JR87, Re Application for Judicial Review

Factual and Procedural Background

This case concerns judicial review proceedings brought by a child (Child Appellant) and her father (Parent Appellant) challenging the legality of religious education and collective worship at a state-funded primary school (the School) in The State.

The Child Appellant, now 11, attended the School (a controlled grant-aided primary school with a nursery) from 2017 until June 2021, covering years P1–P3 (ages four to seven). She then moved to another controlled primary school. The Child Appellant’s parents are non‑religious, broadly humanist in outlook. They do not wish her to be raised as a Christian and object to her being taught to assume Christianity as absolute truth, especially at an age before her critical faculties are developed. They nevertheless affirm that they support religious education in schools, provided it is delivered in an objective, critical, and pluralistic manner.

The School follows a statutory core syllabus for religious education specified by a Government Department responsible for education. Religious education and collective worship at the School are predominantly Christian and based on this core syllabus. Collective worship mainly takes place at school assemblies and includes visits and addresses by Christian ministers and representatives of Christian organisations. Some teachers also say simple prayers (e.g. before snack-time) at their discretion. The School has not been inspected in respect of religious education or collective worship, and the Government Department does not systematically inspect or know how religious education and collective worship are delivered in individual grant‑aided schools.

The legislative framework requires all grant-aided schools (other than nursery schools) to provide religious education and daily collective worship. Controlled schools such as the School must provide undenominational Christian-based religious education and non‑denominational collective worship. All grant‑aided schools must include religious education in accordance with the core syllabus. Parents have a statutory right to withdraw their children, wholly or partly, from religious education and/or collective worship upon request, without needing to give reasons.

The Child Appellant’s parents became concerned that, by P2, she had absorbed a specifically Christian worldview inconsistent with their beliefs; for example, she believed that God made the world and repeated a prayer learned at school at snack time. By letter dated 30 May 2019, they raised concerns with the School about religious education and collective worship. They expressed discomfort at having to disclose their own non‑religious beliefs but felt compelled to do so. They recognised that they could withdraw their daughter but considered that withdrawal was not an adequate solution and that the underlying problem was the lack of religious and belief diversity in the education system. They requested information about what would happen if she were withdrawn, including where she would go, what she would do, and who would be responsible for her welfare.

By letter of 21 June 2019, the School stated it would continue providing religious education and collective worship as before, in line with its understanding of the legislation. It signposted the parental right of withdrawal, but insisted that “prior” to any withdrawal there would need to be discussions with the parents about alternative educational provisions for the Child Appellant. No pre‑existing alternative arrangements were in place. Attempts to arrange a meeting broke down over whether it should be “without prejudice” and whether the parents’ solicitor should attend. The School instead supplied outline options, acknowledging that a detailed plan could only be finalised after discussions and was constrained by available resources. One proposed option was for the Child Appellant to stay in the classroom during religious education but do “agreed activities” with assistance, requiring ongoing discussions with the parents about content on a lesson‑by‑lesson basis.

The parents ultimately did not exercise the withdrawal right. Over the six years of the Principal’s tenure, only two other children had ever been withdrawn from religious education and collective worship, and each withdrawal was short-lived. If the Child Appellant had been withdrawn, she would have been the only pupil out of approximately 250–275 not attending religious education and collective worship. The parents cited several reasons for not withdrawing her: risks of stigma, bullying, isolation, confusion or distress from being singled out, and repeated “outing” of her and her family as non‑Christian within a small school community; discomfort at being forced to exclude her from schooling they considered should itself be lawful; concerns that they would be compelled to disclose intimate aspects of their non‑religious convictions and be seen as “difficult or awkward parents”; and the practical burden and deterrent effect of having to co‑devise alternative arrangements with the School in the absence of any statutory framework or extra resources.

The judicial review claim was brought against the Government Department. In the High Court, the School’s Board of Governors (School Board) participated as a notice party. In the appellate courts, an educational stakeholder body (Intervener Council) representing several main Christian churches was permitted to intervene. In the Supreme Court, the School Board was joined as a respondent by operation of procedural rules.

The High Court allowed the judicial review ([2022] NIQB 53). It held that, because the School’s religious education and collective worship followed the core syllabus, they were not conveyed in an objective, critical, and pluralistic manner. The judge held that the statutory right of withdrawal did not prevent a breach of Article 2 of Protocol No 1 to the European Convention on Human Rights (A2P1) read with Article 9 ECHR. The judge found that exercising the withdrawal right placed an undue burden on parents, likely deterred them from seeking exclusion, and risked stigmatising their children. Following further submissions on relief, the judge refused to quash the subordinate legislation but declared that the teaching of religious education under the core syllabus and the arrangements for collective worship at the School had breached the rights of the Child Appellant and Parent Appellant under A2P1 read with Article 9.

