Grant v John A Cumber Primary School

JurisdictionCayman Islands
CourtGrand Court
Judge(Smellie, C.J.)
Judgment Date18 June 1999
Date18 June 1999
Grand Court

(Smellie, C.J.)

E. GRANT and CHIN (as Guardians ad litem of S. GRANT, a minor)
and
PRINCIPAL OF JOHN A. CUMBER PRIMARY SCHOOL, CHIEF EDUCATION OFFICER and EDUCATION COUNCIL

N.W. Hill, Q.C. and H.D. Murray for the applicants;

P. Lamontagne, Q.C. and A. Warner, Crown Counsel, for the respondents.

Cases cited:

(1) Ahmad v. Inner London Education Auth., [1978] Q.B. 36; [1978] 1 All E.R. 574, followed.

(2) Angeleni v. Sweden (Application 10491/83)HRC(1986), 10 E.H.R.R. 123; 51 D.R. 41, considered.

(3) Anisminic Ltd. v. Foreign Compensation Commn., [1969] 2 A.C. 147; [1969] 1 All E.R. 208, dicta of Lord Reid applied.

(4) Associated Provncl. Picture Houses Ltd. v. Wednesbury Corp., [1948] 1 K.B. 223; [1947] 2 All E.R. 680, applied.

(5) Att. Gen. v. Guardian Newspapers Ltd., (No. 2), [1990] 1 A.C. 109; [1988] 3 All E.R. 545.

(6) B. v. Children”s Aid Socy. of Metropolitan Toronto, [1995] 1 S.C.R. 315; (1995), 122 D.L.R. (4th) 1, observations of La Forest J. applied.

(7) Baptiste (Commr. of Prisons) v. Thomas, [1998] 3 LRC 297; on appeal, [1999] 2 LRC 733.

(8) Bernard v. Luxembourg (Application 17187/90)(1993), 75 D.R. 57, considered.

(9) Brown v. Board of Education of TopekaUNK(1954), 347 U.S. 483; 74 S. Ct. 686.

(10) Chikweche, In re, 1995 (1) ZLR 235; [1995] 2 LRC 93, considered.

(11) Council of Civil Service Unions v. Minister for Civil Service, [1985] A.C. 374; [1985] 3 All E.R. 935, dicta of Lord Diplock, applied.

(12) Dawkins v. Crown Suppliers (PSA) Ltd.UNK, [1993] T.L.R. 44; sub nom. Dawkins v. Department of Environment, [1993] I.R.L.R. 284, considered.

(13) Employment Div., Dept. of Human Resources of Oregon v. SmithUNK(1990), 494 U.S. 872; 110 S. Ct. 1595, followed.

(14) Freeland v. R.UNK(1981), 28 W.I.R. 378, considered.

(15) Garland v British Rail Engr. Ltd., [1983] 2 A.C. 751; [1982] 2 All E.R. 402, dicta of Lord Diplock applied.

(16) Henry v. R.UNK(1993), 46 W.I.R. 135, considered.

(17) Jacques Scott & Co. Ltd. v. Moxam, 1998 CILR 323, applied.

(18) Jones v. R., [1986] 2 S.C.R. 284; (1986), 31 D.L.R. (4th) 569, dicta of La Forest J. applied.

(19) Joseph v. State of DominicaUNK(1988), 36 W.I.R. 216, considered.

(20) Karaduman v. Turkey (Application 16278/90)(1993), 74 D.R. 93, considered.

(21) Maclaine Watson & Co. Ltd. v. Department of Trade & Indus., [1989] 3 All E.R. 523, dicta of Lord Oliver applied.

(22) Mandla v. Dowell Lee, [1983] 2 A.C. 548; [1983] 1 All E.R. 1062, distinguished.

(23) Matadeen v. Pointu, [1999] 1 A.C. 98; [1998] 3 LRC 542, dicta of Lord Hoffmann applied.

