Grant v John A Cumber Primary School

• Jurisdiction: Cayman Islands
• Judge: (Zacca, P., Georges and Collett, JJ.A.)
• Judgment Date: 23 February 2001
• Court: Court of Appeal (Cayman Islands)
• Date: 23 February 2001

Court of Appeal

(Zacca, P., Georges and Collett, JJ.A.)

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 appellants;

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

Cases cited:

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

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

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

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

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

(6) Mohammed v. MoraineUNK(1995), 49 W.I.R. 371; [1996] 3 L.R.C. 475, followed.

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

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

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

(10) R. v. Registrar Gen., ex p. Segerdal, [1970] 2 Q.B. 697; [1970] 3 All E.R. 886, considered.

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

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

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

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

Legislation construed:

Education Law, 1983 (Law 35 of 1983), s.13(1): ‘. . . [E]ducation is compulsory for all children of school age.’

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(5): The relevant terms of this sub-section are set out at para. 5.

(6): ‘When a report is made pursuant to sub-section (5) hereof the Chief Education Officer shall investigate the matter and deal with it as he deems necessary; and he may suspend the pupil for a further thirty days, and shall inform the Council which shall thereupon decide on the matter and the Council may expel the pupil.’

(9): The relevant terms of this sub-section are set out at para. 5.

Human Rights-freedom of religion-religion-functional test requires sincere belief occupying same place as belief in God-theistic test requires faith in and worship of deity-Rastafarianism is recognized religion by either test-dreadlocks important part of observance

Administrative Law-judicial review-international conventions-human rights conventions no direct basis for review unless incorporated into domestic law-may provide background standard for Wednesbury unreasonableness

Education-schools-exclusion of pupil-for purposes of Education Law, s.22(5) and (6), child”s attendance in contravention of school rules may be ‘act’ detrimental to school even though effectively parental act

Education-schools-exclusion of pupil-child”s human rights subject to Education Law and school rules-expulsion of Rastafarian pupil for wearing dreadlocks may be Wednesbury unreasonable if common law right to religious freedom infringed without good reason-duty on Education Council to consider exemption even if none formally requested

The appellants sought judicial review by the Grand Court of the respondents” decision to expel their child from a Government school.

The appellants were Rastafarians. The first appellant”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 Rasta-farian ‘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. When the boy was sent to school, the Council again voted against admitting him with his current hairstyle and informed the appellants. The child continued to attend school.

After an appeal by the child”s father, the Council ruled that the school”s policies had to be upheld, giving as their reasons the association of Rastafarianism with illegal drug use, that the wearing of dreadlocks was not essential to a Rastafarian, and that dreadlocks were unacceptable to Caymanian society and the dress code aimed to ensure that pupils did not suffer prejudice because of their appearance. The child continued to attend school but was twice suspended and ultimately expelled under the Education Law, s.22 on the basis that he had committed an act such that his presence was likely to have a detrimental effect on other pupils or on the school. He then was ineligible for admission to any other Government school without the Council”s consent.

The appellants applied for judicial review of the decision to expel on the grounds that it was (i) in breach of their freedom of religion; (ii) illegal as being ultra vires the school rules and the Education Law; and (iii) Wednesbury unreasonable.

The Grand Court (Smellie, C.J.) held, inter alia, that the Rastafarian faith was a religion at common law, whether the court applied the ‘functional’ test or the ‘theistic test,’ but that dreadlocks were a symbol of adherence to the faith rather than an essential tenet of it. Freedom of religion was subject to and governed by the law. The provisions of international conventions which had not been incorporated into domestic law could be relied on only indirectly as a background standard by which to assess the reasonableness of the decision to expel. The decision was not illegal, as the respondents were entitled to regard the boy”s repeated attendance in contravention of the Council”s earlier decisions as an act which was detrimental to other pupils. Moreover, it was not unreasonable, since the rules did not have a dis-criminatory purpose and had been upheld to achieve uniformity and out of genuine concern not to be perceived as condoning illicit drug use. The proceedings in the Grand Court are reported at 1999 CILR 307.

On appeal, the appellants submitted that (a) Rastafarianism was a religion, the observance of which was protected at common law, since it

embraced the concept of man”s relation to divinity and involved worship and prayer; (b) the wearing of dreadlocks was a fundamental part of a Rastafarian”s identity; (c) while the school principal had a right to make reasonable school rules, it was unreasonable to enforce those rules in every circumstance; and (d) the terms of international human rights con-ven-tions provided a standard against which to judge the reasonableness of the decision.

The respondents submitted that (a) Rastafarianism was not a religion according to the ‘theistic test’ of that term, since the element of worship was absent or, alternatively, was to be disregarded as involving the use of drugs; (b) by the first appellant”s own admission, the wearing of dread-locks was not essential for a Rastafarian; (c) the rights of the child were subject to the school rules, which had been properly enforced in accordance with s.22(5) and (6) of the Education Law; and (d) the reasonableness of their decision was to be assessed in the light of the welfare of the school and the court could not simply substitute its own view.

Held, allowing the appeal:

(1) Rastafarianism was to be recognized as a religion whichever test was adopted. It satisfied the functional test, as it entailed a sincere belief which occupied the same place in the life of a Rastafarian as a belief in God would fill in the life of an orthodox believer, and the theistic test was satisfied by Rastafarians” faith in the existence of a higher power and submission to and veneration of a superior being. The fact that the use of marijuana, the Rastafarian ‘holy herb,’ was illegal in the Cayman Islands was irrelevant to the classification of the appellants” beliefs as religious, since not all jurisdictions criminalized its use (paras. 16–21).

(2) The evidence showed that the wearing of dreadlocks had symbolic significance for Rastafarians and that the appellants were sincere and committed adherents to the faith. Notwithstanding the first appellant”s remark to the Council that one did not have to wear dreadlocks to be a Rastafarian, the court had properly accepted expert evidence that they were an important part of the observance of the religious principles by which the appellants had raised their son (paras. 21–23).

(3) The court had also rightly found that freedom of religion was not an absolute common law right, and must be exercised within the bounds of restrictions laid down by domestic legislation. The school principal was entitled to make and enforce reasonable rules regulating pupils” appear-ance, the respondents” actions under s.22(5) and (6) of the Education Law were not per se unlawful, and a pupil”s attendance contrary to the school rules at the instigation of his parents could be construed as ‘an act’ by the pupil which might be detrimental to the school. However, the decision to enforce a rule could be set aside on the ground that it was unreasonable in the circumstances, and although no directly enforceable rights could be derived from human rights conventions which were unincorporated into

domestic law, their provisions were relevant as...