AS TO THE ADMISSIBILITY OF

                        Application No. 14137/88

                        by P.D.

                        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 4 September

1987 by P.D. against the United Kingdom and registered on 23 August

1988 under file No. 14137/88;

        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 applicant is a British citizen, born in 1945 and resident

in Hereford.  She is represented before the Commission by Mrs. J.

Macfarlane, Principal lecturer in law, Anglia Higher Education College.

A.      The particular facts of the case

        The facts of the present case, as submitted by the applicant,

may be summarised as follows:

        The applicant has a daughter, L., born in 1972, who has

Downs syndrome.  From the age of five she been educated solely in

segregated schools against the applicant's wishes.  She contends that

her daughter should be educated in a Slow Learner Unit of a mainstream

school, which units exist locally.

        In September 1984 the local education authority (LEA),

apparently following the report of their educational psychologist,

issued its assessment of Louise's educational needs in a "statement of

special educational needs", pursuant to sections 5 and 7 of the

Education Act 1981.  The assessment was as follows:

        "L. is a Downs Syndrome child with severe

learning difficulties, the most acute of which are her poor

use and comprehension of language...

        L. requires a developmentally based curriculum

and an educational environment in which high priority is

given to the development of her general language skills.

She should be encouraged to apply skills learned in one

situation to other similar situations as much as possible.

Concepts of time, money and road safety still need much

improvement, as do her general self-help although she has

made some progress in this area.

        Small group provision continues to be necessary and

regular opportunities for individual teaching are also

required...

        L. should be educated at a school where the

curriculum and teaching expertise are suitable for the needs

of a child with L.'s individual needs and with overall

severe learning difficulties.  Such a school is the Barrs

Court School and L.'s current placement there should

continue."

        The applicant's appeals to a local appeal committee (section 8

(1) and (2) of the 1981 Act) and the Secretary of State for Education

(section 8 (6) and (7) of the 1981 Act) failed.  At the applicant's

request a second assessment was made with the same result.  Further

appeals to the local appeal committee and the Secretary of State also

failed.  The latter held on 12 March 1987, after carefully considering

all the evidence, that there were no grounds for amending L.'s

educational assessment and he confirmed her placement at a special

segregated school for disabled children.

        Between May 1986 and May 1987 the applicant, concerned over

damage to her daughter's social and intellectual development in a

segregated environment, kept L. at home and taught her herself.

The LEA refused to provide a teacher for home tuition.  After the

Secretary of State's decision of 12 March 1987 the applicant felt

constrained to send L. to the special school pending an

application to the Commission.  When L. reached 16 years of age,

beyond statutory school age, the LEA agreed to the applicant's request

to place L. in a special class of a technical college as of April

1989 on a trial basis.

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 applicant claims to be a victim of a violation of Article

2 of Protocol No. 1 to the Convention which, in her 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.  She submits that this has not been met in the present

case.  The applicant holds deep philosophical convictions about the

type of schooling best suited to her daughter's needs and believes

that segregated education is inappropriate and harmful in the

long-term to her due to its overall fundamental direction.  The

assumptions about L.'s learning potential underlying segregated

education are wholly rejected by the applicant.  The applicant

recognises that L. requires an education with a low teacher/pupil

ratio, but this could have been provided by the specialist units

within the integrated, mainstream schools, thus involving no

unreasonable public expenditure and contributing to efficient

instruction and training.

        The applicant also claims that she is a victim of a breach of

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

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

difficulties she has fewer educational options to choose from than

parents of normal children.  L.'s education offers her 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 disabled 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 applicant contends that the refusal to provide L. with

a place in a mainstream school during her compulsory schooling and the

manner in which the LEA has handled L.'s case constitute an

unjustified interference with the quality of her family life, contrary

to Article 8 of the Convention.

        Finally, the applicant complains of a breach of Article 6

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

delay in the whole 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 applicant has complained that the British education

authorities have failed to respect her right to have her disabled

daughter, L., educated in accordance with her philosophical

convictions, i.e. educated in a normal school.  She contends that

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

disabled children and claims to be a victim 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

applicant's disagreement with the education authorities about the

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

deep-founded philosophical convictions rather than a difference of

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

assuming that the applicant's 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

learning difficulties 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 L. had severe

learning difficulties requiring a very small protective teaching group

which could not be provided in a normal school.  The Commission finds

no evidence that this opinion was arbitrary or unreasonable.  Nor does

it find any evidence that the LEA concerned refused to consider the

applicant's views or based their decision on reasons other than that

of giving L. 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 applicant has 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 applicant has

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 applicant has next contended that the refusal to provide

L. with a place in a mainstream school, full-time, was in breach

of her 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

considered the applicant's views even if they were unable to fulfil

them.  It would not appear, therefore, that these authorities have

failed to respect the applicant's right to respect for family life.

Moreover, even assuming that the refusal to provide full-time normal

education for L. could be said to have been an interference with

the applicant's 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 L.'s right to a suitable education for her

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 applicant has complained that the delays in L.'s

educational assessment were 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 assessment procedures

are 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 them and the applicant's

complaint about delays 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 applicant has 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 these committees are

not determining, within the meaning of Article 6 para. 1 (Art. 6-1) of the

Convention, parents' civil rights and obligations.  The 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)