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AS TO THE ADMISSIBILITY OF

Application No. 13884/88

by Alan NORTHCOTT

against the United Kingdom

The European Commission of Human Rights sitting in private on

5 May 1989, the following members being present:

MM. J.A. FROWEIN, Acting President

F. ERMACORA

G. SPERDUTI

E. BUSUTTIL

G. JÖRUNDSSON

A. WEITZEL

H.G. SCHERMERS

H. DANELIUS

J. CAMPINOS

H. VANDENBERGHE

Mrs. G.H. THUNE

Sir Basil HALL

MM. F. MARTINEZ

C.L. ROZAKIS

Mrs. J. LIDDY

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 11 September

1987 by Alan NORTHCOTT against the United Kingdom and registered on

24 May 1988 under file No. 13884/88;

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 citizen of the United Kingdom, born in 1952

and resident in Plymouth. He is unemployed.

The facts of the case as submitted by the applicant, and which

may be deduced from documents accompanying the application, may be

summarised as follows:

The applicant has a son, Nicholas, born in December 1973, who

is profoundly deaf. The child was assessed by his local education

authority (LEA) as having special educational needs in 1976, his

hearing impairment being compounded by other difficulties. Until the

age of ten he attended the Hartley House School for the Deaf in

Plymouth where he received exceptional educational provision with

one-to-one support full time from a qualified teacher of the deaf and

also from a classroom assistant. He was taught mostly in isolation

from other pupils at the school. The LEA had decided not to send the

son to a specialised boarding school earlier out of respect for the

applicant's view that separating Nicholas from his family in the early

years could have had an adverse effect on his development. Hartley

House School was closed in July 1984 because with just 21 pupils

having a wide age (2-17 years) and ability range it proved

increasingly difficult to provide a full curriculum for all pupils.

The son was subsequently placed in two local special schools,

but his difficulties in learning, communication and behaviour became

more apparent. The LEA considered that it had no school in its region

which could provide for the son's complex needs and recommended that

he be sent to a boarding school, the Royal School for the Deaf, in

Manchester. The applicant objected to the proposal because that

school is 450 miles from the family home and he feels that his son

would suffer great distress if sent to a boarding school.

On 24 February 1987, the LEA issued a formal Statement under

Section 7 of the Education Act 1981 certifying the boy's special

educational needs and proposing placement at a special school able to

offer appropriate educational and social programmes for pupils with

profound hearing loss and associated difficulties, such as the Royal

School for the Deaf in Manchester.

The applicant has refused to follow this recommendation and

his son has not attended school for 18 months. He is now faced with

the child being made a ward of court by the LEA with a view to sending

him to the said boarding school.

The applicant appealed against the LEA's Statement to the

Local School Admissions Appeal Committee which upheld the LEA decision

on 21 May 1987 as follows:

"Having taken into account all the evidence given and the

written material before them the Committee were of the view

that (Nicholas') learning, behavioural and emotional

problems could only properly be treated in a school with

both specialist teachers and resources where Nicholas would

be in a peer group in which he would have the opportunity

to overcome his communication problems. They appreciated

that there are perhaps only three such establishments in

the country. Accordingly the Committee resolved to confirm

the special education provisions specified in the Statement

issued by the Local Education Authority in respect of

Nicholas under Section 7 of the Education Act 1981."

On 6 October 1987 the LEA's decision was also confirmed on

appeal by the Secretary of State for Education under Section 8(6) of

the Education Act 1981, although the Secretary of State drew the

parties' attention to the need for annual reviews of the child's

situation. The applicant states that he was refused legal aid for

judicial review of this decision.

On 23 November 1987, the Local Ombudsman of the Commission for

Local Administration in England found no evidence of maladministration

in the case.

COMPLAINTS

The applicant complains to the Commission that the local

authority has failed to make provision for the education of his son

locally and that there has been a breach of Article 2 of Protocol

No. 1 to the Convention. He believes that his son would not be

offered a proper education in Manchester, because being away from his

home would cause him to regress.

THE LAW

The applicant has complained that his local education

authority (LEA) has failed to provide education for his deaf son near

the family home and that the decision of the various education

authorities to educate the child at a specialised boarding school

450 miles away from home is in breach of Article 2 of Protocol No. 1 (P1-2)

to the Convention. The applicant believes that his son would suffer

distress at a boarding school and regress educationally.

Article 2 of Protocol No. 1 (P1-2) provides 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 has first examined the applicant's rights as a

parent under the second sentence of Article 2 of Protocol No. 1 (P1-2). The

Commission leaves open the question whether the applicant's

disagreement with the analysis made by the education authorities of

the child's special educational needs could be said to be based on

deep-founded religious or philosophical convictions, rather than on

natural hesitations about sending his child away to boarding school.

However, 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, handicapped 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 handicapped 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 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 child is now

15 1/2 years of age and the expert opinion of the education authorities

is that he has complex difficulties in learning, communication and

behaviour which require costly specialised tuition unavailable

locally. The education authorities have proposed such tuition in a

specialised boarding school far from the family home, but, given

school holidays, this does not entail a complete separation of the

family. Moreover the placement at the boarding school is not

necessarily a permanent solution as the child's progress will be kept

under regular review.

In these circumstances, 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 the

application is manifestly ill-founded within the meaning of Article 27

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

For these reasons, the Commission

DECLARES THE APPLICATION INADMISSIBLE.

Secretary to the Commission Acting President of the Commission

(H.C. KRÜGER) (J.A. FROWEIN)

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NORTHCOTT v. THE UNITED KINGDOM

NORTHCOTT v. THE UNITED KINGDOM

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