(24) Minister for Immigration & Ethnic Affairs v. TeohUNK(1995), 183 C.L.R. 273; 128 Aust. L.R. 353, considered.

(25) Mohammed v. MoraineUNK(1995), 49 W.I.R. 371; [1996] 3 LRC 475, distinguished.

(26) People v. Lewis(1985), 496 N.Y.S. (2d) 258; on appeal, (1986), 510 N.Y.S. (2d) 73; 502 N.E. (2d) 988, considered.

(27) R. v. Criminal Injuries Compensation Bd., ex p. A., [1999] 2 A.C. 330; [1999] C.O.D. 244, considered.

(28) R. v. Environment Secy., ex p. Ostler, [1977] Q.B. 122; [1976] 3 All E.R. 90.[1977] Q.B. 122; [1976] 3 All E.R. 90.

(29) R. v. HarroldUNK(1971), 19 D.L.R. (3d) 471; 3 C.C.C. (2d) 387, followed.

(30) R. v. HinesUNK(1971), 12 J.L.R. 545; 17 W.I.R. 326, considered.

(31) R. v. Home Secy., ex p. BrindELR, [1991] A.C. 696; sub nom. Brind v. Home Secy., [1991] 1 All E.R. 720, followed.

(32) R. v. LarmanUNK(1964), 8 J.L.R. 461; 6 W.I.R. 550, considered.

(33) R. v. Ministry of Defence, ex p. Smith, [1996] Q.B. 517; [1996] 1 All E.R. 257, followed.

(34) R. v. Registrar Gen., ex p. Segerdal, [1970] 2 Q.B. 697; [1970] 3 All E.R. 886, dicta of Buckley, L.J. applied.

(35) Reed v. Faulkner(1988), 842 F. (2d) 960, considered.

(36) Robinson v. FotiUNK(1981), 527 F. Supp. 1111, considered.

(37) Saumur v. City of Quebec, [1953] 2 S.C.R. 299; [1953] 4 D.L.R. 641, dicta of Rand J. applied.

(38) Smith v. East Elloe Rural District Council, [1956] A.C. 736; [1956] 1 All E.R. 855, followed.

(39) South Place Ethical Socy., In re, Barralet v. Att. Gen., [1980] 1 W.L.R. 1565; [1980] 3 All E.R. 918, considered.

(40) Spiers v. Warrington Corp., [1954] 1 Q.B. 61; [1953] 2 All E.R. 1052, followed.

(41) Streeter v. Immigration Bd., 1998 CILR 366, observations of Smellie, C.J. applied.

(42) Tavita v. Minister of Immigration, [1994] 2 NZLR 257; [1994] 1 LRC 421, considered.

(43) Thomas v. Review Bd. of Indiana Employment Security Div.UNK(1981), 450 U.S. 707; 101 S. Ct. 1425, dicta of Burger J. applied.

(44) US v. BauerECAS(1996), 84 F. (3d) 1549, considered.

(45) US v. MacIntoshUNK(1931), 283 U.S. 606; 51 S. Ct. 570.

(46) US v. SeegerUNK(1965), 380 U.S. 163; 85 S. Ct. 850, considered.

(47) Ward v. Board of Blaine Lake School Unit 57UNK, [1971] 4 W.W.R. 161; sub nom.Re WardUNK(1971), 20 D.L.R. (3d) 651, followed.

(48) West Virgina State Bd. of Education v. BarnetteUNK(1943), 319 U.S. 624; 63 S. Ct. 1178, dicta of Frankfurter J. applied.

(49) Wisconsin (State) v. YoderUNK(1972), 406 U.S. 205; 92 S. Ct. 1526, considered.

(50) Yanasik v. Turkey (Application 14524/89)(1993), 74 D.R. 14; 16 E.H.R.R. CD5, considered.

