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You are here: BAILII >> Databases >> Court of Appeal in Northern Ireland Decisions >> Anderson (a minor) & Anor, Re Application for Judicial Review [2001] NICA 48 (23 October 2001)
URL: http://www.bailii.org/nie/cases/NICA/2001/48.html
Cite as: [2001] NICA 48
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CARSWELL LCJ
Introduction
These appeals are brought from a decision of Weatherup J given on 16 August 2001, whereby he dismissed applications for judicial review brought on behalf of the appellants, in which it was sought to challenge decisions of the Board of Governors of Lumen Christ College, Londonderry, not to admit the appellants to the College. In the course of the judicial review applications and the appeals the validity of the criteria adopted by the Board and their application by the Board and the appeal tribunal of the Western Education and Library Board (WELB) were challenged. At the end of the hearing we gave our decision dismissing the appeals, and stated that we would give our reasons in writing in due course. This judgment contains those reasons.
The Legislation
Boards of governors of grant-aided schools (which category includes all or virtually all secondary schools in Northern Ireland) face an increasingly difficult task in arranging for the admission of pupils who have completed their primary education and are ready to transfer to the secondary school of their choice. Some schools, especially in the grammar school sector, are popular with parents and have more applicants than places available, since the number of pupils who may be admitted (the admissions number) and the total number of pupils enrolled in the school (the enrolment number) are strictly controlled by the Department of Education. Pursuant to Article 9 of the Education (Northern Ireland) Order 1997 (the 1997 Order) parents specify their preferences in order for the secondary schools to which they would like their children to be admitted. Governors are obliged by Article 16 of that Order to draw up the criteria which they will use for selecting children for admission to their schools. Their freedom of choice in framing the criteria and selecting pupils for admission has been steadily diminished since the requirement to publish criteria was first introduced in the Education Reform (Northern Ireland) Order 1989. The provisions relating to grammar schools which are material to these appeals are to be found in the 1997 Order and the Secondary Schools (Admissions Criteria) Regulations (Northern Ireland) 1997 (the 1997 Regulations).
Article 16 of the 1997 Order provides as follows:
"16.-(1)Subject to the following provisions of this Article the Board of Governors of each grant-aided school shall draw up, and may from time to time amend, the criteria to be applied in selecting children for admission to the school under Article 13 or (in the case of a grammar school) Article 14.
(2) When drawing up or amending criteria under this Article –
(a) the Board of Governors of a controlled school shall consider any representations made to it by the board responsible for the management of the school;
(b) the Board of Governors of a Catholic maintained school shall consider any representations made to it by the Council for Catholic Maintained Schools.
(3) Where the criteria to be applied in respect of any school year have been published under Article 17(2), the Board of Governors shall not amend those criteria in respect of that school year without the approval of the Department.
(4) The criteria drawn up by the Board of Governors of a school under paragraph (1) shall provide for all children resident in Northern Ireland at the time of their proposed admission to the school to be selected for admission to the school before any child not so resident may be selected for admission.
(5) The criteria drawn up under paragraph (1) shall be such as to ensure that the Board of Governors by applying those criteria can comply with Article 13 or (in the case of a grammar school) Article 14 before the criteria are exhausted.
(6) The criteria drawn up under paragraph (1) and to be applied in selecting –
(a) children for admission to a secondary school, other than a grammar school; or
(b) children in the relevant age group for admission to a grammar school,
shall not include the performance of the children in any test or examination held by, or on behalf of, the Board of Governors of a secondary school.
(7) Paragraph (6) does not apply to a test or examination –
(a) of an individual child of a description determined by the Department which is held by a board at the request of the Board of Governors of a grammar school; or
(b) which is held by, or on behalf of, the Board of Governors of a secondary school specified by the Department for the purposes of this sub-paragraph.
(8) The criteria drawn up under paragraph (1) by the Board of Governors of a school shall not include the fact that the school was the first preference expressed by the parent of the child or was a higher preference than any other school or schools.
(9) Regulations may provide, in relation to any school or description of school –
(a) that the criteria drawn up under paragraph (1) shall include such matter or matters of such description as are specified in the regulations;
(b) that those criteria shall not include such matter or matters of such descriptions as may be so specified."