On appeal, the Court of Appeal ([2024] NICA 34) upheld the High Court’s finding that religious education and collective worship at the School were not conveyed objectively, critically, and pluralistically. However, it disagreed with the High Court on the adequacy of the withdrawal right. It held that the existence of an unqualified statutory right for parents to withdraw their child meant the State was not pursuing the forbidden aim of indoctrination, and that fears of stigma or undue burden would not have materialised in practice. The Court of Appeal therefore allowed the Department’s appeal and dismissed the judicial review.

The Child Appellant and Parent Appellant sought permission to appeal to the Supreme Court. The Government Department opposed permission but sought permission to cross‑appeal. The Supreme Court granted permission to appeal to the Child Appellant and Parent Appellant. It refused the Department’s cross‑appeal on the ground that challenged the finding that the curriculum was not objective, critical, and pluralistic, but granted permission to cross‑appeal on the ground that the High Court had allegedly failed to separately analyse and determine the child’s and the parent’s claims. The present judgment resolves both the appeal and the cross‑appeal.

Legal Issues Presented

1. Whether the provision of religious education and collective worship at the School, which follows the mandatory core syllabus and does not include additional objective, critical, and pluralistic material, breaches the rights of the Child Appellant and Parent Appellant under A2P1 read with Article 9 ECHR, because it amounts to religious indoctrination.
2. Whether, under A2P1 as interpreted in the Strasbourg case law, there is any relevant distinction between:
   • (a) the State conveying information or knowledge in a manner that is not objective, critical, and pluralistic; and
   • (b) the State pursuing an aim of “indoctrination”;
   and, in particular, whether proof of a specific “aim” of indoctrination is required for a violation.
   • Whether the statutory right of parents to withdraw their child completely and without giving reasons from religious education and collective worship is sufficient to prevent a breach of A2P1 read with Article 9, or whether, in the circumstances found by the High Court, that right is capable of imposing an undue burden on parents, deterring its exercise, and risking stigmatisation of the child, thereby rendering the Convention rights theoretical and illusory.
   • Whether principles developed by the Strasbourg Court in relation to qualified or partial rights of withdrawal from religious education apply equally to an automatic, unqualified right of withdrawal.
   • On the Government Department’s cross‑appeal, whether A2P1 read with Article 9 protects only parental rights or also confers independent, enforceable rights on schoolchildren; and whether the High Court erred in not separately analysing the claims of the Parent Appellant and the Child Appellant.

Arguments of the Parties

Appellants’ Arguments (Child Appellant and Parent Appellant)

• The teaching of religious education and the conduct of collective worship at the School, based on the core syllabus and associated practices, were not objective, critical, and pluralistic and therefore amounted to religious indoctrination in violation of A2P1 read with Article 9.
• The parental right of withdrawal did not cure this breach because:
  • Exercising it would impose an undue burden on parents, including:
    • Pressure to disclose intimate aspects of their non‑religious philosophical convictions to the School.
    • The need to enter into negotiations with the School to design alternative arrangements in the absence of any prescribed framework or additional resources.
  • The right had a deterrent effect: reasonable parents would be dissuaded from invoking it by the prospect of conflict with school authorities, disclosure of sensitive personal beliefs, and the complexities of devising alternative provision.
  • Withdrawal would risk stigmatising the Child Appellant because she would be the only pupil out of some 250–275 to be withdrawn from religious education and collective worship, thereby:
    • Exposing her to bullying or social isolation.
    • Causing confusion or distress at being singled out and potentially perceived as being punished.
    • Repeatedly “outing” her and her family as non‑Christian year after year to peers, staff, and other parents in a small community where objections to the majority religion may be misunderstood.
  • It is unjust that a child should need to be excluded from school activities merely to secure a lawful education; the existence of a withdrawal mechanism cannot legitimise an otherwise unlawful, indoctrinating curriculum.
• Under the Strasbourg case law, particularly Folgerø and Papageorgiou, what matters is whether the overall system, including any withdrawal right, is capable of imposing an undue burden and deterring parents from exercising their rights; a requirement to demonstrate that harms “would have been realised in practice” is too stringent.
• There is no meaningful legal distinction, in the context of A2P1, between:
  • the State failing to ensure that education is conveyed objectively, critically, and pluralistically; and
  • the State pursuing an aim of indoctrination.
  The two concepts are different sides of the same coin; proving a separate subjective “aim” of indoctrination is not required.
  • The Department’s failure to inspect religious education and collective worship or provide guidance on alternative arrangements for withdrawn pupils reinforces the inadequacy of relying on the withdrawal right to protect Convention rights.
  • On the cross‑appeal, both parents and children are rights‑holders under A2P1 read with Article 9. The High Court did not err in considering their claims together and in finding that both the Parent Appellant’s and Child Appellant’s rights had been breached.

