JR87, the first respondent, now nine, attended a controlled primary school in Belfast and took part in non-denominational Christian religious education (RE) and collective worship (CW). Her parents described themselves as ‘broadly humanist’ and had not raised their daughter in any religious tradition. Once she began attending school, however, they noticed that she would say a prayer before eating and ask them questions about God and religion. They voiced their concerns to the school about its RE teaching and were told that its provision of RE and CW was ‘bible-based’, followed the core syllabus for education and complied with the relevant legislation. They challenged this, arguing that the relevant legislation contravened their Convention rights under Article 9 of the European Convention on Human Rights and Article 2 of Protocol 1 (‘A2P1’). They were successful in the lower court and the Department of Education appealed.
The Department of Education argued that the trial judge, Colton J, had erred in finding that RE and CW in controlled primary schools breached A2P1 because it did not amount to ‘indoctrination’ as understood in the Strasbourg jurisprudence. It also relied on the unfettered right of withdrawal from RE and CW provided to parents under the legislation which, it argued, protected the impugned legislation from breaching any of the parties’ Convention rights, given that schools are required to comply with any such request. Furthermore, it argued that there was no clear or consistent Strasbourg case-law that supported the contention that the provision of RE and CW amounted to a breach of Convention rights.
The respondents argued that Colton J had been correct to apply the objective, critical and pluralistic test as set out by the Grand Chamber in Folgerø v Norway (2008) 46 EHRR 47. The combined effect of the content of the core syllabus taken with the obligation to teach the syllabus in full amounted to ‘indoctrination’ because it required teaching children to believe in Christianity rather than merely explaining it to them. Simply to exclude an affected child from RE or CW assemblies was no answer to that, because an exemption was simply indicative of the lack of pluralism within the curriculum. They maintained that, taken together, the practical effect of the RE and CW curriculum contravened the requirement of pluralism in the Convention case-law, thus entitling Colton J to make the declaration that he did.
The Court of Appeal held that Colton J's finding ‘that the curriculum is not conveyed in an objective, critical and pluralistic manner should remain undisturbed’. However, it also held the unqualified statutory right of parents to withdraw their child wholly or partly from RE and/or CW meant that there had been no breach of A2P1. The declaration by Colton J had therefore been wrong in law and, in light of that conclusion, it was unnecessary to deal with the remaining grounds.
