AS TO THE ADMISSIBILITY OF

                        Application No. 14136/88

                        by J. and B. L.

                        against the United Kingdom

        The European Commission of Human Rights sitting in private on

2 October 1989, the following members being present:

                MM.  C.A. NØRGAARD, President

                     A.S. GÖZÜBÜYÜK

                     A. WEITZEL

                     J.C. SOYER

                     H.G. SCHERMERS

                     H. DANELIUS

                     G. BATLINER

                     J. CAMPINOS

                     H. VANDENBERGHE

                Mrs.  G.H. THUNE

                Sir  Basil HALL

                M.   F. MARTINEZ

                Mr.  L. LOUCAIDES

                Mr.  H.C. KRÜGER, Secretary to the Commission

        Having regard to Article 25 of the Convention for the

Protection of Human Rights and Fundamental Freedoms;

        Having regard to the application introduced on 25 February

1988 by J. and B. L. against the United Kingdom and registered on 23

August 1988 under file No. 14136/88;

        Having regard to the report provided for in Rule 40 of the

Rules of Procedure of the Commission;

        Having deliberated;

        Decides as follows:

THE FACTS

        The applicants are British citizens, husband and wife, born in

1948 and 1953 respectively and resident in Rugby.  They are

represented before the Commission by Mrs.  J. Macfarlane, Principal

lecturer in law, Anglia Higher Education College.

A.      The particular facts of the case

        The fact of the present case, as submitted by the applicants,

may be summarised as follows:

        The applicants have a son, St., born in 1979, who suffers

from ataxia and dsypraxia, resulting in delayed development,

particularly in expressive development.  There is no medical reason

why he could not mix with able children.  The applicants recognise

that St. has special needs but consider they are best met in an

integrated normal school environment with adequate help, where he

could reap the benefit of stimulation from able children, especially

in language development.  This has been born out during his

participation in a mixed ability child playgroup (attested by

playgroup organisers and nursery school teachers).  On 7 March 1985

the local education authority (LEA) issued its assessment of S.'s

educational needs in a "statement of special educational needs",

pursuant to sections 5 and 7 of the Education Act 1981.  They found,

on the basis of the report of their educational psychologist, that

"St. has severe delayed development in all areas and is

functioning at a very limited level of general ability".  They

considered that he needed "a very small protective teaching

environment where all learning is carefully structured", with

particular attention being given to activities designed "to encourage

St. to look at the material he is handling".  They proposed to

place him in the nearest appropriate special day school.  The

applicants unsuccessfully appealed against the assessment pursuant to

section 8 (1) and (2) of the 1981 Act.  A further appeal to the

Secretary of State for Education under section 8 (6) and (7) of the

1981 Act, which was lodged on 8 September 1986, was rejected a year

later on 23 September 1987.  In reaching his decision the Secretary of

State took into account the advice, representations and evidence which

had been before the LEA and the local appeal committee, as well as

independent reports submitted by the applicants and their further

representations.  However, he agreed with the LEA's assessment of

St.'s special educational needs and their proposal to place him at

the special school.

        Since then the applicants have sought to negotiate with the

LEA to secure an alternative form of education for St. other than

in a segragated school where, they claim, the pupils' handicaps become

exaggerated and the children are over-protected and unprepared for

life in the outside world.  The LEA offered to place St. in a

normal mainstream school for two days of the week, with three days at

the special school.  The applicants accepted this solution

temporarily, but consider it indadequate for St.'s needs and the

rights of all three of them to have St. educated in an environment

which allows him maximum potential for social and intellectual

development.  At the moment the family are in dispute with the LEA

about the appropriate resources at the mainstream school for St.'s

education.

B.      The relevant domestic law

        Section 8 of the Education Act 1944 (the 1944 Act) creates a

statutory duty on local authorities to provide suitable primary and

secondary full-time education "to afford for all pupils opportunities

for education offering such variety of instruction and training as

may be desirable in view of their different ages, abilities, and

aptitudes ...".  In particular local authorities must provide

appropriate special education for disabled children.  This duty was

reinforced by the Education Act 1981.  The LEA's duties are

enforceable, pursuant to a parent's complaint or otherwise under

sections 68 and 99 of the 1944 Act, by the Secretary of State for

Education.  He may seek an order of mandamus against a recalcitrant

LEA.  A subsidiary obligation is placed upon parents to secure

suitable education for their children in accordance with their age,

aptitude and ability.  This latter obligation is ultimately

enforceable through criminal proceedings (sections 36, 37 and 39 of

the 1944 Act).  Section 76 of the 1944 Act requires education

authorities to have regard to parents' wishes so far as is compatible

with the provision of efficient instruction, and the avoidance of

unreasonable public expenditure.