  Government Department and Supporting Respondents’ Arguments

  • In the Court of Appeal and in this court, the Government Department, supported by the School Board and the Intervener Council, contended that:
    • The High Court erred in concluding that religious education and collective worship at the School were not conveyed in an objective, critical, and pluralistic manner (although permission to cross‑appeal on this point was later refused by the Supreme Court, so that issue was ultimately not before this court).
    • There can be a distinction between conveying information in a non‑objective, non‑pluralistic manner and “indoctrination”; only the latter, involving pursuit of a forbidden aim, falls foul of A2P1.
    • A breach of A2P1 requires proof that the State has crossed the line into pursuing a specific aim of indoctrination; mere deficiencies in objectivity, critical thinking, or pluralism are insufficient.
    • The existence of an unqualified statutory right for parents to withdraw their child from religious education and collective worship, without having to provide reasons, ensures that the State is not pursuing indoctrination and is sufficient to avert any violation of A2P1.
    • The Appellants’ fears of stigma, undue burden, and deterrence were speculative; the Court of Appeal concluded that these concerns would not have been realised in practice.
  • The Department further argued that, under the Strasbourg jurisprudence, findings of Convention violations concerning withdrawal rights had arisen only in cases of partial or qualified exemptions, and not in systems offering full automatic exemption on request. It relied on the domestic “Ullah principle” to argue that national courts should not go further than the Strasbourg Court by holding an automatic withdrawal regime insufficient.
  • On the cross‑appeal, the Department submitted that:
    • The second sentence of A2P1 speaks expressly of “the right of parents”, and so the rights at issue are parental only.
    • The High Court should have dismissed the Child Appellant’s claim under A2P1 because, on a proper reading of the provision and the relevant jurisprudence, only parents are directly protected by the second sentence.
    • The High Court erred by not separately analysing the Parent Appellant’s and Child Appellant’s claims.

