Short version report from CA decision on Begum v Denbigh High School MARCH 2005

 

http://www.lawreports.co.uk/civmarf0.3.htm has this brief report on Begum v Denbigh High School:

 

EDUCATION — School — Exclusion — School refusing to allow Muslim pupil to wear "jilbab" rather than "kameeze" at school — Whether limitation on right to manifest religion — Whether "justified" — Human Rights Act 1998, Sch 1, Pt I, art 9(1)(2)

 

R (Shabina Begum) v Head Teacher and Governors of Denbigh High School [2004] EWCA Civ 199

 

CA: Brooke, Mummery and Scott Baker LJJ : 2 March 2005

 

The Court of Appeal set out the specific approach to be adopted when a school was considering whether forbidding a girl pupil to wear a stricter form of dress than that permitted by the school's policy would violate her right to manifest her religion under art 9(1) of the Convention for the Protection of Human Rights and Fundamental Freedoms, and whether any such limitation could be justified under art 9(2).

 

The Court of Appeal allowed the appeal of Miss Shabina Begum (claiming by her litigation friend Shuweb Rahman) from Bennett J's decision of 15 June 2004 refusing her claim for judicial review of a decision by Denbigh High School in Luton, whereby she was not permitted to wear the stricter "jilbab" form of dress when at school. The claimant, now 16, stated that she had been unlawfully excluded from school but the judge found that she had not. The school was mixed-faith with a large number of Muslim pupils, and the uniform policy required girls to wear a "kameeze", which the claimant had done until puberty. When she later came to school dressed in the jilbab she was not permitted to attend, and an impasse developed. She eventually missed two years' education. On appeal, the claimant sought declaratory relief but neither a return to the school nor damages.

 

BROOKE LJ said that the claimant was excluded from school, where the school had in effect told her not to come back unless she was willing to comply with the prescribed uniform requirements. The school had not adopted the right approach to the issues, which posed the following questions. (i) Had the claimant established that she had a relevant Convention right which qualified for protection under art 9(1)? (ii) Subject to any justification that was established under art 9(2), had that right been violated? (iii) Was the interference with the right prescribed by law in the Convention sense? (iv) Did the interference have a legitimate aim? (v) What were the considerations that needed to be balanced against each other when determining whether the interference was necessary in a democratic society for the purpose of achieving that aim? (vi) Was the interference justified under art 9(2)? The answers here led to the conclusion that the claimant was excluded because her right under art 9(1) of the Convention on Human Rights to manifest her religion had been limited, and it had been for the school to justify such limitation. However, although the limitation was "prescribed by law", it was not "necessary", for the purposes of art 9(2): contrast Sahin v Turkey (Application no 44774/98) 29 June 2004 (ECtHR), as to necessity, where Turkey was constitutionally secular and protected equality in its constitution. Accordingly the following declarations were made: (i) the defendant had unlawfully excluded the claimant from school; (ii) the school had unlawfully denied her the right to manifest her religion; and (iii) the school had unlawfully denied her access to suitable and appropriate education. However, this was not to state that the school would be unable to justify its stance if it were to reconsider its uniform policy in light of this judgment.

 

MUMMERY and SCOTT BAKER LJJ gave concurring judgments.

 

Appearances: Cherie Boooth QC, Carolyn Hamilton and Eleni Mitrophanous (Alason Carter, Children's Legal Centre) for the claimant; Simon Birks (Richard Stevens, Head of Legal Services, Luton Borough Council) for the defendant.

 

Reported by: Matthew Brotherton, barrister.