FOURTH SECTION

DECISION

Application no . 54781/07 V .O. against the United Kingdom

The European Court of Human Rights (Fourth Section), sitting on 1 8 September 2012 as a Chamber composed of:

Lech Garlicki , President, David Thór Björgvinsson , Nicolas Bratza , Päivi Hirvelä , Ledi Bianku , Nebojša Vučinić , Vincent A. D e Gaetano , judges, and Lawrence Early , Section Registrar ,

Having regard to the above application lodged on 19 November 2007,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,

Having deliberated, decides as follows:

THE FACTS

1. The applicant was represented by Mr K. McManamon of Levenes Solicitors, a lawyer practising in London . The United Kingdom Government (“the Government”) were represented by their Agent, Mr J. Grainger of the Foreign and Commonwealth Office.

A. The circumstances of the case

2. The facts of the case, as submitted by the parties, may be summarised as follows.

3. The applicant was brought up by his mother, who is of Kurdish origin and speaks little English. He was 15 at the time of the events in question.

4. Between 2002 and 2007 the applicant was a registered pupil at Park View Academy , a State secondary school in Haringey, North London . The 2006-7 academic year was his final year of compulsory schooling. In the summer of 2007 he was due to take GCSE examinations in nine subjects as well as a GNVQ (vocational qualification) in Business Studies.

5. The applicant did not have a history of being a disruptive pupil. However, on 14 June 2006 he assaulted the school ’ s canteen manager. He was seen by her to be pushing his way into the canteen queue and, when she told him to stop, he abused her verbally. Despite attempts by several teachers to calm him down, the applicant knocked a sandwich out of the canteen manager ’ s hand and then grabbed her wrist and twisted it. The applicant caused injury to her wrist which required hospital treatment and two weeks ’ sick leave from work.

6. The school authorities took the view that the level of violence used and threatened by the applicant was extremely intimidating. The Headteacher decided that the applicant should be permanently excluded from the school. This decision was approved by the Governing Body and he was so notified in a letter dated 27 June 2006.

7. The applicant exercised his statutory right of appeal to the Independent Appeal Panel (IAP). The hearing took place on 28 September 2006. The IAP considered written and oral evidence from the applicant and other witnesses. It did not, however, hear evidence concerning the views of the teaching staff and their unions as to whether it would be possible to reintegrate the applicant.

8. The IAP delivered its decision by a letter to the applicant ’ s mother dated 3 October 2006, as follows:

“After careful consideration of your representations both oral and written and those of the Park View Academy School and in the light of the available evidence, the Panel concluded to direct [the applicant ’ s] reinstatement, with a view to a staggered reinstatement, with [the applicant] back in full-time education by half term. You are advised to contact the Headteacher of Park View Academy to arrange an appointment.

In coming to their decision, the Panel accepted that:

â–ª [The applicant] did what he was alleged to have done and this was supported by the evidence presented both by the school and [his own] admission.

The Panel then took into consideration the guidance from the Secretary of State before coming to their decision. In this instance, the panel felt there were exceptional circumstances and after considering all the relevant factors, that permanent exclusion was not the appropriate sanction. The reasons for the panel decision were as follows:

â–ª [The applicant] previously had a relatively unblemished record;

▪ [The applicant] behaved “out of character” and possible medical factors could have contributed to his behaviour;

▪ Took into consideration the stage in [the applicant ’ s] education.

The Panel then considered the broader interests of other pupils and staff in school, as well as those of [the applicant] and ... though it was reasonable of the school to consider permanent exclusion, it was felt that long term fixed exclusion would have been the most appropriate sanction in this instance.

In conclusion, the Panel endorsed your suggestion that [the applicant] be provided with a packed lunch in future.”

9. The Headteacher did not agree with the IAP ’ s decision but he informed the staff at the school that he was under a legal duty to provide the applicant with an education. On 16 October 2006 the representative at the school of the National Union of Teachers (NUT), of which the majority of the teaching staff were members, sent an e-mail to all members of staff at the school informing them that the NUT members had decided to call for “a ballot not to teach or supervise the student who was reinstated on appeal after assaulting a member of staff”. The Headteacher was also informed by the other teachers ’ union represented at the school that its members would vote in favour of industrial action if asked to teach the applicant. The Headteacher therefore formed the view that if he directed the teaching staff to accept the applicant back into the class-rooms they would vote in favour of industrial action and refuse to teach him. He therefore informed the applicant ’ s mother that, if the applicant wanted to continue to be educated at the school, this would take place in a room on his own. In the alternative, he could attend classes in GCSE Maths and English at a local further education college, with a personal tutor to teach him Business Studies.

