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Legal bid to stop mandatory school Covid-19 testing fails

A legal challenge to mandatory Covid-19 testing for school pupils before they can return to the classroom has suffered a defeat in the Supreme Court.

The case for the parent, who cannot be named for legal reasons, was brought last month against a decision by Diallo Rabain, the education minister, requiring routine testing of children as a condition of entry to government schools.

The rules, in place since last September, also require schools to get 80 per cent student participation in the Covid-19 saliva screening programme to remain open.

Testing, along with the requirement for students to wear masks in the classroom, has faced pushback from parents as well as staff.

The pressure group Us For Them Bermuda called this January for masking to get dropped, citing widespread parental opposition.

A subsequent relaxation of rules, announced last month by Mr Rabain, included making masks optional.

But testing remained in place — in part because Mr Rabain said easing restrictions would “most likely lead to more Covid positives in our school system, which can lead to more students missing critical in-class learning”.

In the Supreme Court last month, the parent testified he believed his ten-year-old daughter had been pressured into submitting to the tests.

Concerns were raised over the quality of remote learning compared with being in the classroom.

The parent, represented by lawyer Peter Sanderson, also maintained that testing contributed to his daughter’s anxiety.

Damages were sought on constitutional grounds, along with harm suffered.

Mr Sanderson’s argument challenged the minister’s power to declare the policy without going to Parliament to settle the matter in law.

He told the court both parents were working full-time and unable to stay at home to supervise their child.

The constitutional argument rested upon whether the test for the virus qualified as a “search” under the right to protection for privacy.

The challenge also invoked the right of children to be in school for education.

But the ruling by Chief Justice Narinder Hargun dismissed the application for judicial review and constitutional relief.

Shakira Dill-Francois, who appeared in court on behalf of the education minister, argued that children aged 5 to 18 were entitled to free education.

But she said no requirement existed for in-school learning, because pupils would be equipped for home learning if unable to enter the building — meaning parents had a choice whether to consent to the saliva test.

Mr Justice Hargun ruled that children had a choice of school or home learning “until conditions improve”.

The Chief Justice also found that the saliva test was “not unduly invasive”.

He wrote that the policy was in place “not only to help reopen the schools safely but to keep schools open for the learning and wellbeing of all students”.

The Chief Justice further ruled that, since “having to quarantine due to Covid-19 is disruptive to learning, unfair to other students and staff and members of their households, it cannot reasonably be said that when the applicant agreed to take the saliva Covid-19 tests, her consent was vitiated by duress”.

He noted the Commissioner of Education’s “detailed explanation of the rationale behind the policy” as heard by the court, along with the expert advice of the Chief Medical Officer.

He concluded the minister’s decision had not amounted to “an unfettered power” and dismissed the application.

Mr Sanderson told The Royal Gazette yesterday he was still awaiting instruction on whether his client would appeal.

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