The relevant regulations prescribing the content of the criteria are Regulations 4 and 5 of the 1997 Regulations:
"4. The criteria to be applied in selecting children for admission to a school include the following matters –
(a) the order of priority in which children in the relevant age group shall be admitted to the school in the beginning of the school year, where the number of applications for admission exceeds the school's admissions number for that school year;
(b) the order of priority in which children in the relevant age group shall be admitted to the school at any later time in the school year, where the number of applications for admission exceeds the number of vacant places;
(c) the order of priority in which children not in the relevant age group shall be admitted to the school, where the number of applications for admission exceeds the number of vacant places;
(d) where a grammar school includes in its criteria the transfer procedure test grade achieved by children, a provision that, subject to regulation 6 and to the consideration by the Board of Governors of medical or other problems which may have affected a child's performance in a transfer procedure test and which are supported by documentary evidence of a medical or other appropriate nature, -
a child who achieved the transfer procedure test Grade A shall be admitted in preference to a child with any other grade;
a child who achieved the transfer procedure test Grade B1 shall be admitted in preference to a child who achieved a transfer procedure test Grade B2, C1, C2 or D;
a child who achieved the transfer procedure test Grade B2 shall be admitted in preference to a child who achieved a transfer procedure test Grade C1, C2 or D;
a child who achieved the transfer procedure test Grade C1 shall be admitted in preference to a child who achieved a transfer procedure test Grade C2 or D;
a child who achieved the transfer procedure test Grade C2 shall be admitted in preference to a child who achieved a transfer procedure test Grade D.
5. The criteria to be applied in selecting children for admission to a school shall not include the following matters –
(a) provision for the selection of children of compulsory school age by reference to ability or aptitude, except in the case of –
(i) a grammar school;
(ii) a school which on 5th September 1994 was recognised by the Department as one which selects some if its pupils by reference to ability or aptitude; or
(iii) a school for which a development proposal is approved by the Department under Article 14 of the 1986 Order and which enables that school to select some of its pupils by reference to ability or aptitude;
(b) in the case of the admission of children in the relevant age group to a grammar school, the outcome of any relevant assessment which may be conducted by the Northern Ireland Council for the Curriculum. Examinations and Assessment under Article 21(1)(b) of the 1989 Order in relation to a pupil in key stage 2;
(c) in the case of the admission to a grammar school of children in the relevant age group who have the same transfer procedure test grade, provision for selection on the basis of information provided by a primary school principal about a child's classroom performance other than information which is –
(i) relevant to the consideration by the Board of Governors of medical or other problems which may have affected a child's performance in a test; and
(ii) supported by documentary evidence of a medical or other appropriate nature."
Finally, provision is made by Article 15 of the 1997 Order for tribunals to hear appeals from parents of children refused admission to grant-aided schools. Article 15(4) limits the scope of appeals:
"15.-(4) An appeal under this Article may be brought only on the ground that the criteria drawn up under Article 16(1) by the Board of Governors of a school –
(a) were not applied; or
(b) were not correctly applied,
in deciding to refuse the child admission to the school."
A tribunal can, by virtue of Article 15(5), entertain appeals only on those grounds.
The Factual Background
Both Noel Anderson and Shea O'Doherty attended Nazareth House Primary School in Londonderry. Each received an A grade in the transfer procedure. The parents of each boy placed Lumen Christi College as their first preference, with St Columb's College as second preference. The governors of Lumen Christi College, applying their published criteria, decided that they could not accept either boy as a pupil, and so notified the parents of each. Each was accepted by St Columb's College. The parents of each boy appealed to the appeal tribunal of the WELB, which dismissed both appeals.
The admissions number for first year pupils for the year 2001-2002 applicable to Lumen Christi College was 120. The governors received first preference applications for admission in respect of 212 pupils, 186 of whom had A grades, and therefore had to apply their criteria to select between them. Those criteria were the following
"1.Applicants will be admitted in grade order, ie A, B1, B2, C1, C2 and then D.
If there are more applicants with a particular grade than places remaining then the available places will be allocated by the application of the following sub-criteria in the order of priority set down below:
(1) Applicants of whom a brother/sister, half-brother/sister or legally adopted brother/sister is a pupil in the school or will be in the coming year.