10. Initially, the offer of college provision was refused because the applicant wished to continue to be educated at his school. The family enlisted the help of a local councillor to seek to persuade the school to take him back, but the representatives of the NUT refused to talk to him.

11. Finally, the applicant decided to accept the limited tuition being offered at the further education college, because he felt that being taught in isolation at the school, without being allowed any contact with his friends, would make him “feel like a criminal”. At the college he received two hours ’ tuition a day in Maths and English Literature. Until the end of April 2007 he did not receive any teaching in any of his other GCSE or GNVQ subjects, nor in any of the other national curriculum subjects such as physical education, other than two weeks of coaching in Science and one and a half weeks in Business Studies provided by external tutors who taught him in isolation in a room at the school.

12. In January 2007 the applicant issued proceedings for judicial review of the school ’ s decision. On 12 February 2007 representatives of the NUT wrote to the Director of Children ’ s Services at Haringey indicating that they intended to hold a ballot of their members at the school. On 9 March the Headteacher and Chairman of the School Governors were informed that, following a ballot, the NUT would commence industrial action on 16 March 2007. This would initially take the form of a refusal to teach, supervise or otherwise work with the applicant, but could escalate to a strike if disciplinary measures were taken against an NUT member as a result.

13. The High Court gave judgment on 15 March 2007. The applicant had argued, inter alia , that the offer to teach him in isolation did not amount to “reinstatement”; that the Headteacher had been too greatly influenced by the threat of industrial action; and that the school owed him a statutory duty, which it had not met, to provide him with tuition in the national curriculum subjects in which he had planned to take GCSEs. Burton J held, inter alia , that the position taken by the NUT had to be respected, unless it could be shown to be a sham, and that the “reinstatement” required by the IAP ’ s decision did not have to include reinstatement to the class-room as before. During the course of the proceedings the school had given an undertaking to use its best endeavours, without using NUT teachers, to supply the applicant with tuition in his other GCSE subjects, and in the light of this undertaking the judge did not consider it necessary to decide whether the applicant was owed a statutory duty. He was “ unpersuaded that the reaction of the Headteacher to the industrial discontent among the majority of the teaching staff was unreasonable or disproportionate” and concluded:

“In my judgment the maintenance of the regime must be regularly tested, and its reasonableness and the reasonableness of its continu ation depend upon the facts. On the evidence before me the imposition of the regime was reasonable in all the circumstances. It might well have been that there would have come a time when it became unreasonable to continue that regime. However, it is quite plain that the industrial difficulties which the school faces preventing complete reinstatement continue as of now. I conclude that the imposition of the regime was not unlawful, and that, accompanied by the without prejudice undertaking, the continuation remains lawful.”

14. Following this judgment and the undertaking given during the proceedings, from 23 April to 16 May 2007 the applicant received four hours tuition a week at the school, using external tutors, in Science, Business studies, English Literature and Media Studies. The applicant sat GCSE and GNVQ examinations in May 2007. He failed to achieve a grade C or higher in any of them and was not, therefore, able to continue to study for A Levels as he had hoped. In addition to the academic consequences, the applicant had no contact with his former teachers or fellow pupils at the school for the entirety of his final year. He was not permitted to take part in any extra-curricular activities or to mix with pupils during breaks.

15. The applicant appealed to the Court of Appeal. His appeal was dismissed by a judgment dated 22 May 2007 ( O. v. The Governing Body of Park View Academy and Another [2007] EWCA Civ 592). Carnwath LJ commenced by observing:

“1. This is a troubling case, as any school exclusion case is likely to be. There are particular factors here which give rise to concern. The applicant ... has been brought up by his mother alone and she speaks little English. He has clearly had a number of hurdles to overcome. He is now in Year 11, leading to GCSE exams this summer. He is currently in course of taking, as I understand it, 9 GCSE subjects. He has generally had a good record. On any view, it is tragic that his education has been disrupted at this critical period as a result of what everyone agrees was a one-off and uncharacteristic incident.

2. However, the function of this court is very limited and is concerned simply with any legal defects in the school ’ s response to the problem. ... ”

16. He continued by finding that the case could not be distinguished from Re L (see Relevant domestic law, below). In that case the House of Lords held that the term “reinstate” in the applicable legislation connoted restoration of the legal relationship between the pupil and the school community. Once the pupil had been reinstated, the management of his further educational regime had to be consistent with his status as a pupil of the school and was a question of reasonableness and proportionality on the facts of each case. He observed that the House of Lords in Re L had made clear that the threat of industrial action was a relevant matter which the Headteacher was entitled to take into account and he concluded that:

“Short of perversity in response to that threat, I see no basis on which it can be said to give rise to an error of law”.

