Administrative Court: Bennett J, June 2004  EWHC 1389
The Claimant, through her litigation friend, applied for a judicial review of the Defendant and Luton Borough Council, seeking a declaration that the Defendant had unlawfully excluded the Claimant from school, denied her access to suitable and appropriate education in breach of Article 2 of the ECHR, denied her the right to manifest her religion in breach of Article 9 of the ECHR; a mandatory order that the Defendant and the Council make swift arrangements for the Claimant’s return to Denbigh High School; and damages.
For two years prior to September 2002 the Claimant had worn the school uniform in the form of a Shalmar Kameeze without any complaint. She arrived on the first day of term with her brother and another man asking to wear a Jalbaab (a long cloak), claiming that the Shalmar Kameeze was un-Islamic. She was sent home and told that, should she wear the school uniform she would be allowed back to school. She refused to wear the school uniform and spent a year out of school. She claimed that the Defendant had excluded her from school. The judge reviewed the school’s uniform policy, which had been drafted with the assistance of local Mosques. He reviewed the expert evidence on both sides and the decision of the school not to allow the claimant to wear the Jalbaab in the light of, inter alia, health and safety policy. He concluded that the reality of the situation was that the Claimant, entirely of her own volition, chose not to attend school. The Defendant had earnestly and sincerely wanted the Claimant to attend school insisting only that she wore school uniform. If the Defendant had not excluded the Claimant from school, then the claim had to fail.
The Court ruled (although this was obiter dicta) that the Claimant’s refusal to attend school was due to her refusal to respect the school uniform policy rather than her religious beliefs and accordingly there was no breach of Article 9. He ruled that the limitation on wearing the Jalbaab was not ‘necessary’ in the interests of public safety or for the protection of health but it was necessary for the protection of the rights and freedoms of others as the Shalwar Kameeze was worn by Muslims, Hindus and Sikhs alike. The Claimant had always had a choice about attending schools. The fact that she refused to change her mind did not invalidate the fact that she had a choice, she had other schools that she could have gone to, accordingly there was no breach of Article 2.
(2005) 8 Ecc LJ 113-114