AS TO THE ADMISSIBILITY OF

                        Application No. 14138/88

                        by Adam CONNOLLEY

                        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 8 July 1988

by Adam CONNOLLEY against the United Kingdom and registered on

23 August 1988 under file No. 14138/88;

        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 1942 and resident

in Leamington.  He 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 son, Adam, born in 1979, who has

"cri-du-chat" syndrome, a chromosomal abnormality resulting in his

delayed development in areas of expression and language.  The

applicant has consistently rejected Adam's placement in a segregated

environment.  Whilst recognising his special needs, the applicant

believes that they are not met in a special school which will not

allow Adam to develop his full potential.  Adam made progress in a

mixed ability child playgroup and a normal school environment was

recommended by one of the child psychologists assessing his needs and

a social worker.

        On 7 March 1985 the local education authority (LEA) issued its

assessment of Adam'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 a report by their educational

psychologist, that "Adam has a chromosomal abnormality causing severe

delayed development.  He therefore needs considerable individual

attention to help develop his potential".  They considered that he

needed "a very small protective teaching environment where all

learning is carefully structured ..."  They proposed to place him in

the nearest appropriate special day school.  The applicant

unsuccessfully appealed to a local appeal committee under 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.

        Since then the applicant has sought to negotiate with the LEA

to secure an alternative form of education for Adam other than in a

segregated school where, he claims, the pupils' handicaps are

exaggerated and the children are over-protected and unprepared for

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

school for two days of the week, with three days at the special

school.  The applicant accepted this solution temporarily, but

considered it inadequate for Adam's needs and the rights of both of

them to have Adam educated in an environment which allows him maximum

potential for social and intellectual development.  Subsequently Adam

was placed full time in a special school after long attempts to

achieve a supported mainstream place failed.

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.  A similar binding appeal to an appeal committee is

available under section 26 of the Education (No. 2) Act 1986 on the

question of a child's expulsion from a school.

COMPLAINTS

        The applicant claims to be a victim of a violation of Article

2 of Protocol No. 1 to the Convention which, in his 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.  He 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 his son's needs and believes that

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

him due to its overall fundamental direction.  The assumptions about

Adam's learning potential underlying segregated education are wholly

rejected by the applicant.  The applicant recognises that Adam

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 applicant also claims that he 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 he has fewer educational options to choose from than

parents of normal children.  Adam'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 applicant contends that the refusal to provide Adam with

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

handled Adam's case constitute an unjustified interference with the

quality of his 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 his right to have his disabled son,

Adam, educated in accordance with his philosophical convictions, i.e.

educated in a normal school.  He 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

has complied with Article 26 (Art. 26) of the Convention because it

finds the application anyway inadmissible for the reasons developed

below. Moreover, it also leaves open the question whether the

applicant's disagreement with the education authorities about the

appropriate school for Adam could be said to be based on deep-founded

philosophical convictions rather than a difference of view as to the

best way of providing Adam 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 Adam had a severe

development delay requiring a very small protective teaching group

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

however, achieved whereby Adam attended a normal school two days a

week, with three days at a special school in the applicant's home

town.  This arrangement has not lasted for reasons which have not been

elaborated by the applicant.  However, in these circumstances the

Commission finds that the education authorities have respected the

applicant's views, even if they have not been fully met, and have

respected Adam'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 applicant has also complained of discrimination, in breach

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

Protocol No. 1 (14+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

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

of his 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

fully considered the applicant's views and at one stage proposed that

Adam 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 applicant's right to respect for family life.  Moreover,

even assuming that the refusal to provide full-time normal education

for Adam 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 Adam'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 applicant has complained that the one year delay taken by

the Secretary of State for Education to review Adam'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 applicant's 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 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)