  Table of Precedents Cited

  Precedent	Rule or Principle Cited For	Application by the Court
  [2022] NIQB 53 (High Court decision in these proceedings)	Held that religious education and collective worship at the School, as delivered through the core syllabus, were not objective, critical, and pluralistic. Held that the statutory right of withdrawal did not prevent a breach of A2P1 read with Article 9 because of undue burden, deterrent effect, and risk of stigmatisation. Refused to quash subordinate legislation but granted a declaration that the Appellants’ rights had been breached.	The Supreme Court adopted the High Court’s conclusions that the teaching was not objective, critical, and pluralistic (the Department’s attempt to challenge this finding by cross‑appeal was refused permission). It reinstated the High Court’s declaration that the Appellants’ rights under A2P1 read with Article 9 were breached.
  [2024] NICA 34 (Court of Appeal decision in these proceedings)	Upheld the finding that the School’s religious education and collective worship were not objective, critical, and pluralistic. Held that the unqualified statutory withdrawal right meant the State was not pursuing a forbidden aim of indoctrination and found no breach of A2P1. Concluded that fears of stigmatisation and undue burden would not have been realised in practice.	The Supreme Court identified multiple legal and factual errors in the Court of Appeal’s reasoning, including its distinction between non‑objective teaching and indoctrination, its requirement of proof of a State “aim” of indoctrination, its approach to withdrawal rights, its application of the Ullah principle, and its departure from the High Court’s factual findings.
  Folgerø	Authoritative Grand Chamber statement of general principles on A2P1 as applied to religious education, including: The State’s duties to respect parents’ religious and philosophical convictions in education. The requirement that information and knowledge in the curriculum be conveyed in an objective, critical, and pluralistic manner. The prohibition on the State pursuing an aim of indoctrination. The importance of ensuring rights are practical and effective, not theoretical and illusory. The positive duty on authorities to take “utmost care” to prevent indoctrination, including through inspection and supervision. Detailed analysis of a system combining an “automatic” exemption for clearly religious activities with a partial exemption requiring parents to give reasons, and the capacity of such a system to impose an undue burden and deter parents.	The Supreme Court relied heavily on Folgerø to derive the governing principles for A2P1 and Article 9. It used the case to confirm that: Indoctrination and non‑objective, non‑critical, non‑pluralistic teaching are conceptually the same for A2P1 purposes. There is no requirement to prove a separate “aim” of indoctrination where indoctrination has in fact occurred. Withdrawal schemes that are capable of placing an undue burden on parents, exposing intimate beliefs, or creating conflict can render rights illusory, even if parents are not legally obliged to disclose their convictions. By analogy with the burdens identified in Folgerø, the Court accepted that the withdrawal right in this case could impose an undue burden and deter its exercise.
  Lautsi	Sets the threshold for “philosophical convictions” protected under Article 9 and A2P1: they must reach a level of cogency, seriousness, cohesion, and importance, be worthy of respect in a democratic society, be compatible with human dignity, and not conflict with the child’s right to education. Affirms parents’ right “to enlighten and advise” their children and to guide them in line with their own religious or philosophical convictions, primarily within the home and private religious sphere.	The Court used Lautsi to confirm that the Parent Appellant’s broadly humanist convictions satisfy the threshold for protection under Article 9 and A2P1, and that there was no challenge to this finding. It also invoked Lautsi to emphasise that the case is not about limiting parents’ ability to guide their children’s beliefs outside the school environment.
  Kjeldsen	Cited in Folgerø as the source of the principle that the State must not pursue an aim of indoctrination in education that fails to respect parents’ convictions (major principle (h)).	The Court referred to Kjeldsen indirectly through Folgerø to ground the prohibition on indoctrination in A2P1 jurisprudence.
  Öcalan (Chamber and Grand Chamber)	Establishes that making the existence of a Convention violation dependent on proof of an additional, subjective element (such as a specific “aim”) can render rights theoretical and illusory; rights must be practical and effective.	The Supreme Court cited Öcalan to reject the argument that a breach of A2P1 requires proof that the State pursued a specific aim of indoctrination, as opposed to demonstrating that indoctrination has in fact occurred.
  Artico	Reinforces the principle that Convention rights must be “practical and effective”, not “theoretical and illusory”.	The Court relied on Artico (along with Öcalan) to emphasise that conditioning a remedy on showing a State “aim” of indoctrination, despite actual indoctrination, would undermine the effectiveness of A2P1 protections.
  R (Fox) v Secretary of State for Education	States that the need for parents to withdraw a child from elements of the curriculum can itself signify a lack of pluralism in the educational provision.	The High Court, whose reasoning the Supreme Court endorsed, relied on Fox to add that the need to withdraw the Child Appellant would itself be a manifestation of the lack of pluralism in the School’s religious education and collective worship.
  R (Ullah) v Special Adjudicator	Formulates the “Ullah principle”: domestic courts should, in general, follow clear and consistent Strasbourg jurisprudence and not seek to develop new principles of Convention law beyond that court’s case law.	The Court of Appeal invoked Ullah to argue that, because Strasbourg had not found an automatic withdrawal right insufficient, domestic courts should not do so. The Supreme Court held that this was a misapplication of Ullah, explaining that applying established Strasbourg principles (such as the “undue burden” test) to a new factual configuration does not create new Convention law.
  R (AB) v Secretary of State for Justice	A Supreme Court authority reaffirming that it is not the function of domestic courts to establish new principles of Convention law, consistent with Ullah.	The Supreme Court cited this case to explain that, in the present appeal, it was not creating new principles but merely applying existing Strasbourg standards (including the practical-and-effective and “undue burden” doctrines) to the domestic withdrawal regime.
  Papageorgiou	Holds that an exemption procedure for religious education requiring parents to submit a formal declaration that the child is not of the majority faith can be “capable of placing an undue burden on parents”, particularly in small, religiously homogeneous communities, due to risks of exposure of sensitive aspects of private life, conflict, deterrence, and stigmatisation. Clarifies that A2P1, read with Article 9, guarantees schoolchildren the right to education in a form that respects their right to believe or not believe; thus, both parents and children are rights-holders.	The Supreme Court drew on Papageorgiou to: Support the conclusion that the withdrawal regime in the present case was capable of imposing an undue burden on the Parent Appellant, particularly in a small and religiously compact school community. Emphasise the relevance of risks of stigma, exposure of convictions, and lack of alternative provision to the analysis of A2P1. Reinforce that the Child Appellant, as well as the Parent Appellant, holds rights under A2P1 read with Article 9.
  Perovy	Recognises that children are themselves rights‑holders under Article 9 ECHR. States that the first sentence of A2P1, read in light of the second sentence and Article 9, guarantees schoolchildren the right to education “in a form which respects their right to believe or not to believe”. Indicates that, in cases involving both parents and children, the analysis of a child’s complaint under A2P1 may be guided by findings in relation to the parents’ complaint under the second sentence of A2P1.	The Supreme Court relied on Perovy to hold that: The rights guaranteed by A2P1 when read with Article 9 are not limited to parental rights; schoolchildren hold independent rights. The Child Appellant’s complaint under A2P1 could and should be considered, guided by the findings on the Parent Appellant’s complaint. The High Court was correct to find a breach of A2P1 read with Article 9 in respect of both the parent and the child.

