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Parents again lose challenge over school Covid-19 testing

Diallo Rabain, the Minister of Education (File photograph by Blaire Simmons)

The parents of a 10-year-old girl who sued the Minister of Education for making her take a Covid-19 test in order to attend school have lost their case a second time.

The Court of Appeal found that Diallo Rabain’s “executive decision” to impose the self-administered, supervised saliva tests to limit the spread of the virus in public schools during an “unprecedented pandemic” was legal.

The child, who has a history of anxiety and is referred to only as “AB” in the judgment, was a student at the Gilbert Institute in Paget when public schools reopened in October 2021.

The child’s parents claimed Mr Rabain’s requirement for all students and staff to take a PCR test with a negative result before arriving for the start of term was a breach of her constitutional right not to be searched without her consent.

They said the minister should have tabled legislation to impose the testing regime but did not have the lawful authority to do it by way of an executive decision.

The child took the test under duress, her father alleged in an affidavit, because “forced remote learning” was detrimental to her health and was “far inferior to in-person learning in school”.

The parents said that unless she took the test they would have needed to move her to a private school, employ a home tutor or take time off work, effectively forcing their hand and making it non-consensual.

But the panel of three appeal judges upheld a ruling by the Chief Justice from April last year that found the saliva test was “not unduly invasive” and the testing 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”.

Sir Maurice Kay, Justice of Appeal, said in a written judgment that the “reasonableness of the policy” was irrelevant to the issue of consent because even the best-intentioned policies could be implemented coercively.

Fellow judges Sir Christopher Clarke, president of the Court of Appeal, and Geoffrey Bell agreed with him that the girl’s appeal fell at the first hurdle because her parents had a choice.

“I conclude that even if it may attract conscientious objection, the testing procedure in issue in this case did not coerce students or their parents into a decision that can be described as non-consensual or the result of duress,” wrote Sir Maurice.

He added that he came to that conclusion through different reasoning than Narinder Hargun, the Chief Justice – who he said “was wrong to feed the rationale of the policy into his consideration of consent” – but it meant there was no breach of any constitutional right and the case “becomes unsustainable”.

The judgment also considered whether the minister had lawful authority under the Occupational Safety and Health Act to impose testing requirements.

Sir Maurice wrote: “There was ample evidence before the court of the ways in which schools acted as vectors of Covid-19 infection.

“If the minister had done nothing to contain the risks, he would no doubt have been vulnerable to liability …” under certain sections of the Act.

The judge added: “In these circumstances, I consider that OSHA did provide the necessary lawful authority to act.”

AB was represented at the appeal hearing in November by lawyer Mark Diel, instructed by Peter Sanderson.

Deputy Solicitor-General Shakira Dill-Francois represented the education minister.

· To read the judgment in full, click on the PDF under “Related Media”.