When Has A Child's Right To Education Been Breached?


The Law Of… Protecting A Child's Right To Education

In June 2017, the High Court issued a judgment in the case of E v London Borough of Islington that considered new points of law related to a child's right to education. 

Serena Fassò, Solicitor in Education Law and Community Care, looks at the circumstances of the case and analyses the court's decision.

What Was The Background To The Case?

E was 9-years-old when this case began. At the time of the court proceedings, E lived with her mother and 2 younger siblings in temporary accommodation provided by Islington under the Housing Act 1996. 

E's mother is profoundly deaf, unable to speak and illiterate. On top of this, she was being subjected to domestic violence. Making the difficult decision to flee the family home in Southwark, E and her mother were placed in temporary accommodation at a women's refuge in Islington.

During this unsettling time, E fell out of education as her mother was unable to pre-arrange schooling due in part to her disabilities. Whilst Islington was notified by a charity in early June that E was out of school and urgently needed a school place, the Local Authority took no steps to provide E with alternative education.

During the months that followed, the family was housed by 2 different Local Authorities and moved to different accommodation several times.

Due to the failure of the responsible Local Authorities to provide E with education during this time, E missed 20 weeks of term-time education between June 2015 and June 2016. This was almost half of the school year and the court held that this period of absence was a significant disruption to her education.

What Does The Law Say About Providing Education For Children?

Article 2 of the First Protocol to the European Convention on Human Rights places a legal duty on countries (including the UK) to protect and enforce the right to education.

This right also gives individuals the right to access mainstream education facilities that already exist. It is important to note that the Supreme Court has previously held that Article 2 of the First Protocol does not impose an obligation on a country to provide for all special educational needs, however exceptional they may be.

How Do Courts Determine When There Has Been A Breach Of A Child's Right To Education?

When trying to find out whether there's been a breach of a child's right to education, a court will look at the impact on the child of any unjustifiable periods of absence from education. It will then determine whether, altogether, they resulted in a 'denial' of the right to education.

If there has been a breach, the state will be found to be acting unlawfully under the Human Rights Act 1998.

In addition to its human rights obligations, the state has a statutory duty under domestic law to provide children of compulsory school age with alternative educational facilities where they are unable to attend school because of illness, exclusion or other justified reasons.

What Did The Judge Find In This Case?

In E v LB Islington, the judge listed several factors that would need to be taken into consideration in each individual case to determine whether an unjustified failure to provide access to education could be said to amount to a denial of the right itself.  

These include:

  • The age of the child and stage of education they have reached
  • Their educational history
  • The duration of absence from any educational provision
  • Any alternative provision offered or made available
  • Any resource implications for the Local Authority
  • Any circumstances particular to the child or his or her family that aggravate or mitigate the impact of the child's absence from school (this was the most important point in relation to this case)

The judge noted that E’s circumstances were "grave and exceptional" on account of her unsettled family background and the serious disabilities of her mother and only carer. He also noted that these prevented her from offering E any support with reading and learning generally and providing her with opportunities to socialise with children of her age. 

The judge acknowledged the fact that E’s repeated absences from school deprived her of the only opportunity to interact with other children and hearing adults who could support her learning. He also noted the negative impact of her having to change schools 4 times in the space of a year.

The court found that the circumstances of this case met the threshold for finding that E’s right to education had been breached: the state had failed to provide E with access to mainstream education between June 2015 and June 2016, and was therefore acting unlawfully under the Human Rights Act 1998.

Serena comments:

"The facts of this case were particularly stark, as the mother (who is deaf, unable to speak and illiterate) was in no position to arrange her daughter’s education without assistance or to provide her with learning support at home."

"It is likely that in the absence of any exceptional circumstances, or where a Local Authority can offer a fact-specific explanation for a child’s absence from education, the court would come to a different conclusion."

"This is particularly likely to be the case where the Local Authority has made offers of suitable educational provision that have not been taken up by parents, or where they have otherwise tried to resolve matters without the parents co-operating."

"Cases related to the failure to make special educational provision required by a child’s special needs primarily relate to SEN legislation rather than the Human Rights Act."

"But, if your child has SEN and isn't receiving education it's important to speak to an Education Law expert as soon as possible. We can ensure that your child doesn't miss out on their education and gets the most appropriate support." 

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