AS TO THE ADMISSIBILITY OF

Application No. 14135/88

by P.D. and L.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

                     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 P. and L. D. against the United Kingdom and registered on 23

August 1988 under file No. 14135/88;

        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, both

born in 1948 and resident in R.  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 facts of the present case, as submitted by the applicants,

may be summarised as follows:

        The applicants have a daughter, Lydia, born in 1979, who

suffered brain damage at the foetal stage.  She therefore developed

slowly.

        When the child was three and a half years old the applicants

sent her to a special nursery school for children with early learning

difficulties.  However they did not wish this to become a permanent

placement because they believe that she should be educated with able

children for stimulation of the kind she had in a mixed ability group

of children with whom she played since the age of two and from whose

company she greatly benefitted (attested by child psychologists).  In

July 1984 the local education authority (LEA) commenced an assessment

of Lydia, pursuant to sections 5 and 7 of the Education Act 1981, and

in March 1985 issued the following statutory "statement of special

educational needs" recommending her continued placement at a local

special segregated school for disabled children:

        "Lydia has severely delayed development.  Her convulsions

        are under control but her concentration span is short.

        She has a mild hearing loss and her receptive and expressive

        skills are delayed.  Although her motor development is

        delayed some progress has been made, Lydia therefore needs

        considerable individual attention."  She needs "a very small

        protective teaching group where all learning is carefully

        structured and appropriate for a child with severe general

        development delay."  This could be provided by "a day

        school making specific provision for children with severe

        general development delay.  The nearest appropriate school

        is the B..  Day Special School ...  R."

        The LEA's educational psychologist found that when Lydia

was 4 years and 6 months old she had a developmental age of about

12 months (Piaget Sensori Motor Scale of Development), and was still

at the pre-language stage, with a social age of 1 year 10 months

(Vineland Social Maturity Scale).

        The applicants unsuccessfully appealed against the assessment

to a local appeal committee, 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 was lodged on 8 September

1986 and rejected a year later on 23 September 1987.

        Since then the applicants have sought to negotiate with the

LEA to secure an alternative form of education for Lydia other than in

a segregated special 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 Lydia 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 inadequate for Lydia's needs and the rights of all

three of them to have Lydia educated in an environment which allow her

maximum potential for social and intellectual development.  Moreover,

the family are currently in dispute with the LEA about the appropriate

resources at the mainstream school for Lydia'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.  This has not been met in the present case even though, the

applicants state, the headmistress of the normal local school

indicated that she would be happy to offer Lydia a full-time place.

The applicants hold deep philosophical convictions about the type of

schooling best suited to their daughter's needs and believe that

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

her due to its overall fundamental direction.  The assumptions about

Lydia's learning potential underlying segregated education are wholly

rejected by the applicants.  The applicants recognise that Lydia

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 early learning

difficulties they have fewer educational options to choose from than

parents of normal children.  Lydia'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 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 Lydia with

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

handled Lydia'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

daughter, Lydia, 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 Lydia could be said to be based on deep-founded

philosophical convictions rather than a difference of view as to the

best way of providing Lydia 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 (P1-2) 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 (P1-2) "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 (P1-2) 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 Lydia 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 Lydia 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

Lydia'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

Lydia 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 Lydia 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 Lydia 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 Lydia'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 applicants have complained that the one year delay taken

by the Secretary of State for Education to review Lydia'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)