Court of Appeal, Civil Division: Brooke, Mummery, Scott Baker LJJ, February 2005
The facts are as set out in (2005) 8 Ecc LJ 113.
The court was only concerned with an application for a declaration about an alleged breach of Article 9 which raised three questions:
(i) Was the claimant excluded from school?
(ii) If 'yes' was it because her rights under EHCR Article 9(1) were being limited?
(iii) If 'yes' were they being justifiably limited pursuant to Article 9(2)?
The court rejected Bennett J's analysis that the school had not excluded the claimant concluding that the school had sent her away for disciplinary reasons because she was not willing to comply with the discipline of wearing school uniform. Statutory procedures and departmental guidance had not been followed.
The court reviewed the differing viewpoints ('more liberal' and 'more strict') on the correct dress for Muslim women and accepted the sincerity of the claimant's belief in the correctness of the minority view. It followed that her freedom to manifest her religion or belief in public was being limited, and as a matter of Convention law it would be for the School to justify the limitation on her freedom. The court concluded that the limitation on the applicant's Article 9 (1) freedom was one that was prescribed by law in the Convention sense. In relation to the question of whether the limitation was necessary the court reviewed the ECHR case law relating to countries that maintained a policy of secular education, distinguishing them on the basis that the UK was not a secular state and had no written constitution. In the UK provision is made for religious education and worship in schools. Every shade of religious belief, if genuinely held, is entitled to due consideration under Article 9. The position of the school was that, despite a policy of inclusiveness it permitted girls to wear a headscarf identifying them as Muslim. The issue then was whether it was necessary in a democratic state to place a particular restriction on those Muslim girls who sincerely believed that when they arrived at the age of puberty they should cover themselves more comprehensively than was permitted in the school uniform policy. The court identified the decision-making structure as:
(i) Has the claimant established that she has a relevant Convention right which qualifies for protection under Article 9 (1)?
(ii) Subject to any justification that is established under Article 9 (2) had that Convention right been violated?
(iii) Was the interference with her Convention right prescribed by law in the Convention sense of that expression?
(iv) Did the interference have a legitimate aim?
(v) What are the considerations that need to be balanced against each other when determining whether the interference was necessary in a democratic society for the purpose of achieving that aim?
(vi) Was the interference justified under Article 9(2)?
The school's approach had been completely different, starting from the premise that its uniform policy was there to be obeyed: if the claimant did not like it, she could go to a different school. Thus the school could not resist the declarations:
(i) That it unlawfully excluded her from school,
(ii) That it unlawfully denied her the right to manifest her religion,
(iii) That it unlawfully denied her access to suitable and appropriate education,
The court was at pains to point out that nothing in the judgment should be taken as meaning that it would be impossible for the school to justify its stance if it were to reconsider its uniform policy in the light of this judgment and were to determine not to alter it in any significant respect. The court had considerable sympathy with the problems the school faced and recommended that teachers and governors ought to be given authoritative written guidance from the Department for Education and Skills on the handling of human rights issues in schools.
This case is reported at  EHWC 1389.
(2005) 8 Ecc LJ 239-240