| SPOTLIGHT |
The High Court has refused a teacher permission for a judicial review challenge in which she planned to argue that a local authority and her school breached the Education Act 2002, Equality Act 2010 and the Human Rights Act 1998 after requiring her to "affirm" a primary school-aged child through their gender transition.
The teacher, who is supported by the religious campaign group Christian Concern, had her application refused earlier this week (25 October) after Mrs Justice Farbey ruled that the claimant had no standing to bring judicial review proceedings.
The dispute in AB, R (On the Application Of) v A County Council & Anor [2022] EWHC 2707 (Admin) revolves around the implementation of a school policy which dictated how the teacher should interact with a transitioning child set to join her class.
After raising further safeguarding concerns with school governors and then the council, which were each dismissed, the teacher sought legal advice.
According to Christian Concern, her judicial review application argued that the school and local authority, by requiring a teacher to be an active participant in the school's transgender-affirming approach to the child, whether she wishes to be or not, is ultra vires to the law and potentially in breach of both the Equality Act 2010 and the Human Rights Act 1998 relating to religion or belief.
Her lawyers were also calling on the school to reconsider its response to the safeguarding concerns raised by the teacher with its duties under section 175(1) of the Education Act 2002 and section 47 of the Children Act 1989.
Mrs Justice Farbey noted that the claimant did not teach the child (Child X). "She has in the past had a personal dispute with the school about how she could or should treat Child X but that has been resolved. By bringing these proceedings, she seeks to ventilate what she calls 'substantive safeguarding concerns' about Child X. In doing so, she does not claim to represent Child X. As a matter of law, she cannot represent Child X's interests because she has not sought the court's permission to do so."
The judge dismissed the teacher's reliance on government statutory guidance, Keeping Children Safe in Education 2022, which states that all school staff "have responsibility to provide a safe environment in which children can learn".
Mrs Justice Farbey found that: "Taking that isolated sentence out of place does not advance the claimant's case to have standing to bring these proceedings.
“There is a difference between a general duty on teachers to provide a safe environment and the right of any teacher to come to court when she disagrees with a decision taken by a school. I do not regard the passage on which the claimant relies as giving her standing to bring this claim – even arguably.”
The judge also dismissed an argument that the claimant should be able to bring the claim as she was acting in the public interest and as a whistle-blower.
The judge wrote: "She has no particular role in bringing public interest challenges. She does not for example represent a pressure group, charity or NGO with specialism in gender issues or in child welfare. If the mere assertion that she represents the public interest were sufficient to give her standing, it would mean that the courts would have no way of distinguishing between a person with a genuinely sufficient interest and others. That is not the law."
She added: “In my judgment, the claimant has not established that she herself has a reasonable concern in Child X's welfare as opposed to others involved in Child X's care, education and development. I am not persuaded that she has standing or even that it is arguable that she has standing.”
The judge said that as the claimant had no standing, “even arguably”, the renewed application must fail.
In those circumstances, Mrs Justice Farbey dealt only briefly with other matters raised by the claim in light of the importance of the issues.
She found that the claim had been brought out of time, the decision under challenge in relation to the school having been taken in October 2021 which was more than three months before the claim was started.
Mrs Justice Farbey also highlighted how, in an application for permission to apply for judicial review, the claimant must persuade the court that her grounds for judicial review were arguable with a reasonable prospect of success.
The judge said the formation and implementation of policies on gender issues in schools concerned complex issues of social policy. She drew attention to the “long-established principle of the law of judicial review” that, in relation to issues of social policy that raise multifactorial considerations for decision-makers, “the courts will be slow to intervene”.
Mrs Justice Farbey said that, in her judgement, the claimant was “using the banner of law in an attempt to persuade the court to enter into a policy debate that is ill-suited for judicial review".
The judge added that the grounds raised no arguable questions of public law and noted that even if she had not concluded the claimant had no standing to bring a judicial review, permission would have been refused on the merits of the grounds.
The teacher has vowed to appeal the decision.
Responding to the High Court's refusal to grant permission, Andrea Williams, chief executive of the Christian Legal Centre, said: "If ever there were a matter of public law consideration it is the momentous issues in this case. They go to the heart of how we look after primary aged gender confused children in our state schools."
She added: "The case does not end here. Our client is motivated by compassion and care and will continue for as long as it takes to see that children are kept safe in schools.
"We are disappointed by this decision but are resolved to keep standing up for the well-being of children.”
Alongside the judicial review application, the teacher is also in the process of appealing the council's later decision to sack her for accessing and sharing information about the pupil while pursuing the legal challenge. Christian Concern said that if the school dismisses her appeal, it is highly likely that she will bring proceedings in an employment tribunal.
Adam Carey