(2) Applicants of whom a parent is a permanent member of the College staff or a Governor of the College or will be in the coming year.
(3) Applicants who in the judgement of the Selecting Committee have demonstrated, in Years 5, 6 or 7 (beginning 1 July 1998), extra-curricular achievement by gaining an award/certificate in open activities in any of the following:
Outdoor Pursuits, Sport, IT, Science, Technology, Chess, Quiz, Art, Dance, Debating, Drama, Essay or Poetry Writing, Music, Photography, Singing, Speech or other activities similar in the judgment of the Selecting Committee;
? Activities organised by an individual school or group of schools or a club are not open in the meaning of this criterion.
? Parents should note that it is their responsibility to provide verifiable clear evidence of the achievement.
(4) Applicants who have gained award/certificate in any of the activities in sub-criterion 3 above internal to the school/club;
? For sub-criterion 4, details must be provided with supporting verifiable evidence by parents or with verification by the Primary Principal.
(5) Other applicants.
If over-subscribed on any of the above sub-criteria, places will be allocated in order of age starting with `underage' applicants and then in rank order of age starting with eldest and, if necessary, in alphabetical order.
The sub-committee of the Governors and Principal will apply the criteria at the initial selection stage. Thereafter the Criteria will be applied by the Principal and Vice-Principal."
The process of application of the criteria was carried out on behalf of the governors by a sub-committee of the Board, together with the Principal (to which we shall refer as the selection committee). The process was operated as follows:
1. 186 candidates with A grades had to be considered before the rest. As this number exceeded the number of places available, those candidates with lower grades were thereupon excluded.
2. When sub-criterion (1) was applied, 40 children were selected for admission, and a further two children were selected when sub-criterion (2) was applied. That left 78 places available for 144 children with A grades.
3. The selection committee decided that 76 of the remaining candidates satisfied the terms of sub-criterion (3), and these were admitted, leaving two places available for the 68 children who in the judgment of the committee did not satisfy those terms.
4. 37 of those 68 children were deemed to satisfy sub-criterion (4). Those 37 children were ranked by age in accordance with sub-criterion (5), and two were selected by this process and admitted to fill the remaining two places.
It is clear from the affidavits of the deputy head teacher Patrick O'Doherty and the minutes of the meeting of the selection committee that the committee strove conscientiously to apply the governors' criteria, seeking evidence from the admission documents submitted on behalf of the candidates of achievement in open activities, ie those which extended beyond the individual schools or groups of schools or clubs. The objective of the governors in adopting sub-criterion (3) is set out in paragraph 6 of the affidavit sworn by Mr O'Doherty in each case:
"6. The introduction of criteria based on extramural attainment was carefully designed to ensure that there was no discrimination on the basis of gender or class or any other unfair demarcation. The activities suggested cover a wide range and opportunities for most, if not all of them, are available in the catchment area of the school to most, if not all, potential applicants. This seemed a better way forward as it allowed for an enhancement of the school by admitting students who had sporting and other attainments leading to better balance and, in our belief, the possibility of greater academic success by reason of engagement in non-academic activity. Indeed, the intention, and I believe the effect, was to make the scope of the activities so wide as to be wholly inclusive of all social classes and genders. For this reason too, it is only necessary to show achievement in a single activity to meet the criterion."
Noel Anderson's parents did not submit any evidence of individual or group extra-curricular achievement, and accordingly the selection committee decided that he did not satisfy either sub-criterion (3) or sub-criterion (4). Shea O'Doherty's parents submitted a certificate dated 22 March 2000 from the Speedwell Trust to the effect that Shea had undertaken the Speedwell programme "Minibeasts". The minutes of the selection show that this was classified as satisfying sub-criterion (4), but not (3), the note against his certificate reading "internal to club".
The parents of both children appealed to the appeal tribunal against the governors' decision. The Principal of Lumen Christi College submitted a document in each appeal setting out how the governors had applied the criteria and attended the hearings. The parents do not appear to have attempted to make the case that the governors did not apply their criteria correctly, nor was that suggested in this court. Their complaint to the tribunal was that the criteria were unfair, a case which was articulated before Weatherup J and in this court as an attack on their validity. The tribunal held, in our view quite correctly, that such a complaint was not within its remit and dismissed the appeals.
