Scottish Court of Session Decisions

The Education (Scotland) Act 1901 (1 Edw. VII, cap. 9), sec. 1, enacts—“It shall be the duty of every parent to provide efficient elementary education in reading, writing, and arithmetic for his children who are between five and fourteen years of age.”

The Education of Defective Children (Scotland) Act 1906 (6 Edw. VII, cap. 10) which is (sec. 3) to “be construed as one with the Education (Scotland) Acts 1872 to 1906,” sec. 1 enacts—“From and after the commencement of this Act it shall be lawful for a school board in Scotland, if they think fit, either alone or in combination with one or more school boards, to make special provision for the education,

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medical inspection, and, where required, for the conveyance to and from school of epileptic or crippled or defective children between five and sixteen years of age, within their education district, and to defray the cost thereof out of the school rate.” Sec. 2—“The expression ‘defective children’ means children who, not being imbecile, and not being merely dull or backward, are by reason of mental or physical defect incapable of receiving proper benefit from the instruction in the ordinary schools.”

James M. Sinclair, residing at Cloichard Cottages, Pitlochry, in the Parish of Moulin, Perthshire, brought a petition in the Sheriff Court at Perth against the School Board of the Parish of Moulin, and William MacGowan, schoolmaster, residing at Pitlochry, “to interdict, prohibit, and discharge the defenders, and each of them, and all persons acting under the authority or upon the instructions of them, or either of them, from refusing to enrol the pursuer as a pupil at Pitlochry Public School, and from preventing him entering, or excluding or expelling him from said school, or in any other way obstructing his attendance as a pupil at said school during school hours, and to grant interim interdict, or otherwise; and alternatively, to decern and ordain the defenders the School Board of the Parish of Moulin to make sufficient and available provision elsewhere for the efficient education of the pursuer, and to find the defenders jointly and severally liable in expenses.”

The pursuer averred—“(Cond. 1) The pursuer is an illegitimate child, and resides with his grandfather James Sinclair at Cloichard Cottages, Pitlochry, in the parish of Moulin, Perthshire. He was born in Pitlochry on 5th June 1896. The defender William MacGowan is headmaster of Pitlochry Public School, which is vested in and is under the control and management of the defenders the School Board of the Parish of Moulin. (Cond. 2) Since he was six years of age the pursuer has attended Pitlochry Public School. On or about December 1906 the defender William MacGowan, without assigning any reason, turned him out of school, and told him to go home and stay there. On the following day the boy was taken back to the school by his grandmother, and was admitted by Mr MacGowan, but next day he was again sent home by Mr MacGowan, who now refuses to admit him back to the school. (Cond. 3) On 27th December 1906, the defenders the School Board of the Parish of Moulin, through their clerk Mr Hugh Mitchell, solicitor, Pitlochry, wrote to the said James Sinclair that the pursuer ‘is a source of great trouble in the class, as he is quite incapable of learning anything,’ and that he ‘cannot be permitted to enter Pitlochry School unless you produce a certificate from a duly qualified medical man that James Sinclair is at the time of the certificate being granted so far improved mentally as to be capable of receiving instruction at a board school in the usual way.’ (Cond. 4) On 12th January 1907 the pursuer was examined by Dr Robert Stirling, Perth, who granted a certificate in the following terms:—‘James Sinclair is a backward child, but not in my opinion unfit for education, though probably unfit to keep pace with the average schoolboy. He requires special consideration on account of physical weakness.’ Said certificate is produced and referred to. It was sent to the defenders the School Board on or about 21st January 1907. (Cond. 5) Subsequently, on the suggestion of the Scotch Education Department, the pursuer was examined on behalf of the School Board by Dr Ash, medical adviser to the Carnegie Trust, Dunfermline, who reported, of date 6th May 1907, that the pursuer not being imbecile is by reason of mental defect incapable of receiving proper benefit from the instruction in ordinary schools, but capable of receiving instruction in special classes. The pursuer denies that he is incapable of receiving benefit from the instruction in Pitlochry Public School. The defenders the School Board have not tendered him instruction in special classes, and he believes and avers that they have not provided any such classes.”