17. He considered that the question whether the school owed the applicant a duty under the Education Act 2002 to provide tuition as required by the national curriculum was “potentially important and ... far from straightforward”. However, he held that Burton J, in the exercise of his discretion, had been entitled to take the view that it was better to accept the undertaking offered by the school as being the most practical way forward:

“That being the case, it would be wrong for this court to interfere unless the judge ’ s approach was outside the bounds of his discretion. Although other judges might have taken a different view, I cannot see error of principle in his approach”.

18. On 22 May 2007 the Court of Appeal refused the applicant leave to appeal to the House of Lords.

B. Relevant domestic law and practice

1. Appeals against exclusion

19. The Education Act 2002 (section 52) and the Education (Pupil Exclusions and Appeals) (Maintained Schools) (England) Regulations 2002 (“the Exclusion Regulations”) regulation 6(1) provide that Local Education Authorities must set up independent appeal panels (“ IAPs ) to enable the parents of children permanently excluded from maintained schools to appeal against that exclusion.

20. Pursuant to regulation 6(6) of the Exclusion Regulations, following an appeal, the IAP may: (a) uphold the exclusion; (b) direct that the pupil is to be reinstated (either immediately or by a date specified in the direction); or (c) decide that because of exceptional circumstances or for other reasons it is not practical to give a direction requiring his reinstatement, but that it would otherwise have been appropriate to give such a direction.

21. Pursuant to regulation 6(5), the decision of an IAP to reinstate a pupil is binding on the Governors of the school in question, the school ’ s Headteacher and the applicable Local Education Authority.

22. The constitution of IAPs is set out in the Schedule of the Exclusion Regulations 2002. Pursuant to paragraph 2, an IAP must have either three or five members. One member must be a lay member with no experience of managing a school. If it is a three-member IAP, the other members must be: one person who is, or has been in the past five years, the Headteacher of a maintained school and one person who is, or has been in the past six years, the Governor of a maintained school. If the panel is made up of five members, there are two Headteachers and two Governors on the panel as well as the lay member. The consequence is that the IAP always has a majority of members who have experience in matters of school discipline and have been, or are, involved in the management of a school.

2. The decisions of the House of Lords in R v Governors of J School ex parte L and P v National Association of Schoolmasters/Union of Women Teachers

23. In R v Governors of J School ex p L [2003] 2 AC 633, the House of Lords held that where an IAP ordered the “reinstatement” of a permanently excluded pupil, that pupil could still be regarded as “reinstated” where he was effectively permitted no contact with the rest of the school community for the remainder of his time at the school and was taught in isolation by a retired teacher. The House of Lords held, by a three to two majority, that a school which treated a pupil in this way following an order of an IAP had complied with the order to “reinstate” the pupil even if it made no effort to reintegrate him. In that case, the time spent in isolation was the last 30 days of the school year. In the L case, like the applicant ’ s, the reason that the pupil in question was taught in isolation was that the teachers had threatened industrial action. Although some members of the House of Lords were strongly critical of the teachers, the view of the majority was that, given the effect on the rest of the school of the teachers striking, it was a rational managerial decision for Headteacher and Governors to educate the pupil in question for 30 days in isolation from the rest of the school.

24. On the same day as judgment was handed down in the L case, the House of Lords handed down a judgment in P v National Association of Schoolmasters/Union of Women Teachers [2003] 2 AC 663. It concerned an application brought by a pupil under section 235A of the Trade Union and Labour Relations (Consolidation) Act 1992 (“TULCRA”). Pursuant to section 235A, an individual who is affected by unlawful industrial action may bring a claim in the High Court against the union or person that had induced others to take part in the industrial action. The claimant in the P case was a pupil whom teaching unions had refused to teach. He argued that the refusal constituted “unlawful industrial action” as it was not part of a “trade dispute” within the meaning of TULCRA section 244 and therefore was not protected pursuant to section 219. The House of Lords rejected the claim. It held that there was a dispute between employees and employers which related to the job the employees were required to do, and/or a dispute as to the terms and conditions on which the teachers were employed. The dispute was, the House of Lords concluded, a “trade dispute” within the meaning of section 244. It was, therefore, not unlawful.