        By virtue of the Education Act 1981 (the 1981 Act) LEAs are

required to meet the special educational needs of handicapped children

in their area but, if possible, not to segregate them from other

children, provided that parents' wishes have been taken into account

and provided that this is compatible with the making of the special

educational provision required, the provision of efficient education

for the other children and the efficient use of resources (section 2

of the 1981 Act).  Section 5 of the 1981 Act enables the LEA to assess

the special educational needs of disabled children, in respect of

which assessment the parents may make representations and submit

written evidence.  If the LEA decides that a child's special

educational provision is called for, they must make a statement of the

child's special educational needs and make suitable arrangements to

meet them (section 7), even if it means placing the child in a school

outside the LEA's jurisdiction (section 6 of the Education

(Miscellaneous Provisions) Act 1953).  Special educational assessments

are subject to periodic review.  Parents may appeal against the LEA's

statement to an appeal committee which may confirm the special

educational provision contained in the statement in the light of the

circumstances of the case at the time of the hearing of the appeal, or

remit the case to the LEA for reconsideration in the light of the

committee's observations (section 8 (1), (2) and (4)).  Appeal

committees comprise three, five or seven members, drawn from the local

education authority and people who have experience in education and

are acquainted with educational conditions in the area (Schedule 2

Part I of the Education Act 1980).

        Following the confirmation or remit of a case, the parents may

finally appeal to the Secretary of State for Education who may

confirm, amend or annul the LEA's statement (section 8 (6) and (7) of

the 1981 Act).  These appeals are normally dealt with by Ministry of

Education civil servants, not the Minister himself.  There is no right

to an oral or adversary hearing with this form of appeal.

        Judicial review of the Secretary of State's decisions, or any

binding decision of an appeal committee, will lie on the "Wednesbury

principles", i.e. if they are tainted by irrationality, illegality or

procedural impropriety.  An action for a declaration or damages for

breach of statutory duty may also be available.

        In general LEA's must respect parental choice of schools

(section 6 of the Education Act 1980).  Section 7 (1) of the 1980 Act

provides for an appeal by parents against an LEA's decision concerning

school admissions or a school's refusal to accept a pupil.  This

appeal is to the appeal committee, but section 7 (5) of the 1980 Act

renders the appeal committee's decision fully binding on the LEA or

school concerned.

COMPLAINTS

        The applicants claim to be victims of a violation of Article 2

of Protocol No. 1 to the Convention which, in their view, guarantees

the provision of a reasonable range of practical choices within the

State school system for parents in respect of their children's

schooling.  They submit that this has not been met in their present

case.  The applicants hold deep philosophical convictions about the

type of schooling best suited to their son's needs and believe that

segregated education is inappropriate and harmful in the long-term to

him due to its overall fundamental direction.  The assumptions about

St.'s learning potential underlying segregated education are

wholly rejected by the applicants.  The applicants recognise that

S. requires an education with a low teacher/pupil ratio, but this

can be provided by the specialist units within the integrated,

mainstream schools, thus involving no unreasonable public expenditure

and contributing to efficient instruction and training.

        The applicants also claim that they are victims of a breach of

Article 14 of the Convention, read in conjunction with Article 2 of

Protocol No. 1, because as parents of a child with learning

difficulties they have fewer educational options to choose from than

parents of normal children.  St.'s education offers him less

intellectual and social opportunity than that which a child without

disabilities could expect within the United Kingdom State education

system.  The continuing segregation of handicapped children has no

objective or reasonable justification in the light of contemporary

knowledge, as demonstrated in countries like Denmark and Italy, and is

disproportionate.  The rights and freedoms of able children in a

mainstream school would not be infringed, instead they would benefit,

their understanding and tolerance being enhanced.