The defenders the School Board made the following statement of facts—“(Stat. 1) The pursuer when an infant suffered from meningitis. He was enrolled as a pupil at Pitlochry Public School in the beginning of September 1901, and was a pupil in the infant department until the end of the year 1905, when, on account of illness of the nature of cerebral excitement, he was removed from school by order of his medical attendant, and did not return until nine months after, in September 1906. (Stat. 2) In September 1906 the pursuer was transferred to the junior department of the school, not as in the usual course because he was qualified to leave the infant department, but because it was thought unreasonable that he should remain any longer in the infant department to associate with children much younger than himself, and to continue to be a source of annoyance to class after class. (Stat. 3) The pursuer attended school most irregularly because of frequent illnesses, chiefly violent headaches. Great difficulty was found in teaching him. He had no power of concentration and was very restless. Lessons caused him cerebral excitement, bringing on violent headaches and vomiting, and his frequent illnesses were really the result of attempting to teach him. He could repeat words or figures after a teacher, but could not recognise them when written or printed. His restlessness disturbed the teaching of the other pupils, and he could not be punished as he was not mentally or physically fit. The efficiency of the school suffered from his disturbing influence. (Stat. 4) Little or no improvement resulted from the long continued efforts to educate the pursuer in school, and in December 1906 these defenders, having fully considered the circumstances, deemed it unreasonable and inexpedient that he should be longer received as a pupil in school. They communicated their decision and the

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reasons for it to the pursuer's grandfather in a letter from their clerk dated 27th December 1906. (Stat. 5) On 21st January 1907 the said James Sinclair handed to the defenders' clerk the certificate by Dr Robert Stirling referred to in article 4 of the condescendence. This certificate was considered by these defenders, but, as they intimated to the said James Sinclair, they had no school staff to give special teaching to the pursuer, and they adhered to their decision that he could not be admitted to the school. (Stat. 6) Founding upon the Scotch Code 1906 for day schools, article 17, sub-section ( a), which provides that before any grant is made to a school the Scotch Education Department must be satisfied that ‘no child is refused admission on other than reasonable grounds,’ Mr Alexander Macbeth, solicitor, Pitlochry, on behalf of the said James Sinclair, forwarded on 25th January 1907 to the Scotch Education Department the letters which these defenders had sent to the pursuer's grandfather and grandmother, and the said certificate by Dr Stirling, and asked the Department to require these defenders to educate the pursuer. A correspondence ensued between the Department, these defenders, and Mr Macbeth as agent of the said James Sinclair, in the course of which it was agreed that the pursuer should be examined by a medical man to be selected by the defenders and the said James Sinclair as the parties interested. On the suggestion of the Department Dr Ash was so selected. (Stat. 7) Dr Ash came to Pitlochry on 3rd May 1907, and examined the pursuer, who was accompanied by his grandparents and Mr Macbeth. Dr Ash wrote out his report in duplicate, and on or about 6th May 1907 sent one of the copies to Mr Macbeth and the other to these defenders. (Stat. 8) On 8th May 1907 these defenders forwarded a copy of Dr Ash's report to the Education Department, and said that as it fully bore out the contention of these defenders, they presumed it would be unnecessary for them to take any further action in the matter. The correspondence ended with a letter from the Department on 10th May 1907, saying that ‘the boy in question would appear to belong to the category of “defective” children for whom special provision may be made by a school board in terms of the Education of Defective Children (Scotland) Act 1906.’ (Stat. 9) These defenders did not think fit to make special provision for the education of this defective child under the last-mentioned statute. His is the only case of the kind in their district, and they did not feel justified in relieving the said James Sinclair of his primary obligation to provide efficient elementary education for the said child and putting the burden on the ratepayers.” The pursuer pleaded, inter alia—“(1) The defenders being bound to admit and enrol the pursuer as a pupil in Pitlochry Public School, and having refused to do so, interdict should be granted, as craved, with expenses. (2) The pursuer being a child of school age resident in the parish of Moulin, the defenders the School Board of the said parish are bound in terms of the Education (Scotland) Act, to have at all times sufficient and available provision for his efficient education.”

The defenders pleaded, inter alia—“(1) No title to sue. (2) The action is incompetent. (4) The defenders having acted within their power and according to their duty as managers of the school in refusing to admit the pursuer to the school, the petition should be refused. (5) Separatim—The exclusion of the pursuer from the said school being in the circumstances proper and reasonable, the petition should be refused.”

The Sheriff-Substitute ( Sym) having previously appointed a curator ad litem to the pursuer, on 13th August 1907 pronounced an interlocutor repelling the plea of “no title to sue,” dismissing the action so far as laid against the defender MacGowan, and continuing the cause. On 28th October following he pronounced an interlocutor allowing a proof before answer.

The defenders appealed to the Sheriff (C. N. Johnston), who on 6th December pronounced an interlocutor dismissing the action.