  Court’s Reasoning and Analysis

  1. Context and Nature of the Religious Education and Worship

  The Court began by situating the dispute within the legislative and institutional framework governing religious education and collective worship in grant-aided schools in The State. Article 21 of the relevant Order requires all grant-aided schools (except nursery schools) to provide religious education and daily collective worship. In controlled schools such as the School, religious education must be undenominational Christian education based on the Holy Scriptures, and collective worship must not be distinctive of any particular Christian denomination. All grant-aided schools are further required to include religious education in accordance with a core syllabus specified by the Government Department.

  Under subsequent legislation, the Department may specify this core syllabus, but only on the basis of a draft prepared by a drafting group. The current core syllabus was drafted solely by four main Christian churches and, following consultation and criticism by various civil society bodies, was nevertheless adopted by the Department through subordinate legislation. The syllabus must be included in all grant‑aided schools, though schools may add further religious education beyond it.

  The High Court and Court of Appeal had already held, and the Supreme Court accepted (since permission to challenge this conclusion had been refused), that the core syllabus does not convey religious education in an objective, critical, and pluralistic manner. Factors supporting this conclusion include:

  • The drafting group, composed exclusively of Christian churches, saw its role as contributing to the “faith development” of young people rather than imparting neutral knowledge about Christianity.
  • In the Foundation Stage and Key Stages 1 and 2 (ages four to eleven), there is a complete absence of teaching about other world religions or non‑religious philosophies; exposure to other world faiths appears only later and in a limited way.
  • In controlled schools, a statutory prohibition on denominational teaching means pupils are not taught about diversity even among Christian denominations.
  • The core syllabus actively encourages acceptance of key Christian beliefs (e.g. that there is a Christian God who created the world, cares for people, answers prayer, and is the source of morality), without any stated commitment to developing critical thinking.
  • Non‑statutory guidance produced by the same churches reinforces a confessional approach, expecting pupils to recognise the Christian God’s care and creation.

  Collective worship at the School is predominantly Christian and is linked to the core syllabus. External Christian ministers and representatives of Christian organisations address assemblies, with their messages based on Christian teachings and Scripture. The calling of such ministers and representatives is to proselytise. Individual teachers may also lead prayers of thanks to God, at their discretion.

  The Department does not inspect or evaluate religious education or collective worship, nor does it know how schools implement the core syllabus or any additional religious teaching. The School has never been inspected in these respects, and its Board of Governors does not know whether additional teaching amounts to indoctrination or proselytising.

  2. Convention Framework and Key Principles from Strasbourg Jurisprudence

  The Court set out the relevant Convention provisions: Article 9 (freedom of thought, conscience, and religion) and A2P1 (right to education, with a duty on the State to respect parents’ religious and philosophical convictions in the exercise of educational functions). It accepted, without challenge, the High Court’s finding that the Parent Appellant’s broadly humanist beliefs meet the threshold for “philosophical convictions” protected under these provisions.

  Relying primarily on the Grand Chamber judgment in Folgerø, the Court summarised the major principles governing A2P1 in the context of religious education, including that:

  • The two sentences of A2P1 must be read together and in light of Articles 8, 9, and 10 ECHR.
  • The second sentence is designed to safeguard pluralism in education, which is essential to a democratic society, and applies throughout the entire state education programme.
  • Parents are primarily responsible for their children’s education and may require the State to respect their convictions in fulfilling its educational functions.
  • While States enjoy a wide margin of appreciation in curriculum design, they may impart information of a religious or philosophical nature and parents cannot object merely to such integration.
  • However, the State must ensure that information and knowledge included in the curriculum are conveyed in an objective, critical, and pluralistic manner.
  • The State is “forbidden to pursue an aim of indoctrination” that fails to respect parents’ convictions; this is the “limit that must not be exceeded”.
  • Competent authorities have a positive duty to take the “utmost care” to ensure that, in practice, parents’ convictions are not disregarded through carelessness, lack of judgment, or misplaced proselytism, including via inspection and supervision.

  The Court also drew on Papageorgiou, which holds that an exemption regime can be “capable of placing an undue burden on parents” and deterring them from exercising their rights, especially in small, religiously homogeneous communities, where stigma and exposure of sensitive beliefs are more acute. Both Folgerø and Papageorgiou stress that Convention rights must be “practical and effective” rather than “theoretical and illusory”.

