Law Report: Welsh school 'suitable' for Anglophone pupils: R v Dyfed County Council, ex parte S (minors) - Queen's Bench Division (Mr Justice May), 17 December 1993.

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A mainly Welsh-speaking primary school was not inherently unsuitable for the children of English-speaking parents living in Wales, and the local education authority did not act unreasonably or unlawfully in declining to provide free transport to enable the children to attend a mainly English-speaking school further away.

Mr Justice May refused an application for judicial review of the decision of Dyfed County Council not to go on providing the three children, aged 8, 7 and 5, of English- speaking parents living in Wales, with free transport to a primary school 10 miles away where Welsh was used as a teaching language only 15 per cent of the time.

The eldest child had initially attended a nearby school, which used Welsh 90 per cent of the time in the nursery and infant phase, and 50 per cent in the junior phase. But her parents expressed a preference for her not to be taught in Welsh as it was causing her learning difficulties, so in 1989 she was moved to the further school. The younger two children also then attended the further school. But in 1991 Dyfed decided to cease providing them free transport.

David Pannick QC, and Jonathan Swift (Teacher Stern Selby) for the applicants; Lord Williams of Mostyn QC, and Gregory Treverton-Jones (Dyfed County Council) for the education authority.

MR JUSTICE MAY said that the combined effect of sections 39 and 55(1) of the Education Act 1944 was to oblige an education authority to provide free school transport for a child registered at a school beyond walking distance, if the parent would otherwise have a defence to criminal liability, under section 39, for the child's non-attendance.

The further school was not within walking distance, but Dyfed said that it was not obliged to provide transport as the children could go to the nearer school. But the applicants claimed the nearer school was not 'suitable' within section 39(2)(c), because it operated mainly in Welsh and the children were from an English-speaking home.

In reaching an objective decision as to whether an alternative school nearer home was suitable for that particular child, all relevant factors were to be taken into account, including: (a) the reasons for parental preference, which were important but not determinative; (b) the inherent suitability of the preferred school, and (c) of the alternative school; (d) financial considerations, including avoiding unreasonable public expenditure; and (e) policy considerations lawfully adopted by the education authority.

The applicants submitted Dyfed's decision was perverse or irrational, in that no reasonable local education authority properly directing itself in fact and law could have concluded that the nearer school, where teaching was mainly in Welsh, was suitable for the children of an English-speaking family, when the parents had expressed a preference.

But the evidence showed that Dyfed did address and take into account all the relevant factors identified above, and addressed them in relation to these particular children. There was a clear basis on which Dyfed could properly conclude that the nearer school was suitable . Nor, in his Lordship's judgment, could Dyfed's conclusion be characterised as perverse.