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Parent wins right to take school Covid case to Privy Council

A parent has been given leave to bring their case over Covid to the Privy Council (File photograph)

A parent who launched a legal action against the Minister of Education over Covid testing in schools has been given permission to bring the case to London’s Privy Council.

The parent, who cannot be named for legal reasons, challenged rules put in place in 2022 that required public school students take part in routine testing as a condition of entry.

While the case was unsuccessful in the Supreme Court and the Court of Appeal, the parent sought to appeal their case to the higher court.

In a ruling delivered late last month, written by Sir Christopher Clarke, the Court of Appeal allowed the appeal to progress.

“This dispute, which has a number of possible ramifications both legal and factual, is again, one which appears to me to be a genuine one,” Sir Christopher wrote.

“In those circumstances I forbear from any prolonged analysis of it. And, as with the issue of consent, the fact that this court has rejected the applicant’s case does not deprive the issue of its genuine disputability.”

The case for the parent was first brought in 2023 against a decision by Diallo Rabain, the education minister, requiring routine testing of children as a condition of entry to government schools.

The rules, which have subsequently been lifted, also required schools to get 80 per cent student participation in the Covid-19 saliva screening programme to remain open.

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

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

The parent, represented by lawyer Peter Sanderson, sought damages 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 constitutional right to protection for privacy.

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

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

Mr Justice Hargun ruled that children had a choice of school or home learning “until conditions improve” and 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 Court of Appeal upheld Mr Justice Hargun’s ruling later that year finding the appeal “unsustainable” as no constitutional breach was established.

However, Mark Diel, who represented the parent before the Court of Appeal, argued the case should be allowed to continue to the Privy Council on the basis that there was a genuinely disputable issue related to a constitutional right.

He said that the primary issue was whether the Covid testing regime was coercive.

Mr Diel said in the case before the court, the student had a history of anxiety and that not being allowed to return to school in-person would be detrimental for her.

He continued to argue that the quality of education offered through remote learning was lower than in-person education and remote learning was more burdensome as both of the students parents worked full time.

However, counsel for the Government said the child was not forced to take the test and they did consent to the testing without coercion or duress.

Sir Christopher wrote in the decision: “In my view the above issue, which is critical, and which depends in part on the ambit of the words ‘except with his consent’, is a genuinely disputable one.

“It has not ceased to be so because this court has reached a conclusion on it which is adverse to the applicant.”

While counsel for the Government also argued that the case was now purely academic as the testing regime has since ended, Sir Christopher said the case did not seem to be entirely academic or purely hypothetical.

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