimination, and victimistion, contrary to the Equality Act 2010 (“EA”), as both religion and belief are protected characteristics. The issues in this claim in large part mirrored those in the HRA and as such the Judge considered them holistically. Additionally there was a claim for breach of an alleged statutory duty under the Education Act 1996.
In essence the claim was that the First Claimant had been asked to associate with events which represented an aggressive interference with the Claimants’ religious beliefs. In doing so the School contravened the First Claimant’s right to education and failed to suitably respect his and his family’s beliefs. The treatment of their complaints, the detention of the First Claimant and the barring of the Second Claimant were the direct result of their Christian beliefs and their having made a complaint.
HHJ Lethem considered the legal context in some length, at a depth beyond the scope of this article, though the following insightful observations and analyses should be highlighted:
The Judge grouped the issues requiring resolution into the following:
The issues
Belief
The Judge accepted that the Claimants are all Christians and live an avowedly Christian life. Both parents hold these protected characteristics and their son, as a young child reared in a Christian household, also does.
Curriculum
Counsel for the Claimants in closing submissions abandoned their claim for a remedy based on the curriculum given the restrictions outlined above.
In considering the evidence on the curriculum the Judge found that it was not designed to promote LGBT beliefs over others; the Claimants intensely concentrated on one element and lost sight of, and distorted, the overall SMSC curriculum.
The Judge commented that it is important for the children’s responsibilities and experiences in later life that there is some corrective to the ill informed views being articulated by some of the parents. He further rejected the Claimants’ proposition that while they agreed with teaching about colour or racial discrimination, they opposed the same approach for LGBT teaching on the basis that it has no place in school.
The curriculum in question was not RSE, rather it was SMSC, and as such there was no scope for the School to permit students to opt out. This exists only for RSE education.
Delivery
The Judge pithily remarked at paragraph 135 that:
“The display of a rainbow flag does not constitute the aggressive proselytisation that the Claimants contend for. The demonstration of a flag is no more than support for a community. At present our country is festooned with Ukrainian flags, not because there is a belief that Ukraine is superior to the UK or that it should be preferred, but because it is a visible manifestation of support for that country.”
He went on to find that the thrust of the teaching was that there is no hierarchy of equalities. The children were not taught that it is ‘normal’ to have same sex parents; there is a difference between ‘normal’ and ‘acceptable’. Indeed there were not books about families based on homosexual relationships read to the children, save the single page in the Family Book which did no more than acknowledge the existence of same sex families. There was no evidence LGBT was actually even discussed, whereas vegetarianism was for example. Rather the Judge remarked that “there is unchallenged evidence before me that there was a considerable attempt by the school to meet their statutory requirements and to foster equality, diversity and tolerance across six broad spectra”. He was unsurprisingly not persuaded that the songs in questions are “gay anthems”.
The Judge did not agree that the delivery of the teaching breached the EA or HRA. The First Claimant was not even taught any LGBT issues; he was taught general equality issues, using age appropriate materials and in an age appropriate manner. It is also important to remember that the School would have run the risk of breaking the law if they had taught LGBT issues any less than other issues, given their duties under the relevant education legislation. At paragraph 149 the Judge said the following:
“On the above basis, plainly the school did not transgress the line between proselytisation on the one hand and objective and pluralistic delivery on the other hand. In short their delivery did not breach the Equality Act and HRA. Lest I am wrong and the delivery as I have found it to be did breach primary duties owed to the parents. I would recognise that the school are under the duty imposed by s.78 Education Act and the PSED. To that extent they are required to conform with those provisions which are prescribed by law. The undoubted right of the parents to respect for their religious beliefs have to be weighed in a broader spectrum of relevant considerations. The right to education is a weak one and does not extend to education in a particular form. I refer to the comments in Begum and note that interference is difficult to establish. I am satisfied that the State has a legitimate right to mandate teaching designed to protect the rights and freedoms of the LGBT community and to prevent disorder and crime. I amplify this below. If teaching the existence of the LGBT community infringes the HRA rights then this is a necessary and proportionate step in pursuit of a legitimate end.”
Complaints
The Judge accepted that there had been some failures by the School in respect of the Second Claimant’s complaints. Namely that upon strict application of the School’s complaints policy the Second Claimant, having made a complaint about the Executive Headteacher, should have been directed to the Chair of Governors instead of the Executive Headteacher herself. Similarly the T-shirt worn at the meeting was wholly inappropriate and understandably perceived as hostile by the Claimants. However it must be remembered that it was not envisaged that this member of staff would be present at the meeting (only having been asked at the last minute) and this grievance was upheld by the Governors in any event.
Ultimately the Claimants could not prove that these failings in handling their complaints were motivated by the Claimants’ Christian belief. There was simply no evidence to this effect.
Detention
The First Claimant’s behaviour during the material incident activated the relevant part of the School’s behaviour policy and the School’s manner of treating him was in accordance with the same. In any event the Judge found that if he was wrong, and the detention was unlawful, he was not the necessary nexus between the detention and the Claimants’ beliefs. There was simply no evidence of animus and the inference the Claimants’ invited was much too weak to sustain any finding.
The Judge commented insightfully at Paragraph 203 that “I am satisfied that the real cause for the division between the parents and the school lay in the fact that the parents could not and cannot accept that the school are under a legal duty to teach inclusion….”
Barring
Given the Second Claimant’s behaviour the ban was justified and in discharge of their duty to the children and the staff, as opposed to being an act of retribution against the Second Claimant. As one example, the attempted ‘outing’ of a member of staff put that person in physical danger given the atmosphere among some parents.
Breach of statutory duty
The Claimants argued that the School’s teaching amounted to ‘sex education’ within the ambit of sections 403 to 405 of the Education Act 1996 which oblige schools to encourage pupils to have due regard to moral considerations and the value of family life, as well as allowing for pupils to be excused from such teaching. Moreover the LGBT teaching constituted a partisan political activity and so contravened section 406 of the Act.
The success of the claim depended on three issues: i) whether there is a civil remedy for breach of the Education Act 1996; ii) whether the education in question was ‘sex education’; iii) whether the Parade represented ‘partisan political views’. The Judge answered no to all three.
Generally speaking a breach of statutory duty does not, by itself, give rise to any private law cause of action. However such a cause of action will arise if it can be shown that the statutory duty was imposed for the protection of a limited class of the public and that Parliament intended to confer on members of that class a private right of action for breach of the duty: X (minors) v Bedfordshire CC [1995] 2 AC 633. In this case the Education Act 1996 provides a general framework for the benefit of parents and children, and has not been put in place for the protection of a limited class of the public. Hence there is no private law cause of action for the Claimants to act upon.
In any event the claim would have failed because the School’s teaching was not sex education and the School was not involved in the promotion of any political views for the purpose of section 406.
Conclusion
This article could fairly attract the same criticism Samuel Johnson made of Paradise Lost: “None ever wished it longer”. As such, concluding remarks will be kept brief.
Albeit only a County Court judgment, it is extensive and detailed and gives a useful precis of the applicable law. As the pressures on schools to teach diversity and inclusion in a changing world grow ever more delicate, and the risk of conflict with conservative religious beliefs grows ever greater, this judgment gives useful insight and provides a powerful starting point – particularly given HHJ Lethem’s respected status – for future judges grappling with the same issues. It is only a matter of time before an equivalent claim is made.
Richard Collier is a barrister at Deka Chambers.
Ian Clarke of Deka Chambers represented the successful defendant, instructed by James Fawcett and Naadia Ellis of Browne Jacobson.