        The applicants contend that the refusal to provide St.

with a place in a mainstream school and the manner in which the LEA

has handled S.'s case constitute an unjustified interference with

the quality of their family life, contrary to Article 8 of the

Convention.

        Finally, the applicants complain of a breach of Article 6

para. 1 of the Convention on its own as regards an allegedly

unreasonable delay of one year in the final appeal proceedings, and

together with Article 14 as regards the absence of any decision making

powers of the local appeal committee concerned under section 8 (1) and

(2) of the Education Act 1981, compared with the decision making

powers of this committee when dealing with other education appeals

concerning school placement under section 7 of the Education Act 1980.

THE LAW

1.      The applicants have complained that the British education

authorities have failed to respect their right to have their disabled

son, St., educated in accordance with their philosophical

convictions, i.e. educated in a normal school.  They contend that

there is a lack of adequate choice of State schools for parents of

disabled children and claim to be victims of a violation of Article 2

of Protocol No. 1 (P1-2) to the Convention which reads as follows:

        "No person shall be denied the right to education.  In the

        exercise of any functions which it assumes in relation to

        education and to teaching, the State shall respect the right

        of parents to ensure such education and teaching in conformity

        with their own religious and philosophical convictions."

        The Commission leaves open the question whether the

applicants' disagreement with the education authorities about the

appropriate school for St. could be said to be based on

deep-founded philosophical convictions rather than a difference of

view as to the best way of providing St. with an education.  Even

assuming that the applicants' philosophical convictions may be at

issue in the present case, the Commission refers to the dominant

character of the child's right to education in Article 2 of Protocol

No. 1 (P1-2) to the Convention (cf. Eur. Court H.R., Kjeldsen, Busk

Madsen and Pedersen judgment of 7 December 1976, Series A no. 23, p.

25, para. 52).

        The second sentence of Article 2 (Art. 2) requires the State in

exercising any educational function to ensure that the education and

teaching of a child is as far as possible in conformity with the

parents' religious and philosophical convictions.  This requirement

extends not only to the matter taught but to other aspects of the

educational function (cf. Eur. Court H.R., Campbell and Cosans

judgment of 25 February 1982, Series A no. 48, p. 14, para. 33).  It

does not, however, require the State to provide special facilities to

accommodate particular convictions though it may affect the use of

existing facilities (No. 7782/77, Dec. 2.5.78, D.R. 14 p. 179).  In

this context reference should be made to the United Kingdom

Government's reservation to this provision, accepting the second

sentence of Article 2 (Art. 2) "only so far as it is compatible with

the provision of efficient instruction and training and the avoidance

of unreasonable public expenditure".

        The Commission notes that, in the same vein as the

aforementioned reservation, section 2 of the Education Act 1981

provides that a child with special educational needs should be

educated in an ordinary school if that is compatible with the special

education the child requires, the provision of efficient education for

other children at the school and the efficient use of resources.

        The Commission observes that there is an increasing body of

opinion which holds that, whenever possible, disabled children should

be brought up with normal children of their own age.  The Commission

recognises, however, that this policy cannot apply to all handicapped

children.  It further recognises that there must be a wide measure of

discretion left to the appropriate authorities as to how to make the

best use possible of the resources available to them in the interests

of disabled children generally.  While these authorities must place

weight on parental convictions, it cannot be said that the second

sentence of Article 2 (Art. 2) requires the placing of a child with severe

development delay in a general school (with the expense of additional

teaching staff which would be needed) rather than in an available

place in a special school.

        In the present case the Commission notes that the expert

opinion of the education authorities considered that St. had a

severe development delay requiring a very small protective teaching

group which could not be provided in a normal school.  A compromise

has, however, been achieved whereby St. attends a normal school

two days a week, with three days at a special school in the

applicants' home town.  In these circumstances the Commission finds

that the education authorities have respected the applicants' views,

as well as St.'s right to have an as effective education as

possible.  The Commission concludes that the present case does not

disclose any appearance of a violation of Article 2 of Protocol No. 1

(P1-2) to the Convention.  It follows that this aspect of the

application is manifestly ill-founded, within the meaning of Article

27 para. 2 (Art. 27-2) of the Convention.