Note.—“In this case the parties concur in stating that they do not desire proof. Each party asks me to dispose of the case in his own favour on the pleadings and productions as they stand. It appears to me that there is material for doing so. A school board is bound to maintain efficient schools sufficient for the needs of the parish, and to admit thereto all children in the parish capable of being taught with other children in an ordinary primary school. The board is not bound to make special provision for a defective child who, not being an imbecile, yet from mental defect cannot be taught with other children, or is a disturbing influence in the school. For such children special provision may be made under the Act of 1906, but only if the School Board see fit. It may be argued that as this Act though voluntary provides an alternative to reception in the school, the School Board, if they do not avail themselves of its provisions, may now be compelled to receive in the ordinary school defective children whom formerly they might have refused. I am unable, however, to accept this argument. It was contended by the defenders that the reception or non-reception of children in the public school is an administrative matter entrusted by Parliament to public boards under the supervision of the Department, and that accordingly an action like the present cannot be entertained by a court of law. That contention does not commend itself to me. On the other hand, however, I am of opinion that a court of law ought to take note of the consideration that it is to public boards and not to the courts of law that Parliament has entrusted the administration of the Education Acts, and the exercise of the discretion which this implies. Where this discretion has been carefully and honestly exercised it is not the province of a court of law to

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review the decision arrived at. Accordingly, where a child has been excluded from a school on the ground of mental unfitness or of considerations of order and discipline, it is not for a judge after inquiry into the whole facts to determine whether or not he would have exercised discretion in the same way. All that a judge needs to satisfy himself of is that the board has not acted capriciously, but that their procedure has been reasonable, and that their decision is not either unconscionable or founded upon an erroneous view of the law.

In the present case the Board excluded the child from the school on the alleged ground that he was from mental defect unfit to profit by instruction therein, and that for similar reasons his presence was a source of disturbance to good order in the school. This view of the matter having been challenged by the guardian of the child, a medical certificate was called for as to the child's fitness. An inconclusive certificate having been tendered, the Board, after the matter had been referred to the Department, consulted a medical expert recommended by the Department. This expert made a careful inquiry and reported that the child was unfit for instruction in an ordinary primary school, and that his teachers found that his restlessness was a disturbing influence. In these circumstances the Board adhered to their decision. The Department supported their action, pointing out, however, that the Board might if they saw fit avail themselves of the Act of 1906 to make special arrangements. In these circumstances there does not appear to me to be any ground for judicial interference.

It is deeply to be regretted, however, if this poor little boy is not to get all the education by which he can benefit. He was unfortunate in the circumstance of his birth, and of early severe and later recurrent illness, and the worry of the school has at times brought on severe headaches. Yet withal he is not a bad boy, but docile and obedient. If the circumstances of the grandparents do not permit them to give him special instruction, the case is certainly one which appeals very strongly to benevolence. It was stated on behalf of the Board that special instruction would cost £20 per annum. If so I do not think that the Board can be blamed for declining to undertake the whole of this expense. On the other hand, if the circumstances of the grandfather are anything like what is indicated in the correspondence, where he is described as a labourer, it is obviously unreasonable to expect him to pay any very considerable proportion of that sum. If the special instruction of this child would cost £20 per annum, then unless the grandfather is a person in very good circumstances, the statement in answer 9 about not ‘relieving him of his primary obligation to provide efficient elementary education for the said child’ is harsh and unreal.

I was asked to sist the grandfather as dominus and decern against him for expenses. The pursuer, however, has a curator appointed by the Court who has adopted and insisted in the action. In these circumstances the question of dominus could be raised, if at all, only in a separate action after an award of expenses.

I regard the action, therefore, simply as one between the pursuer and the defender, and so regarding it I do not think this is a case for an award of expenses.”