The Issues
The grounds on which it was claimed that the criteria were unlawful were set out in the Order 53 statements as follows:
"3. The grounds upon which the said relief is sought is as follows:-
(a) The subcriteria employed in the relevant decisions were unlawful in that:
(i) application of subcriteria 3 & 4 of the Board of Governor's Admissions Criteria led to the selection of candidates for admission on the basis of their performance in a test or examination, held by, or on behalf of, the Board of Governors of the school, in breach of Article 16(6) of the Education (NI) Order 1997.
(ii ) application of subcriteria 3 & 4 of the Board of Governors' Admissions Criteria led to the selection of candidates in a way which indirectly discriminated against candidates from lower income families in respect of the Applicant's rights to education in breach of the provisions of Section 6 of the Human Rights Act 1998 and Article 14 of the European Convention on Human Rights.
(b) The subcriteria employed in the relevant decisions were unlawful in that:
(i) criteria 3 & 4 as published in the Board of Governors Admissions Criteria did not comply with Article 16(5) of the Education (NI) Order 1997 in that the application of those criteria in themselves did not allow for any single candidate to be eliminated or excluded from consideration, and thus did not ensure that the Board of Governors by applying those criteria could comply with their obligations under Article 14 of the Education (NI) Order 1997 before such criteria were exhausted.
(ii ) criteria 3 & 4 were thus not `criteria' in themselves.
(iii) criteria 3 & 4 allow for the Board of Governors to apply a further test of athletic and/or academic ability in a manner which is not objective, is not of universal application, does not allow for objective comparison and is thus in breach of the inherent policy of legislative regulation in this area.
(d) the subcriteria applied were unreasonable, irrational, unlawful, ultra vires and void in all the circumstances.
The Applicant will also rely on the Affidavits filed herein and the reasons to be offered."
The arguments presented on the appellants' behalf in this court followed substantially the same pattern. The second respondent the Western Education and Libraries Board served a counter-notice raising two issues, the first being that of time and the second that of standing.
"Test or Examination"
Mr Treacy QC submitted on behalf of the appellants that selection of pupils by the use of sub-criteria (3) and (4), constituted a "test or examination" held by the Board of Governors, which is forbidden by Article 16(6) of the 1997 Order. We are unable to accept this argument. We do not require for present purposes to formulate a complete definition of the term "test or examination", but we consider that whatever its limits this case falls outside the boundaries of the term. We may observe that the phrase is first to be found in Article 38 of the Education Reform (Northern Ireland) Order 1989, where it seems fairly clear to us that it is a written or oral test of ability, formal or informal, in the style of an examination. It seems unlikely that it changed its meaning when repeated in the 1997 Order. We note the suggestion made by Ms Laura Lundy in Education Law, Policy and Practice in Northern Ireland (SLS, 2000), to which Mr Treacy drew our attention, that an interview might constitute a test or examination. We would reserve our opinion on the validity of this proposition, but as at present advised we think it unlikely to be correct, unless perhaps the interview is structured and marked like an interview for employment. As Mr Long QC submitted on behalf of the Board of Governors, the use of these criteria is not a performance test as between candidates. They seek to establish that candidates have been awarded certificates in certain types of extra-curricular activities. In ascertaining whether the candidates fulfil these criteria, they are not testing performance standards or comparing the quality of performance; it is rather seeking to verify committed involvement in outside activities. We therefore agree with the judge that this ground of challenge to the criteria has not been made out.
Discrimination
It was then submitted that in adopting and using these criteria the governors discriminated against children from lower-income families and that this constituted a breach of Article 14 of the European Convention on Human Rights. For present purposes we are willing to assume, as did the judge, that Article 14 prohibits indirect as well as direct discrimination, though we shall reserve our opinion on the point. It was argued that the rights affected by discrimination were those contained in Article 6 of the Convention and Article 2 of the First Protocol. It seems to us doubtful whether they could be said to come within either provision, but again it is not necessary for us to decide the point, for we are in agreement with the judge's conclusion that discrimination has not been established. As he pointed out at pages 7 et seq of his judgment, the activities for which certificates were submitted included not only music and sport, but a variety of other pursuits. The evidence is insufficient to establish that lower-income families are at a disadvantage in ability to participate in extra-curricular activities. Nor can we accept the assumptions made by Ms Lundy in her report to the Northern Ireland Human Rights Commission, Access to Post Primary Schools in Northern Ireland, which seem to us a good deal too sweeping.