2.      The applicants have also complained of discrimination, in

breach of Article 14 (Art. 14) of the Convention read in conjunction

with Article 2 of Protocol No. 1 (P1-2), insofar as there are

allegedly fewer educational options for disabled children compared

with able children within the State school system.  However, the

applicants have not substantiated this claim.  The Commission notes

that the relevant legislation encourages the integration of

handicapped children in normal schools, but provides that their

special needs be met, if necessary in specialised institutions.  The

Commission finds no element of discrimination in such a policy, but

rather the contrary, the special requirements of certain disabled

children being catered for where necessary.  In these circumstances

the Commission concludes that this part of the application is

manifestly ill-founded within the meaning of Article 27 para. 2

(Art. 27-2) of the Convention.

3.      The applicants have next contended that the refusal to provide

S. with a place in a mainstream school, full-time, is in breach

of their rights under Article 8 (Art. 8) of the Convention, the

relevant part of which reads as follows:

        "1.  Everyone has the right to respect for his ...

        family life ...

        2.  There shall be no interference by a public authority

        with the exercise of this right except such as is in

        accordance with the law and is necessary in a democratic

        society ... for the protection of ... the rights and

        freedoms of others."

        However, the Commission notes that the educational authorities

have taken account of the applicants' views and proposed that St.

be placed part-time in a normal school, two days a week.  It would not

appear, therefore, that these authorities have failed to respect the

applicants' right to respect for family life.  Moreover, even assuming

that the refusal to provide full-time normal education for St.

could be said to be an interference with the applicants' Article 8

(Art. 8) right, the Commission finds such interference justified, as

being in accordance with the law and necessary in a democratic society

for the protection of the rights of others, namely St.'s right to a

suitable education for his disabilities.  The Commission concludes

that this complaint is also manifestly ill-founded, within the meaning

of Article 27 para. 2 (Art. 27-2) of the Convention.

4.      The applicants have complained that the one year delay taken

by the Secretary of State for Education to review St.'s

educational assessment under section 8 (6) and (7) of the Education

Act 1981 was unreasonable and in breach of the "reasonable time"

requirement laid down in Article 6 para. 1 (Art. 6-1) of the

Convention, the relevant part of which provides as follows:

        "In the determination of his civil rights and obligations

        ... everyone is entitled to a fair and public hearing

        within a reasonable time by an independent and impartial

        tribunal established by law ..."

        However, the Commission finds that the review procedure before

the Secretary of State is not a determination, within the meaning of

this provision, of civil rights and obligations.  Article 6 para. 1

(Art. 6-1) of the Convention is, therefore, not applicable to this

review and the applicants' complaint about a delayed review must be

rejected as being incompatible ratione materiae with the provisions of

the Convention, pursuant to Article 27 para. 2 (Art. 27-2).

5.      Finally the applicants have complained of discrimination, in

breach of Article 14 (Art. 14) of the Convention read in conjunction

with Article 6 para. 1 (Art. 6-1) (civil rights), insofar as appeal

committees acting under section 8 (1) and (2) of the Education Act

1981 have fewer decision making powers when dealing with parental

appeals under section 8 (1) and (2) of the Education Act 1981, than

they have when dealing with appeals under section 7 of the Education

Act 1980.  The former appeals concern special educational provision

for disabled children, the latter appeals concern disputes over

placements in normal schools.

        However, the Commission considers that, as with the Secretary

of State's review, the aforementioned committees are not determining,

within the meaning of Article 6 para. 1 (Art. 6-1) of the Convention,

parents' civil rights and obligations.  These committees are made up

of education experts who review the educational needs of the pupils

concerned.  Article 6 para. 1 (Art. 6-1) of the Convention is not,

therefore, applicable to this review and no question of discrimination

under Article 14 (Art. 14) of the Convention arises, as this latter

provision is limited to the prohibition of discrimination in the

securement of Convention rights.  It follows that this aspect of the

case must also be rejected as being incompatible ratione materiae with

the provisions of the Convention, pursuant to Article 27 para. 2

(Art. 27-2).

        For these reasons, the Commission

        DECLARES THE APPLICATION INADMISSIBLE.

  Secretary to the Commission         President of the Commission

         (H.C. KRÜGER)                      (C.A. NØRGAARD)