Isherwood & Ors v Welsh Ministers [2022] EWHC 3331 (Admin) – A new perspective on parental rights in Relationships and Sexuality Education (RSE)?
What is RSE?
Relationships and Sex Education (RSE) is the name given to the curriculum for sexuality education in English schools. Since September 2021, RSE has been mandatory in all English secondary schools, and Relationships Education (without the sex education component) has been mandatory in English primary schools. RSE is aimed at ‘giving young people the information they need to help them develop healthy, nurturing relationships of all kinds’. This includes information on contraception, developing intimate relationships, acceptable and unacceptable behaviour in relationships, resisting pressure to have sex, and understanding human sexuality.
Why is RSE important?
Under the UNCRC, children have a right to access information aimed at the promotion of their health (Article 17); preventive health care, education and services (Article 24); and the right to education (Article 29). Children have a right to access age appropriate, teaching about sex and relationships based on accurate, realistic, non-judgmental information so that they can make informed choices about their gender, sexuality and sexual health, and participate in their lives to the fullest extent possible.
Parental influence on RSE
Although making RSE mandatory in schools is a step in the right direction towards enabling children to access RSE, the current Guidance on RSE places heavy significance on parental involvement in developing the curriculum and in determining their children’s access to the sex education components of RSE.
The Guidance makes several references to the importance of consulting parents, guardians and the community in developing schools’ RSE policies. More importantly, s.405 of the Education Act 1996, allows parents to withdraw their child from the sex education components of statutory RSE. The National Guidance on RSE states that as good practice, schools should encourage a discussion with parents about the benefits of sex education if the right is exercised, but that ultimately, except in exceptional circumstances, parents’ wishes to withdraw should be respected.
Allowing parents to withdraw their children from sex education up until the age of 16 means that younger pupils could miss out on RSE due to parental opposition. Although the age of consent is 16, evidence shows that the national median age at first sexual experience has been declining, and is currently at age 14. This means that children could be sexually active before the age of 16, and yet be prevented from accessing sex education at schools by their parents.
Other effects of this parental influence include self-censorship of the curriculum by schools to ensure that parents do not withdraw children from lessons – because schools have to provide alternative accommodation for children that are withdrawn. It has also been shown to result in a lack of consistency in curricula across schools, particularly as schools select content based on consultation with parents or guardians.
The basis of the parental right to withdraw
The parental right to raise children and direct their upbringing is said to be rooted in religion and spirituality, with parents wishing to bring up their children in accordance with their traditional values. Given that views on sexuality and relationships are often largely intertwined with religion and culture, sexuality education is likely to be a subject that affects religious and cultural values, which is why there are constant “battles” over the sexuality education of children.
In legal terms, the right to withdraw is largely based on Article 2 Protocol 1 (A2P1) of the European Convention on Human Rights (ECHR) on the right to Education, which states that:
“In the exercise of any functions which it assumes in relation to education and to teaching, the State shall respect the right of parents to ensure such education and teaching in conformity with their own religious and philosophical convictions.”
It also finds support in Article 13.3 of the International Covenant on Economic, Social and Cultural Rights (1966); Article 18(4) of the International Covenant on Civil and Political Rights (1966) and many other international treaties.
However, in cases such as Kjeldsen, Busk Madsen and Pedersen v Denmark,[1] Dojan and ors v Germany,[2] and Jimenez Alonso et Jimenez Merino v Spain,[3]to cite a few, the European Court of Human Rights has repeatedly stated that sex education lessons which are objective, critical and pluralistic, can be made compulsory in schools without violating A2P1, because they do not pursue an aim of indoctrination, and therefore do not infringe upon the parental right to educate their children in accordance with their religious and philosophical convictions.
Isherwood & Ors v Wales
More recently, the issue has been considered in Wales, where mandatory Relationships and Sexuality Education has been introduced for children aged 3-16, with no option for parents to withdraw. This was challenged by a group of parents in the case of Isherwood & Ors v Wales,[4] who took issue with the contents of RSE, on religious and philosophical grounds, e.g. they objected to the teaching of ‘sex education’, LGBT relationships, and teaching about transgender individuals. They alleged, amongst other things, that the lack of right to withdraw breached A2P1 as it meant that their children would be exposed to teaching on issues which were against their philosophical and moral convictions.
Mrs Justice Steyn in the High Court reiterated, in line with previous ECtHR rulings, that there was no breach of A2P1 as long as RSE is taught in a manner which does not pursue an aim of indoctrination.
The judge also made several other interesting points:
i. That state teaching should be aimed at pluralism, which is “essential for the preservation of a modern liberal democracy”.
ii. Teaching of RSE should be neutral from a religious perspective, but need not be value neutral – it needed to enable children to deal critically with influences from society;
iii. While parents rights to raise children in accordance with their beliefs should be respected, the ECHR does not guarantee a right not to be confronted with opinions that are opposed to one’s own convictions
Where does Isherwood leave us?
Although Isherwood largely confirms previous decisions of the ECtHR, it also moves the discussion on RSE forward in some respects. Foremost, it places much importance on pluralism as the aim of state education. Secondly, it provides explicit support for trans-inclusive education - at para 206 the Judge agrees with the Defendant’s submission that trans people exist, and therefore that children should be taught about their existence in line with principles of pluralism, equality and respect. Finally, it explicitly recognises that sex education is not value neutral, nor does it have to be – as long as it does not indoctrinate children. We have long known that sex education must be taught as part of a system of values and beliefs, and is impossible to teach it in a vacuum, so this recognition is welcome.
However, the judgment in Isherwood does leave some key questions unanswered. Firstly, in the case, the Judge iterates that it would be a criminal offence for parents to opt their children out of some (sex education) lessons in school. However, she confirmed that parents could still opt their children out of mainstream education entirely – which could be an even bigger threat to children’s right to education. This is an issue which scholars in the field need to consider when pushing for mandatory sex education.
More importantly, there was a lack of recognition that access to RSE is a right of children and young people. In my opinion, for as long as such recognition is not explicit, educational systems will continue to prioritise the wishes of parents at the cost of ignoring the educational and informational needs of children themselves. This may be a reason that school-based sexuality education has been criticised by young people as being “out of touch” with young peoples lives.
It is noteworthy that in Scotland, the Guidance on Relationships, Sexual Health and Parenthood (RSHP) Education, makes specific reference to children’s rights under the UNCRC, and the potential for RSHP to realise these rights. In Wales, the Guidance stipulates that ‘Learning about rights and equity runs through all the strands [of RSE], as well as embedding learning and experience through a rights-based approach to the learning’. It would therefore be interesting to see if these references to children’s rights make their way into judgments in the future.
Comments