Validity of Criteria
Mr Treacy commenced his argument under this head by submitting that sub-criteria (3) and (4) did not constitute valid criteria at all, since –
(a) they did not act as a means of eliminating any individual candidate; and
(b) they did not themselves allow for any independent assessment of any inherent characteristic of candidates, but rather the assessment was carried out by reference to the certificates submitted.
In support of the first proposition he cited Lundy, Education: Law, Practice and Policy in Northern Ireland, paragraph 4.59, where the author says:
"The definitions of a 'criterion' discussed earlier suggest that the criterion must itself act as a means of eliminating the individual applicant."
It should be borne in mind that the context of this remark was that of criteria specifying that places be drawn by lot, the application of which would have the effect that the selection or rejection of a candidate would be a matter of chance, and the author was suggesting that the selection should result from the application of the internal content of the criterion itself.
In Re Farren's Application [1990] 6 NIJB 72 this court held that valid criteria ought to permit the consideration of the case of each candidate in relation to each criterion and determination whether he or she satisfied it, as distinct from selection from amongst children who came within the terms of the particular criterion. Hutton LCJ said at pages 90-91:
"The Shorter Oxford English Dictionary gives the following meanings for the word "criterion":
a. An organ or faculty of judging.
b. A canon or standard by which anything is judged.
c. A characteristic attaching to a thing by which it can be judged or estimated.
Therefore, although criterion 6 of the Thornhill criteria states:
`In cases where a final selection is difficult, pupils will be interviewed to separate candidates.'
I think that the word "criterion" or "criteria" suggests that an individual child is to be considered in relation to each criterion, and that the question is:
Has the child satisfied the particular criterion?
and not:
Is a child better qualified, or of a higher standard, than another child in respect of the particular criterion?"
We consider that all of the criteria adopted by the governors of Lumen Christ College, including sub-criteria (3) and (4), satisfy this requirement. They were so worded that the selection committee was able correctly to work its way through them successively, applying them to the candidates who remained to be considered. They started by applying the grade order, and because 186 candidates had A grades they all satisfied the first criterion and the others were eliminated and not further considered. They then applied sub-criterion (1) to those 186 candidates, with the result that 40 satisfied this and were accepted. Sub-criterion (2) was applied to the remaining 146 candidates, resulting in the acceptance of two more children. The selection committee applied sub-criterion (3) to the 144 who remained, and decided that 76 candidates satisfied its terms. When it applied sub-criterion (4) to the balance of 68 candidates, 37 were deemed to satisfy it. As there were only two places left, these were allocated by resort to the provision that they be ranked by age. We do not see anything contrary to principle in any of these criteria or in the way in which they were applied. It was in our view possible to apply each criterion successively to the candidates who remained to be considered and eliminate those who did not satisfy its terms, the process regarded as correct in Re Farren's Application, and to comply with the requirements of Article 16(5) of the 1997 Order.
The second proposition advanced in this part of the case is also in our view unsustainable. Sub-criterion (3) requires the candidate to have demonstrated extra-curricular achievement in the way specified, by gaining an award or certificate in open activities. It seems to us quite legitimate to require the production of a certificate, which is objective evidence of achievement which might otherwise be difficult to assess. It is still the achievement which has to be established, and it is this which determines whether the candidate satisfies the criterion. The wording of sub-criterion (4) is not in the same terms as that of (3), but in our view it is an elliptical way of prescribing the same thing, with the substitution of internal for open activities.
