Canon law, schools admission and the state

On 28 August 2013, under section 88H(4) School Standards and Framework Act 1998, the Office of the Schools Adjudicator partially upheld the British Humanist Association’s objection to the admission arrangements for the London Oratory School determined by the Board of Governors for the London Oratory School Trust, here.   In addition, the adjudicator held that in relation section 88I(5) of the Act, there were matters within the determination that did not conform with the requirements relating to admission arrangements, and under the School Admissions Code, the admission authority was required to revise its admission arrangements as quickly as possible.

The objections considered followed an earlier determination relating to these matters on 12 December 2012, but the adjudicator held that neither these nor matters concerning the standing of the objector prevent him from investigating the current objection made under section 88H[1], or from looking at the wider arrangements under section 88I of the Act.

Adjudication

Under the terms of the academy agreement between the London Oratory School and the Secretary of State for Education, the admissions policy and arrangements are required to be in accordance with admissions law as it applies to maintained schools.  These arrangements were determined by the governing body, which is the admission authority for the academy school.

The objections were primarily concerned with the criterion used by the school to judge religious observance which required service within a Catholic Parish or the wider Catholic Church and whether the school had made it sufficiently clear that children who are not Catholics could be admitted to the school if places were available.

With regard to “service”, the school argued that the criterion used was fair because it was “simply measuring what Canon Law requires practising Catholics to do”, although the diocese held that practising Catholics could be equally conscientious and choose to meet their obligations in other ways but in so doing would not meet the school’s criterion.  The diocese additionally made the points, [para. 32] that:

  • “[i]t is within the proper competence of the Diocesan Bishop, not the governing body to determine who is, and who is not, to be regarded as a ‘practising Catholic’; and
  • Whilst such a criterion may demonstrate that certain parents and children are conscientiously practising their Catholic faith, it is not an appropriate measure of Catholic practice for admissions purposes, because it would disadvantage other, equally conscientious Catholic families, who legitimately choose to fulfil their same obligations in different ways.”

Whilst the adjudicator was satisfied that the school had stated that it could admit a child who is not a Catholic if a space was available, he upheld this part of the objection since this statement was only contained in a footnote and was not made clearly enough.  Para.2.8 of the Code states that if spaces are available then any child must be admitted and oversubscription criteria (including faith criteria) will not be applied.

Although the objection that the school did not “have regard to” Diocesan Guidance, as required in paragraph 1.38 of the Code, was not upheld, this was on the basis of the school resorting to semantics, i.e. “have regard to” meaning “to take account of but not necessarily to follow”, which does not seem to be within the spirit of the provisions, or the comments of the adjudicator in the case of the Cardinal Vaughan school, (below).  A fourth seemingly trivial quibble concerning the web site was upheld, but has since been rectified.

The adjudicator additionally looked at the overall admission arrangements of the school and raised a number of specific issues that appear to breach the Code, paragraphs 51 to 57, including the complexity of the points system used, a central feature in the Cardinal Vaughan school adjudication.

Comment

The OSA’s ruling received mixed, though predictable, reviews with those in the Catholic Herald (particularly in the subsequent comments), here and those in a British Humanist Association article here (which contains a number of useful links) representing both ends of the spectrum.  In the case of Cardinal Vaughan Memorial School, the Director of Education for the Diocese of Westminster, is reported as saying:

“ . . . . . . [r]eferring the school’s arrangements to the Schools Adjudicator was done as a matter of last resort when it became clear that the school was breaching important principles of the Schools Admissions Code and adopting admission requirements running contrary to the interests of the Catholic community as a whole,”

and the adjudicator in this cases said [at 101 and 102]:

“. . . . . . for the most part I believe that the diocese’s general approach to the appropriate use of oversubscription criteria based on membership and practice of the Catholic faith is consistent with both the spirit and the letter of the Code.

I also recognise that, whilst it does not have an absolute right in law to enforce its will upon a school, the Diocese’s role as the designated religious authority gives its views considerable weight in matters of church membership and practice.  The school must have regard to the advice it is given and follow it unless it has justification not to do so.”

An analysis of the dynamics between the Westminster diocese, parents and school is beyond the scope of this blog, although a flavour may be gained in Peter Stanford’s article “Parent power”, Catholic Herald, 16 July 2011, (£), and the subsequent correspondence, here.  However, it is clear that all parties may learn something from these two adjudications, and perhaps should consider that whilst the BHA’s complaint was based upon four issues, in his consideration of the overall admission arrangements, the adjudicator identified a number of others that were in apparent breach of the Code, including the wording and presentation of the admissions arrangements for which the adjudicator “was unable to reach [an] understanding by simply reading the arrangements and related footnotes”.


[1] Under changes brought by the Education Act 2011, any person or body may to object to the schools adjudicator about admissions arrangements, including those for Academies, [Section 88H of the SSFA 1998, as amended by section 64 of the Education Act 2011]. This has removed the need for persons who can object to be prescribed in regulations.

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