The pursuer appealed, and argued—The pursuer was entitled to decree in terms of one or other of the conclusions of the petition. Every child in the country was entitled to receive elementary education from the educational authorities, unless perhaps it had forfeited that right through its own misconduct, and every parent or guardian was similarly entitled to demand such education for his or her child— Barr v. Smith, January 28, 1903, 5 R. (J.C.) 24, Lord Young at p. 32, 40 S.L.R. 547. That this must be so was obvious from a consideration of the Education Acts., In the first place, not only were the Acts obviously framed on the assumption that it was the duty of every parent or guardian to send his child to school, but they also contained express compulsory clauses, the only excuse for absence being the inability of the child to attend—Education (Scotland) Act 1872 (35 and 36 Vict. c. 62), secs. 68, 69, 70; Education (Scotland) Act 1883 (46 and 47 Vict. c. 56), secs. 4, 6, 9, 11; Education (Scotland) Act 1901 (1 Edw. VII, c. 9), secs. 1, 2, 3. But if the parent was under an obligation to send his child for education, it followed that he must have a correlative right to demand that his child should be received and educated. In the next place, it was clear from the Acts that this obligation to send and duty to receive applied not merely to normally but also to abnormally constituted children. Thus, a duty to educate blind and deaf-mute children was imposed on school boards by the Education of Blind and Deaf-Mute Children (Scotland) Act 1890 (53 and 54 Vict. c. 43) (see especially sections 3 and 5); and by the Education of Defective Children (Scotland) Act 1906 (6 Edw. VII, c. 10) express power was given to school boards to make special provisions for the education of defective children. The only reasonable reading of that Act was that whereas the school board had been prior to its passing bound to receive such children in the ordinary school, they could now receive them either as formerly in the ordinary school or in a special school specially provided, but in one or other they must receive them, and the pursuer founded directly upon this Act. Nowhere in the Acts was there any authority for the view that the school board had the right of refusing to admit scholars; such an idea was based upon a complete misunderstanding of the position and duty of school boards, whose main concern was to look after the rights and interests of ratepayers by on the one hand protecting their pockets and on the other seeing that sufficient accommodation and efficient education was provided— Kelso School Board v. Hunter, December 18, 1874, 2 R. 228, Lord President Inglis at 230, 12 S.L.R. 163; Morison v. Glen shiel School Board,

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May 28, 1875, 2 R. 715, Lord Young, p. 718 and following, 12 S.L.R. 473. Haddow v. Glasgow School Board, June 10, 1898, 25 R. 988, 35 S.L.R. 736, founded on by the defenders, had no bearing, because the child there was the child of parents able to pay for the books in question. In no event, however, could the Court at this stage decide the case in favour of the defenders, as their case depended upon the fact that the pursuer was “defective,” which he denied, and as to which he demanded proof or impartial inquiry. Lastly, there was no substance in the defenders' technical plea as to title. The consideration which weighed with the Court in recent cases was whether the pursuer had an interest, and undoubtedly he had a valid interest here.

Argued for respondents—The pursuer had no title to sue. The Education Acts nowhere conferred upon a child a right to education or a duty to attend a school. It was upon “parents” (as defined by the Education (Scotland) Act 1872, sec. 1) that the duty of providing education for their children was imposed—Education (Scotland) Act 1872. sec. 69; Education (Scotland) Act 1901, sec. 1—and accordingly it could only be the “parents” and not the children who had a title to sue an action against a school board— M'Fadzean v. Kilmalcolm School Board, March 6, 1903, 5 R. 600, 40 S.L.R. 440. Even, however, if the action had been competently brought by the child's parent it must fail. It was based upon the fallacy that there was a duty upon the School Board to educate all children, and a corresponding right upon parents to demand education for all children. It was true that parents were bound to educate all their children in so far as they were capable of receiving education, but the only duty (with an exception to be afterwards noted) incumbent on the school board was to maintain in a proper state of efficiency every school under its management, i.e., it must see that all schools were suitable and efficient as regarded accommodation and teachers for the education of ordinary children—Education (Scotland) Act 1872, secs. 26 and 36. The only exception to the rule apparently was in the case of deaf and dumb mutes, it being provided by the Education of Blind and Deaf-Mute Children (Scotland) Act 1890 that school boards must provide for the education of such children if their parents were in poverty. The Education of Defective Children (Scotland) Act 1906, on which the pursuer founded, was entirely against him; it enabled a school board to make special provision for the education of such children “if they think fit,” but plainly negatived the idea that they were under any obligation to do so. The theory that all children must be received by the school board had been expressly negatived in the case of Haddow v. Glasgow School Board, cit. sup., where the School Board was held to be entitled to exclude children who came unprovided with books— a fortiori could it exclude a child who had not the necessary mental equipment to receive education, and whose presence in the school would militate against the school's efficiency? Further, however, and finally, this was not a matter in which the Court could interfere. The duty of supervising school boards lay upon the Education Department; the Education Department had given a decision upon the matter, and had conducted a careful inquiry, and the Court could not interfere with that decision unless it were shown that the Department had acted unconscionably or capriciously, and there was no such suggestion here— M'Fadzean v. Kilmalcolm School Board, March 6, 1903, 5 R. 600, Lord Low, pp. 609–10, 40 S.L.R. 440; Lord Advocate v. Stow School Board, February 19, 1876, 3 R. 469, 13 S.L.R. 305.

At advising—