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Buachaill
Buachaill, Barrister
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Experience:  Barrister 17 years experience
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Can a child take his local UK council to the European Court

Resolved Question:

Can a child take his local UK council to the European Court of Human Rights for failing to supply him with an appropriate school place?

My girlfriend's son has been out of mainstream education since Easter 2013. She withdrew him from his then Academy school to send him to a family member in Gambia to be educated there as she was suffering severe health problems at the time ( she also has learning difficulties which doesn't help her pursue here son's case). Unfortunately the proposed carer in The Gambia passed away before the boy could start school there so he came back to the UK only to find that Southwark Council could not or would not provide him with an appropriate school place despite repeated requests and even despite intervention of Simon Hughes, the local MP.

The boy, who was 15 in November 2013, has been on Police Bail since he was arrested in mid 2013 but has never been charged with any offence or received any caution which may or may not have given Southwark Council the idea of making him attend a special education unit (since this January) where he receives 2 days of education per week (in Maths and English only). This does not constitute an adequate or appropriate education for the boy who has the intention and intellectual ability to be a Surgeon.

Due to his age and the fact that he should be studying for a wide range of GCSEs to take in May/June 2015 any action must have in swift remedial action so that the child doesn't lose his educational chance.
Submitted: 2 years ago.
Category: Law
Expert:  Buachaill replied 2 years ago.

Buachaill :

1.. At the outset, you need to realise that one of the requirements for the admissibility of a case before the European Court of Human Rights is that the applicant has to have exhausted domestic remedies before he can take a case there. Accordingly, this child would have to first have started legal proceedings in the UK concerning the lack of a school place and lost. Or else, an opinion of a Queen's Counsel would have to be obtained that no legal remedy would be available to him as the law stands in England. This is not the case, as the child can litigate with Southwark Council in the UK as there is a right to education recognised in the Human Rights Act. So here the child must first exhaust his legal remedies in the UK before he can take a case to the ECHR. I would suggest that if you are the child's parent or guardian that you take a judicial review application challenging Southwark Council's decision to make him attend a special education unit. This decision is unreasonable as he is of high academic and intellectual ability and lacks proportionality to the fact he has never been charged with any offence. So I would suggest you first challenge this decision and get the child into mainstream education. Here if a place is denied to him, you again judicially review that decision as each local authority has an obligation to provide adequate education for all children within its remit. Should Southwark Council fail to do that, there is a legally justicable right here.

Customer:

Many thanks for your reply. How does a Judicial Review get started and who should the plaintiff/complainant be, the single mum, the son or both? Would legal aid would be available as neither have assets or any income other than benefits? Hopefully it wouldn't take too long to get the case going as time is of the essence for this young man's

Customer:

future.

Buachaill :

2. The action would be taken by the mother or father as next friend of the child. This is the method whereby legal actions are taken by children. A judicial review starts by getting papers issued by a lawyer which would include an affidavit averring to the facts being sworn by the person taking the legal action. Legal papers would also be prepared to deal with the substantive aspects of the action. I would advise that an application for legal aid be made. As the family are on benefits, they will qualify for legal aid.

Buachaill, Barrister
Category: Law
Satisfied Customers: 10276
Experience: Barrister 17 years experience
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