  3. Relationship Between Indoctrination and Non‑Objective Teaching; Need for a State “Aim”

  The Court rejected the Court of Appeal’s attempt to draw a meaningful distinction between:

  • conveying information or knowledge in a way that is not objective, critical, and pluralistic; and
  • pursuing an “aim of indoctrination”.

  Looking again to Folgerø, the Court noted that the Norwegian Government and the Strasbourg Court treated these formulations as equivalent, describing the issue as whether the subject involved imparting information in a manner “which objectively might be perceived as indoctrinating, that is, not objective, neutral and pluralistic.” The Strasbourg Court ultimately found that Norway had not taken sufficient care to ensure objective, critical, and pluralistic teaching, and that this amounted to a violation of A2P1, without making an additional, distinct finding that the State had a subjective aim of indoctrination.

  Accordingly, the Supreme Court held that conveying information or knowledge in a non‑objective, non‑critical, non‑pluralistic manner is indoctrination for A2P1 purposes. There is no further “dividing line” or test; the two concepts are “different sides of the same coin”.

  The Court further rejected the argument that a breach of A2P1 requires not only proof of indoctrination but also proof that the State pursued a specific “aim” of indoctrination. Drawing on Öcalan and Artico, the Court reasoned that conditioning a remedy on demonstrating such an aim would render parents’ and pupils’ rights theoretical and illusory in cases where indoctrination actually occurred. It would also be inconsistent with the State’s positive duty to inspect and intervene to prevent indoctrination. The Strasbourg Court’s approach in Folgerø, which identified a violation without separately establishing a State “aim” of indoctrination, confirmed that no such additional requirement exists.

  4. Application to the Department’s Assumed Functions

  The Court observed that the Department has assumed functions in relation to religious education and collective worship, including specifying a core syllabus and establishing statutory requirements for daily collective worship. In fulfilling these functions, the Department is obliged under A2P1 to “take care” that information and knowledge in the core syllabus are conveyed in an objective, critical, and pluralistic manner.

  Given the accepted findings that religious education and collective worship at the School, grounded in the core syllabus, were not delivered in such a manner, the Court held that the Department had breached its obligation of care. The teaching amounted to indoctrination. That breach concerned not only classroom religious education but also collective worship, which was structured around and reinforced the same core syllabus.

  5. The Statutory Right of Withdrawal and the “Undue Burden” Analysis

  The central question then became whether the parental right to withdraw the Child Appellant from religious education and collective worship was sufficient to avoid a violation of A2P1 read with Article 9. The Court emphasised, following Folgerø and Papageorgiou, that the key test is whether the withdrawal regime is capable of placing an undue burden on parents and deterring them from exercising their rights. If so, reliance on that right would render the Convention protections illusory.

  The High Court had assessed the parents’ evidence about the practical and social consequences of withdrawal and found that “the concerns raised by the parents in relation to exclusion are valid”. That court concluded that, although the withdrawal right was formally “unfettered”, it was not a sufficient safeguard against the lack of pluralism. It risked undue burdens, deterrence, and stigmatisation of the child.

  The Supreme Court held that there was ample evidence supporting the High Court’s factual findings, and indeed that those findings were the only ones reasonably open on the evidence:

  • Stigmatisation risk: The Child Appellant would have been the only pupil among approximately 250–275 to be withdrawn, in a small school community. The parents reasonably feared that she might be bullied or isolated, confused or distressed by being singled out, or repeatedly identified as a non‑Christian throughout her schooling. There was no evidence from the School that such stigmatisation would not occur. This context mirrors concerns in Papageorgiou about stigmatisation in small, religiously homogeneous communities.
  • Undue burden on parents:
    • The School required discussions “prior” to withdrawal to plan alternative arrangements, with no pre‑existing options or dedicated funding in place. This necessitated negotiation about where the child would go, what she would do, and who would supervise her.
    • In practice, and in line with Folgerø, these discussions carried a real risk that the parents would feel compelled to reveal intimate details of their non‑religious convictions, even though there was no legal obligation “as such” to do so. The Court stressed that the risk and parents’ reasonable perception of compulsion are what matter.
    • The process created a “potential breeding ground for conflict” with school authorities, which parents might reasonably prefer to avoid by not seeking withdrawal.
  • Deterrent effect: The combination of stigmatisation risk, exposure of beliefs, potential conflict, and the absence of Departmental guidance or support in devising alternative arrangements was capable of deterring reasonable parents from exercising the withdrawal right, as the Appellants said occurred in their own case.
  • Structural context: There was no statutory requirement for inspection or monitoring of religious education and collective worship, and no guidance from the Department on managing withdrawals and alternative provision. The Court considered that, had the Department fulfilled its positive duty of “utmost care” by inspecting and acting to prevent indoctrination, one of the parents’ key reasons for not withdrawing (their desire for non‑indoctrinating religious education rather than exclusion) might have fallen away. The Department’s inaction therefore reinforced the inadequacy of the withdrawal regime.