Legislation construed:

Education Law, 1983 (Law 35 of 1983), s.2: The relevant terms of this section are set out at page 340, lines 13–14.

s.3: The relevant terms of this section are set out at page 340, lines 6–9.

s.13(1): The relevant terms of this sub-section are set out at page 340, lines 15–16.

s.14(1): ‘…[I]t is the duty of the parent of every child of school age to cause such child to attend at a suitable school on every day on which such school is open….’

s.16: ‘It is the duty of the parent of a child on or before the child attains school age to register the child at the Department….’

s.22(4): The relevant terms of this sub-section are set out at page 319, lines 12–15.

(5): The relevant terms of this sub-section are set out at page 340, lines 34–39.

(6): The relevant terms of this sub-section are set out at page 340, lines 40–44.

(9): The relevant terms of this sub-section are set out at page 341, lines 1–3.

Convention Against Discrimination in Education (Paris, December 14th, 1960; 429 U.N. Treaty Series 93), art. 1(1): The relevant terms of this paragraph are set out at page 333, lines 5–9.

Convention on the Rights of the Child (New York, November 20th, 1989; UK Treaty Series 44 (1992), Cmnd. 1976), art. 3(1):

‘In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.’

art. 28: The relevant terms of this article are set out at page 333, lines 13–24.

art. 29: The relevant terms of this article are set out at page 333, lines 26–42.

art. 33: The relevant terms of this article are set out at page 333, line 44 – page 334, line 4.

European Convention for the Protection of Human Rights and Fundamental Freedoms (Rome, November 4th, 1950; UK Treaty Series 71 (1953), Cmnd. 8969), art. 9(1): The relevant terms of this paragraph are set out at page 332, lines 23–27.

art. 9(2): The relevant terms of this paragraph are set out at page 332, lines 28–32.

First Protocol (Paris, March 20th, 1952; UK Treaty Series 46 (1954), Cmnd. 9221), art. 2: The relevant terms of this article are set out at page 332, lines 34–48.

International Covenant on Civil and Political Rights (New York, December 16th, 1966; UK Treaty Series 6 (1977), Cmnd. 6702), art.

18(4): The relevant terms of this paragraph are set out at page 332, line 43 – page 333, line 2.

Universal Declaration of Human Rights (G.A. Res. 217 (III)A of December 10th, 1948, U.N. Doc. A/810, at 71 (1948)), art. 18: The relevant terms of this article are set out at page 332, lines 14–18.

Human Rights-freedom of religion-religion-functional test requires sincere belief occupying same place as belief in God in life of orthodox believer-theistic test requires faith in and worship of deity-Rastafarianism is recognized religion by either test

Administrative Law-judicial review-international conventions-human rights conventions provide no direct grounds for review of administrative decision unless incorporated into domestic law-may provide background standard for Wednesbury unreasonableness if enabling legislation silent as to criteria for decision

Education-schools-exclusion of pupil-decision to expel Rastafarian pupil for wearing dreadlocks not reviewable as illegal unless procedurally flawed, contravenes Education Law or school rules or pursues unlawful objective

Education-schools-exclusion of pupil-child”s human rights subject to Education Law and school rules-expulsion of Rastafarian pupil for wearing dreadlocks not Wednesbury unreasonable simply because may infringe pupil”s religious freedom

The applicants applied for judicial review of the respondents” decision to expel their child from a Government school.

The applicants were Rastafarians. The first applicant”s application to register his five-year-old son with a Government primary school was refused by the Education Council on the ground that the wearing of Rastafarian ‘dreadlocks’ would contravene the school rules. The rules provided that ‘boys” hair should be cut low and combed’ and that ‘dreadlocks and designer hairstyles’ were prohibited. The first applicant protested against the Council”s decision and sent his son to school at the beginning of term. The school again referred the matter to the Council, which voted against admitting the child with his current hairstyle and informed the first applicant of his right to appeal against the decision. The child continued to attend school. His father protested again, stating that he intended to appeal, citing his son”s right to a primary education and deploring religious and racial discrimination.

At a meeting with the applicants, the Council informed...

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