The Welsh High Court held that there was no parental right to withdraw children from relationships and sexuality education

R (Isherwood) v Welsh Ministers [2022] EWHC 3331

This 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 2021 Act). 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• The statutory right of excusal under the Education Act 1996 had not been adequately repealed by the 2021 Act;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 by the Honourable Mrs Justice Steyn DBE in the High Court. She 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 overridden 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. She also agreed 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 (more specific rules will prevail over more general rules) in respect of the issues raised in the claim and that no separate issues arose under Article 9.

 “In my judgment, both the Code and the Guidance reflect the general spirit of the Convention as an instrument designed to maintain and promote the ideals and values of a modern liberal democracy, including the values of tolerance, respect and equality. These documents are clearly capable of being implemented in a way that is fully compatible with the second sentence of A2P1. The contention that they fall foul of the prohibition against indoctrination is misconceived.”

The judgment provides a comprehensive overview of the ECtHR’s approach to the interpretation of A2P1 in the context of parental philosophies and convictions, culminating in a 10-point statement of the primary principles by the Court that will likely prove useful to practitioners confronting similar issues in the future.

Link to the judgment here