3. The Human Rights Act 1998

25. The HRA incorporates the Convention into United Kingdom law. Section 6(1) provides that it is unlawful for a public authority to act in a way which is incompatible with a Convention right, except where it is constrained to act in that way as a result of primary legislation which cannot be interpreted so as to be compatible with Convention rights. Under section 7(1), a person claiming that a public authority has acted unlawfully under section 6(1) may bring proceedings against it in the appropriate court or rely on the Convention right in any legal proceedings.

26. Pursuant to section 8 of the HRA 1998, in relation to any act (or proposed act) of a public authority which the court finds is (or would be) unlawful, it may grant such relief or remedy, or make such order, within its powers as it considers just and appropriate.

COMPLAINTS

27. The applicant complained that the severe disruption to his education with no meaningful procedure by which he could challenge it violated his rights under Article 8 of the Convention and Article 2 of Protocol No. 1, both read alone and together with Article 13.

THE LAW

28. The Government submitted that the applicant had failed to exhaust domestic remedies, as required by Article 35 § 1 of the Convention, in respect of all of his Convention complaints because he did not raise them in the judicial review proceedings which he brought against the school.

29. The Court recalls that the purpose of Article 35 § 1 is to afford the Contracting States the opportunity of preventing or putting right the violations alleged against them before those allegations are submitted to it (see, inter alia , Civet v. France [GC], no. 29340/95, § 41, ECHR 1999-VI). Whereas Article 35 § 1 of the Convention must be applied with some degree of flexibility and without excessive formalism, it does not require merely that applications should be made to the appropriate domestic courts and that use should be made of effective remedies designed to challenge decisions already given. It normally requires also that the complaints intended to be brought subsequently before the Court should have been made to those same courts, at least in substance and in compliance with the formal requirements and time-limits laid down in domestic law (see, among other authorities, Cardot v. France , 19 March 1991, § 34, Series A no. 200, and Elçi and Others v. Turkey , nos. 23145/93 and 25091/94, §§ 604 and 605, 13 November 2003).

30. In the present case the Court observes that the question of exhaustion of domestic remedies is inextricably linked to the applicant ’ s complaint under Article 13 of the Convention. The Court will therefore begin its examination of the present application by considering whether or not an effective domestic remedy existed in respect of the applicant ’ s Convention complaints.

31. T he Court recalls that where the Government claim non-exhaustion they must satisfy the Court that the remedy proposed was an effective one available in theory and in practice at the relevant time, that is to say, that it was accessible, was capable of providing redress in respect of the applicant ’ s complaints and offered reasonable prospects of success (see, inter alia , Akdivar and Others v. Turkey , 16 September 1996, § 68, Reports of Judgments and Decisions 1996 ‑ IV; and Sejdovic v. Italy [GC], no. 56581/00, § 46, ECHR 2006-II).

32. In the present case the Government have asserted that it would have been open to the applicant, pursuant to sections 6 and 7 of the Human Rights Act 1998, to have included in his grounds for seeking judicial review a complaint that the education authority had acted in violation of his rights under Article 2 of Protocol No. 1 and Article 8 in failing properly to reinstate him to the school. Had the Administrative Court found that the actions of the public authority were unlawful, it could have granted such relief or remedy, including an award of damages, or made such order, within its powers as it considered just and appropriate.

33. Alternatively, the Government submitted that the applicant could have joined the two trade unions to the judicial review proceedings as interested parties, which would have enabled the domestic courts to receive evidence from the unions relevant to their reasons for refusing to teach the applicant.

34. The applicant, however, submitted that the critical aspect of his claim was that he had no legal means to challenge the decision of the teachers at his school to refuse to teach him and it was the lack of such procedures which breached his rights under Article 8 and Article 2 of Protocol No. 1 to the Convention, read alone and together with Article 13.

35. In particular, he complained that the right of appeal to the IAP was futile because the teachers at the school were effectively able to undermine the decision to reinstate him by refusing to teach him. Moreover, the decision of the teachers and the unions was not open to challenge; in fact, he was not even able to find out why the decision had been taken.

36. Finally, the applicant submitted that while he could have raised his complaints in the course of the judicial review proceedings, this would have been entirely sterile and academic because judicial review was merely the process by which claims were brought and did not create claims which did not exist.

37. While the Court shares the applicant ’ s concerns about the ability of the teachers and the unions to effectively undermine the decision of the IAP to reinstate the applicant, it is not persuaded that raising these complaints in the proceedings before the Administrative Court would have been “entirely sterile and academic”. In particular, it notes that had the Administrative Court found a breach of the applicant ’ s Convention rights, it could have granted such relief or remedy, or made such order, within its powers as it considered just and appropriate. In particular, it could have ordered the applicant ’ s re-instatement or awarded him damages in respect of any loss.