  The Supreme Court aligned this analysis with the reasoning of the Strasbourg Court in Folgerø and Papageorgiou, which held that requiring parents to provide reasons for exemption, or to make formal declarations in small, religiously compact communities, can be “capable of” imposing an undue burden and deterrent effect, even absent a strict legal obligation to disclose beliefs. The Court emphasised that the capacity to impose such a burden is sufficient; actual realisation of harms in every case need not be proved.

  6. Errors Identified in the Court of Appeal’s Approach

  The Supreme Court enumerated several key errors in the Court of Appeal’s reasoning:

  1. Mischaracterisation of indoctrination: The Court of Appeal treated indoctrination as conceptually distinct from non‑objective, non‑critical, non‑pluralistic teaching, and held that a breach of A2P1 required proof that the State had pursued a forbidden “aim” of indoctrination. The Supreme Court held that this misreads Folgerø; indoctrination and such non‑objective teaching are simply alternative formulations of the same prohibited conduct.
  2. Erroneous requirement of a State “aim”: By making a violation contingent on showing a specific State purpose of indoctrination, the Court of Appeal ignored the logic of Folgerø and the principle that Convention rights must be practical and effective. Where indoctrination has occurred, requiring proof of an additional subjective aim is incompatible with A2P1.
  3. Misapplication of Strasbourg case law to automatic versus partial withdrawal rights: The Court of Appeal reasoned that Strasbourg had found violations only in cases involving qualified or partial exemptions, not in systems with automatic exemptions. It concluded that domestic courts should not, under the Ullah principle, find a violation where an automatic withdrawal right exists. The Supreme Court disagreed, noting that:
     • In Folgerø, the system contained both an automatic, unreasoned exemption for clearly religious activities and a partial exemption for other aspects, and the Strasbourg Court’s analysis turned on whether the overall system was capable of imposing an undue burden.
     • There is no principled reason why the “undue burden” and practical‑and‑effective tests should not apply equally to automatic exemptions.
     • The absence of a Strasbourg decision directly on automatic exemptions does not preclude domestic courts from applying established principles to such systems; this does not amount to creating new Convention law.
  4. Imposition of an unduly high evidential standard: The Court of Appeal held that the Appellants’ apprehensions of stigma, burden, and deterrence were not “objectively made out” and would not have been realised in practice. The Supreme Court held that, under Strasbourg principles, reasonable apprehensions that a withdrawal regime is capable of producing such effects are sufficient to find an undue burden; parents need not prove that their fears would in fact materialise. Requiring proof of actual realisation imposes a higher and different standard than that applied in Folgerø and Papageorgiou.
  5. Disregard of the trial judge’s factual findings: The High Court had made a clear factual finding that the parents’ concerns about withdrawal were “valid”. It is only in exceptional circumstances that an appellate court should overturn such findings. The Supreme Court held that the Court of Appeal was not justified in rejecting the High Court’s findings, particularly in concluding that a withdrawal would not result in stigmatisation of the Child Appellant.

  In light of these errors, the Supreme Court concluded that the Court of Appeal ought to have upheld the High Court’s decision that the withdrawal right was insufficient to prevent a breach of A2P1 read with Article 9.

  7. Rights of Children under A2P1 and the Department’s Cross‑Appeal

  On the cross‑appeal, the Department argued that the High Court had erred in failing to separately analyse the claims of the Parent Appellant and Child Appellant, and that A2P1’s second sentence confers rights only on parents, not children.

  The Supreme Court turned to Perovy and Papageorgiou. In Perovy, the Strasbourg Court confirmed that:

  • Children are rights‑holders under Article 9 ECHR.
  • The first sentence of A2P1, read in light of the second sentence and Article 9, guarantees schoolchildren the right to education in a form that respects their right to believe or not believe.
  • In cases where both parents and children complain, the child’s complaint under the first sentence of A2P1 can be guided by the findings on the parents’ complaint under the second sentence.

  Applying this jurisprudence, the Supreme Court held that:

  • Both parents and schoolchildren are holders of the right to freedom of religion under Article 9.
  • The rights guaranteed by A2P1, when read with Article 9, are not confined to parental rights; schoolchildren have independent rights to an education that respects their convictions or non‑convictions.
  • The first and second sentences of A2P1 must be read together, so that the first sentence, interpreted in light of the second and Article 9, secures children’s rights.
  • The rights of parents and children must, in principle, be analysed separately; however, the outcome for the child will ordinarily be guided by the findings in relation to the parents’ complaint.

