In R (Isherwood & Ors) v Welsh Ministers [2022] EWHC 3331 (Admin), the issues were the legality of guidance documents issued under the Curriculum and Assessment (Wales) Act 2021 and whether or not parents had a right to withdraw children from mandatory relationships and sexuality education (“RSE”)

The arguments

The claimants argued that there was a common law right of “excusal” – a right to withdraw their children from lessons – and that statements in the relevant guidance to the effect that the right of excusal had been removed were wrong in law. Further, they contended that the statutory right of excusal under the Education Act 1996 had not been appropriately abrogated by the 2021 Act and that the absence of the right was a breach of Article 2 Protocol 1 ECHR (Right to education). They also contended that the relevant guidance was in breach of Article 9.

The judgment

The claim was dismissed on all grounds. Steyn J rejected the existence of a common law right of excusal and held that the statutory right of excusal in section 405 of the Education Act 1996 (Exemption from sex education) had been abrogated by the 2021 Act. Further, she held that the claim in relation to A2P1 was misdirected because it was aimed at the guidance issued under the 2021 Act and not at the Act itself – and in any event, the guidance did not constitute a breach of A2P1:

“In my judgment, the content of the Code and the Guidance is consistent with the requirement to take care to ensure that RSE teaching is conveyed in an objective critical and pluralistic manner, and does not breach the prohibition on indoctrination. There is nothing in the Code or the Guidance that authorises or positively approves teaching that advocates or promotes any particular identity or sexual lifestyle over another, or that encourages children to self-identify in a particular way…” [202].

“I reject the contention that any of the statements in the Code or the Guidance to which the claimants object will inevitably result in teaching that is contrary to A2P1 in an identifiable, material or legally significant number of cases…” [203]

“In my judgment, both the Code and the Guidance reflect the general spirit of the Convention as an instrument designed to maintain and promote the ideals and values of a modern liberal democracy, including the values of tolerance, respect and equality. These documents are clearly capable of being implemented in a way that is fully compatible with the second sentence of A2P1. The contention that they fall foul of the prohibition against indoctrination is misconceived [213].

As to the claim relating to Article 9, the ECtHR had consistently held that, in the area of education and teaching, A2P1 was in principle a lex specialis in relation to Article 9 and, as a consequence, no separate issue arose under that Article. In any event, she agreed with the Welsh Ministers that the applicable test would be the same as for A2P1 and that the ground of claim under Article 9 fell to be dismissed in light of her rejection of the A2P1 ground of claim [219 & 220].