Kimberly Isherwood & Ors., R (on the application of) v The Welsh Ministers

A parent has no fundamental common-law right to excuse a child from particular teaching after choosing a maintained school. The principle of legality protects fundamental rights, but legislation may override them by necessary implication where the intention is crystal clear. The Curriculum and Assessment (Wales) Act 2021 created a comprehensive framework making relationships and sexuality education mandatory and, read with its express limited exceptions and amendments to the Education Act 1996, removed the former statutory right of excusal in Wales.

Under Article 2 of the First Protocol, the state may prescribe education addressing moral, ethical and social issues if it is conveyed objectively, critically and pluralistically and does not pursue indoctrination. The Code and Guidance were capable of lawful operation and did not authorise indoctrination. Article 2 of the First Protocol is the lex specialis in education, so the Article 9 challenge added no separate issue.

The claimants, parents of children attending or potentially attending maintained schools in Wales, sought judicial review of the Welsh Ministers’ Relationships and Sexuality Education Code and statutory Guidance issued under the Curriculum and Assessment (Wales) Act 2021.

They challenged the mandatory nature of relationships and sexuality education, the removal of a parental right of excusal, the alleged inconsistency of the Code and Guidance with Article 2 of the First Protocol to the Convention, and an alleged breach of Article 9. The central issues were whether a common-law or statutory right of excusal survived, what test governed the lawfulness of the Code and Guidance, and whether their content required or permitted indoctrinatory teaching.

1. Claim dismissed. The common law did not recognise the claimed constitutional parental right to determine or excise particular content from a child’s education in a maintained school. Authorities concerning parental custody, control, education and parental responsibility established powers and duties directed to the child’s welfare, not an enforceable right against the state to withdraw a child from selected lessons.
2. The principle of legality required fundamental rights to be overridden only by express words or necessary implication. The 2021 Act provided a comprehensive curriculum scheme. It described relationships and sexuality education as a mandatory element, required teaching for each pupil, provided only limited individual exceptions, and amended section 405 of the Education Act 1996 so that the former statutory right of excusal applied only in England. Those provisions were wholly inconsistent with an unlimited parental right of excusal and made the statutory abrogation sufficiently clear.
3. The absence of an excusal right was a consequence of the 2021 Act, not the Code or Guidance. A challenge to that absence under the first sentence of Article 2 of the First Protocol would therefore have had to challenge the legislative competence of the Senedd. In any event, the first-sentence argument could not succeed where the second sentence was not breached.
4. The applicable test for the Code and Guidance was whether they could be operated lawfully, or inevitably required unlawful conduct in a material and identifiable or legally significant number of cases. The Guidance was a policy document within A v SSHD; the same substantive test would apply even if the Code were treated as subordinate legislation.
5. Article 2 of the First Protocol required teaching to be objective, critical and pluralistic and prohibited indoctrination. It did not require value-neutral education or guarantee a right not to encounter views opposed to parental convictions. The setting and planning of the curriculum principally fell within the state’s competence.
6. The Code and Guidance, read as a whole and with the statutory requirement of developmental appropriateness, required awareness of diversity, equality, differing views and values, including LGBTQ+ lives. They did not authorise promotion of a particular identity or sexual lifestyle, or teaching designed to make pupils adopt one. The whole-school and cross-cutting approaches could lawfully be implemented consistently with Article 2 of the First Protocol.
7. Article 2 of the First Protocol was the lex specialis in education and teaching. The Article 9 challenge therefore raised no separate issue and failed for the same reasons.