  On this basis, the Court found that the High Court had not erred in considering the claims of the Parent Appellant and Child Appellant together, guided by the conclusion that the Parent Appellant’s rights under the second sentence of A2P1 had been breached. The High Court was correct to find that there was a breach of A2P1 read with Article 9 in respect of both the Parent Appellant and Child Appellant. The Department’s cross‑appeal was therefore dismissed.

  8. Issues Left Open

  The Court noted that, for the purposes of the present appeal and in the absence of full argument, it was unnecessary to decide certain additional questions, including:

  • Whether the Department was also in breach of A2P1 by failing to monitor, inspect, and report on the standard of religious education being provided in schools.
  • Whether a particular regulation permitting disclosure of pupils’ religious denominations to local ministers is compatible with Article 9, given that it requires revelation of beliefs concerning spiritual matters.
  • Whether the existing safeguards—specifically the requirement that parents must not object—are sufficient to protect the rights of parents and children when external religious figures are granted access to pupils for additional religious education under statutory provisions.

  Holding and Implications

  Holding: The Supreme Court allowed the appeals of the Child Appellant and Parent Appellant and dismissed the Government Department’s cross‑appeal. It held that:

  • The teaching of religious education under the core syllabus and the arrangements for collective worship at the School, as actually implemented, did not convey information and knowledge in an objective, critical, and pluralistic manner, and amounted to indoctrination.
  • The statutory parental right to withdraw a child from religious education and collective worship, although formally unqualified, was in practice capable of imposing an undue burden on parents, deterring its exercise, and risking stigmatisation of the child. It therefore did not prevent a breach of A2P1 read with Article 9.
  • Both the Parent Appellant and the Child Appellant are rights‑holders under A2P1 read with Article 9; the rights of the Child Appellant were breached alongside those of the Parent Appellant.

  The Court accordingly REINSTATED the High Court’s declaration that:

  The teaching of religious education under the core syllabus specified by the relevant legislation and the arrangements for collective worship at the School breached the rights of the Child Appellant and Parent Appellant under A2P1 read with Article 9 ECHR.

  The subordinate legislation itself was not quashed and was not in issue on this appeal.

  Implications:

  • For the parties: The Appellants obtain declaratory relief confirming that their Convention rights were breached by the way religious education and collective worship were conducted at the School. The Department and School Board remain subject to the statutory framework but must recognise that implementation in the manner identified is unlawful under the Human Rights Act 1998.
  • For religious education and collective worship policy in The State:
    • The judgment confirms that a religious education curriculum which, especially for younger children, presents a single faith as absolute truth without exposure to other beliefs or development of critical thinking, and which is embedded in collective worship practices, can amount to indoctrination contrary to A2P1 read with Article 9.
    • The existence of an automatic parental right of withdrawal will not, by itself, save such a system where exercising that right is capable of placing an undue burden on parents, exposing their intimate convictions, generating conflict with schools, or risking stigmatisation of children.
    • Authorities responsible for education must ensure that the design and delivery of religious education and collective worship are compatible with the requirement that teaching be objective, critical, and pluralistic. This does not preclude a particular emphasis on the historically dominant religion, nor does it challenge the provision of religious education or collective worship per se, which the Appellants expressly support.
  • Clarification of Convention law in domestic courts:
    • The Court clarifies that, in the context of A2P1, there is no substantive difference between non‑objective, non‑critical, non‑pluralistic teaching and “indoctrination”; they are alternative ways of describing the same prohibited practice.
    • It rejects the proposition that a breach of A2P1 requires proof that the State pursued a separate subjective “aim” of indoctrination.
    • It confirms that Strasbourg principles concerning undue burden, deterrence, and the need for rights to be practical and effective apply to both partial and automatic withdrawal regimes.
    • It reaffirms that domestic courts may apply established Strasbourg principles to new factual situations without infringing the Ullah principle or creating new Convention law.
    • It underscores that children, not only parents, are rights‑holders under A2P1 read with Article 9, and that their rights may require separate consideration, guided by, but not confined to, parental claims.
  • Broader systemic implications: Although the Court left certain questions open (including the lawfulness of the lack of inspection, certain information‑sharing regulations, and the adequacy of safeguards on external religious access to pupils), its reasoning highlights:
    • The importance of effective monitoring and oversight of religious education and collective worship.
    • The need for clear, non‑burdensome procedures for parents who wish to withdraw their children, including guidance and support for schools in devising alternative arrangements.
    • That failure to address these structural issues risks further breaches of A2P1 read with Article 9.