38. Moreover, bearing in mind that at the heart of the applicant ’ s complaints is the fact that he was unable to ascertain the reasons for the teachers ’ refusal to teach him, the Court does not consider that he has adequately addressed the Government ’ s submission that he could have joined the unions as interested parties, thereby enabling the domestic courts to receive evidence from the unions relevant to their reasons for their decision.

39. Consequently, the Court considers that an effective remedy existed in respect of the applicant ’ s Convention complaints.

40. Although it is clear that the applicant did not directly raise his Convention complaints in the domestic proceedings, the Court recalls that it was not necessary for him to do so as long as the issue was raised implicitly, or in substance ( Castells v. Spain , no. 11798/85, judgment of 23 April 1992, § 32; Ahmet Sadik v. Greece , no. 18877/91, judgment of 15 November 1996, § 33; Fressoz and Roire v. France , no. 291 83/95, judgment of 21 January 1999, § 38; Azinas v. Cyprus , [GC] no. 56679/00, ECHR 2004 –, §§ 40-41). The Court must, therefore, consider whether the applicant raised the substance of his complaints in the course of the judicial review proceedings.

41. It notes that in Ali v. the United Kingdom , no. 40385/06 , § 53, 11 January 2011 the Court held that although the right to education might be subject to limitations, and while Contracting States enjoy a certain margin of appreciation in the sphere of Article 2 of Protocol No. 1, any restrictions on the right to education must not curtail the right so as to impair its very essence and deprive it of its effectiveness. In practice, therefore, Article 2 of Protocol No. 1 requires that any restrictions are foreseeable for those concerned, pursue a legitimate aim, and that a reasonable relationship of proportionality exists between the means employed and the aim sought to be achieved.

42. In the present case the applicant applied for leave to judicially review the education authority ’ s perceived failure to comply with the order of the IAP to reinstate him. Before the Administrative Court , his complaints were effectively twofold: that he was not sufficiently re-instated pursuant to the binding order of the IAP, and that the school had failed to comply with its requirements under the National Curriculum. He appealed to the Court of Appeal on four grounds: first, that he was not re-instated within the meaning of the 2002 Act; secondly, that the judge had misread the House of Lords ’ guidance in Ex Parte L ; thirdly, that too much weight had been put by the Headteacher on the alleged threat of disruption by the NUT; and fourthly, that there was a failure to provide tuition in accordance with the National Curriculum.

43. Consequently, the Administrative Court Judge noted that the fundamental question before him was whether or not Ex Parte L could be distinguished from the applicant ’ s case. Likewise, the questions before the Court of Appeal also primarily concerned the correct interpretation of Ex Parte L , in order to ascertain whether the Administrative Court Judge had acted outside the bounds of his discretion in reaching the conclusions that he did.

44. The domestic courts were not, therefore, called upon to decide whether or not any restrictions on the applicant ’ s education were foreseeable, whether they pursued a legitimate aim, or whether they were proportionate in the circumstances. More importantly, the question of whether or not the very essence of the applicant ’ s right to education had been impaired was not considered by the domestic courts. In comparison, the Court notes that in Ali v. the United Kingdom the applicant complained under Article 2 of Protocol No. 1 before the domestic courts and, as a consequence, the Administrative Court, the Court of Appeal and the House of Lords were all required to consider whether or not his exclusion amounted to a denial of his Convention right to education.

45. With regard to the applicant ’ s complaints under Article 8 of the Convention, the Court observes that the Administrative Court was also not called upon to consider whether or not his exclusion from school interfered with his right to respect for his private life, or whether any such interference was in pursuit of a legitimate aim and was necessary in a democratic society.

46. The Court therefore concludes that the substance of the applicant ’ s complaints under Article 2 of Protocol No. 1 and Article 8 has not been raised before the domestic courts.

47. Consequently , the Court finds the applicant ’ s complaints under these Articles to be inadmissible for failure to exhaust domestic remedies in accordance with Article 35 §§ 1 and 4 of the Convention.

48. It is not necessary for the Court to consider whether the complaints were arguable for the purposes of Article 13 of the Convention, because, for the reasons set out in paragraphs 37 – 39 of this decision, it finds that the applicant had an effective domestic remedy in respect of his Convention complaints. Consequently, the Court finds the applicant ’ s complaints under Article 2 of Protocol No. 1 and Article 8 read together with Article 13 to be inadmissible as manifestly ill-founded pursuant to Article 35 §§ 3(a) and 4 of the Convention.

For these reasons, the Court unanimously

Declares the application inadmissible.

Lawrence Early Lech Garlicki Registrar President