Subjectivity
The next objection raised to the validity of the criteria may be regarded as a development of the last two. It was to the effect that the application of sub-criteria (3) and (4) involved a degree of subjectivity and that by adopting them the governors were acting contrary to the policy of the education legislation and consequently those criteria were invalid. In so submitting Mr Treacy relied on the well-established line of authority represented by the decision of the House of Lords in Padfield v Minister of Agriculture, Fisheries and food [1968] AC 997. He argued that the history of successive amendments to the regulations governing the content of criteria demonstrated a policy that they should not be subjective but that their application should be capable of determination by objective standards. We do not agree that subjectivity in itself was the mischief at which the amendments in the regulations were aimed. As may be seen from such decisions as Re McGurk [1992] 11 NIJB 10, the reason for abandoning the use of primary school principals' reports was their unevenness, which gave an undue advantage to some groups of pupils. It was to eliminate this source of unfairness that the amendments were made to the regulations. A degree of subjectivity in judgment, which is required in very many decisions in life, is not necessarily a source of unfairness. What the courts have held invalid is the exercise of a discretion which contains no express limitations in such a way as to run counter to the policy of the legislation by which it was conferred: see, eg, Padfield's case, supra; Congreve v Home Office [1976] QB 629. Mr Treacy submitted that the achievement of the candidates could not be assessed in a uniform and objective manner in order to ensure parity. If there is a degree of subjectivity in determining whether an activity put forward on behalf of a candidate is sufficient to satisfy sub-criterion (3) or (4), it is not in our opinion such as to invalidate either of those criteria. The governors' object in framing these criteria was, as Mr O'Doherty deposed in paragraph 6 of his affidavits, to allow for –
"An enhancement of the school by admitting students who had sporting and other attainments leading to better balance and, in our belief, the possibility of greater academic success by reason of engagement in non-academic activity."
That is a legitimate and indeed laudable aim and one which in our judgment is capable of being achieved in a fair and uniform manner. We therefore do not consider that the criteria are invalid on this ground.
Reasonableness
By the same token we consider that the impugned criteria were reasonable, in that it was open to the governors to adopt them consistently with the purpose and policy of the education legislation. They wished to take pupils who had engaged themselves in extra-curricular activities, for the reasons stated in Mr O'Doherty's affidavits. Those who had participated in open activities beyond the confines of those organised by individual schools or by a group of schools or a club might be regarded as being in some respects more committed or to have reached a higher standard, and certainly it would be possible to establish that each candidate had reached a worthwhile level of achievement. They wished also to have evidence to verify such participation by the production of certificates or awards. None of these provisions appears to us to be unreasonable in the Wednesbury sense, irrational or illogical, and we do not accept that ground of complaint against the criteria.
Respondent's Notice
These conclusions are sufficient to dispose of the appeals, but since the matters raised in the WELB's respondent's notice and the question of remedies were argued before us and may be of importance in future cases we shall express our opinion on them. These issues were:
"1.The Application for leave to apply for judicial review of this Respondent's decision was not made promptly and in any event within three months from the date when grounds for the Application first arose, contrary to Order 53 Rule 4.
2. The challenge by Judicial Review of the decision of this Respondent's decision should not have been brought by minor Applicant.
3. Any challenge by Judicial Review of this Respondent's decision should have been brought by the Minor Applicant's parents having regard to the provisions of Part III of the Education (Northern Ireland) Order 1997."
Delay
Counsel for both respondents argued that the time started to run when the criteria were adopted by the governors, which took place early in the school year. At that stage, however, parents of children of transfer age had not made any decision which schools to specify as their preferences and may not have done so until after the publication of the criteria in early February. They would not know the grades which their children received in the transfer procedure until later in the month of February. Until the governors carried out the process of application of the criteria the appellants' parents could not know whether their sons would be accepted as pupils. We do not see how parents could be expected to launch a challenge to the criteria of the College until their validity became a live issue. Whether or not the time could strictly be said to have run from the date when the governors adopted the criteria, accordingly, we do not consider that it was reasonable to ask any parents to challenge them until after they had received notification that their sons had not been accepted as pupils. If it is necessary for us to extend the time specified by RSC (NI) Order 53, rule 4, we therefore do so.
Standing
Mr McCloskey QC on behalf of the WELB argued strongly that the proper applicants in cases of the present type are the parents of the children concerned and not the children concerned. He referred first to Article 44 of the Education and Libraries (Northern Ireland) Order 1986, which provides that pupils shall be educated in accordance with the wishes of their parents. He further pointed out that under Article 9 of the 1997 Order it is the parents who apply to schools in order of preference for the admission of their children, and under Article 15 the right of appeal to a tribunal against a refusal of admission is conferred upon the parents. He drew to our attention the decision of the Court of Appeal in England in Re JC (2000, unreported), in which Kennedy LJ, with whom the other members of the court agreed, expressed his view in trenchant terms at paragraph [31]:
"I am satisfied that where a parent wishes to challenge a local education authority or an appeals committee in relation to the handling of a parent's expression of the preference as to the school at which his or her child should attend it is the parent and not the child who should mount the challenge. I accept that the child may have a sufficient interest to mount a challenge, and in some exceptional cases it may be appropriate for the child to make the application for permission to apply for judicial review, but normally, as it seems to me, the only reason why the application is made in the name of the child is to obtain legal aid, and to enable the parents to protect themselves in relation to costs. That I regard as an abuse. Our legal system works upon the basis that those who seek a remedy should expose themselves in relation to costs. If the device is used in future, permission to apply for judicial review may well be refused on that ground."
We respectfully agree that the parents must as a general rule be the parties to bring an application for judicial review to challenge the admission decisions of school governors or the findings of appeal tribunals. Like the court in Re JC, we do not rule out the possibility that in some cases the children themselves may be the proper parties to bring the applications, but there is no ground in the present case on which the appellants could be brought within that exception. We do not propose at this stage of the case to dismiss the appeals on the ground of standing, but we would lay down some guidelines for future cases. Unless sufficient ground has been established for such an exception to operate, we consider that judges ought to refuse leave for applications for judicial review of governors' or tribunals' decisions in relation to school admission to be brought in the names of the pupils. By the same token legal aid should be refused when sought for such applications to be brought in pupils' names, unless sufficient cause is shown why they and not their parents should be the applicants.
Remedies
In view of our conclusions the question of the appropriate remedy does not arise, but it contains so many possible difficulties for future cases that we think that we ought to add a few observations o it.
In the first place, it is clear that the appeal tribunal has jurisdiction under Article 15(4) and (5) of the 1997 Order only to consider whether the school's criteria were not applied by the governors or were incorrectly applied. It is not entitled to adjudicate on the question whether the criteria are unlawful for any reason. We agree with the views to this effect expressed in Re Trainor's Application (1998, unreported) and Re Cunningham's Application (1999, unreported). It follows that no remedy should issue directly against the tribunal if it has done only what Article 15(4) requires, for its decision should not be quashed as being invalid nor should mandamus ordinarily issue where it was not incorrect in its determination of the appeal.
The court could grant certiorari of the governors' decision in relation to the particular pupils if it found that they were excluded as the result of the application to them of one or more invalid criteria. The difficulty is that the governors could not then admit those pupils if the admissions number has been used up. We can hardly suppose that they should be required to reconsider the admission of pupils who have been admitted and started their secondary school careers with the school and put some of them out.
If the court is to direct the respondents to apply the criteria correctly in the light of its decision (assuming that it has declared one or more criteria invalid) then one possible course would be for the governors to apply the remaining criteria and decide who should be admitted after carrying out that operation. Since they cannot admit pupils above the admissions number, they cannot take any effective action. If the parents were to appeal, the tribunal would, it appears, have to conclude that the governors had applied the criteria properly and dismiss the appeal. Another, and possibly more fruitful, possibility would be for the court to remit the case to the tribunal to proceed in accordance with its decision. It appears possible that it could then decide that the governors had not applied their criteria correctly, in that they had applied invalid criteria instead of proceeding to the next ones down the list. In such case it might direct the admission of the pupils concerned in the appeals, but a serious issue would then arise how to treat the other incorrectly rejected candidates whose parents had not appealed.
It is clear that there is no simple or obvious answer to the question of finding the appropriate remedy if criteria are found to be invalid, and it seems to us that urgent legislative attention is required.
Conclusion
For the reasons which we have given, however, the issue of remedy does not arise in the present case and we dismissed the appeals.
IN HER MAJESTY'S COURT OF APPEAL IN NORTHERN IRELAND