[2025] UKUT 308 (AAC)

Section 405 EA 1996 confers on a parent the right ‘to withdraw’ a child from sex education in whole or in part. A purpose of section 405, therefore, is to allow a parent to choose whether their child is to attend some but not all sex education lessons. This right is consistent with the primacy given to parents generally by the Education Acts as well as Article 2 of the First Protocol to the European Convention on Human Rights. How, asks the Appellant, can a meaningful decision be made by a parent as to whether a child is to be withdrawn in whole or in part if the parent is denied access to teaching materials?

Parental primacy in the context of sex education is reflected, and parental rights protected, by domestic legislation. Section 7 EA 1996 allows parents to decide how to fulfil their duty to cause their children to be educated, and section 9 provides a general principle that state education is to be provided in accordance with parental wishes. The parental right to withdraw a child “wholly or partly” from sex education under section 405 EA 1996 reflects these legislative principles, as well as the requirements of Article 2 of the First Protocol, provided that a parent is enabled to exercise the right meaningfully.

The parental right under section 405 EA 1996 may be a total or partial withdrawal from sex education. By permitting partial withdrawal, section 405’s purpose must include enabling parents meaningfully to decide to which parts of sex education they wish their children to be exposed. Accordingly, section 405 imports a necessary implied obligation that parents are to be provided with sex education teaching materials.

The Respondents do not, argues the Appellant, appear to dispute that a meaningful exercise of parental rights under section 405 EA 1996 calls for the provision of some information. The Appellant submits that what is required is provision of any lesson plan and “any teaching materials such as the slides used in this Case”. According to the Appellant’s skeleton argument, this is logical: “to decide whether to withdraw your child you must need to know what is going to be taught in each session (i.e. have the lesson plan), and what materials will be used in the teaching (i.e. have the slides)”. It is also consistent with the Statutory Guidance.

Parents have a crucial role in ensuring that sex education is provided compatibly with section 403 EA 1996, that the stricture against the promotion of partisan political views in section 406 is adhered to, and that pupils are offered a balanced presentation of opposing political views as required by section 407. To perform this role effectively, parents need to know what their children are being taught.

The Commissioner’s argument that all that is required is provision of a school’s statutory sex education policy is inconsistent with the Statutory Guidance. It would fail to give parents “every opportunity” to understand the content of sex education classes and inhibit meaningful exercise of section 405 EA 1996 rights because a policy alone does not tell a parent what is going to be taught and how.

The Commissioner’s argument that, had Parliament intended to impose this implied duty, it could have said so misses the point. The question is not whether the drafter could easily have made express provision, but whether the implication in question is proper. As Bennion, Bailey and Norbury on Statutory Interpretation (Lexis Nexis, 8^th ed’n) says at 11.5, “it is suggested that the question whether an implication should be found within the express words of an enactment depends on whether it is proper, having regard to the accepted guides to legislative intention, to find the implication; and not on whether the implication is 'necessary' or 'obvious’”, and “although caselaw suggests that only necessary implications may be drawn from the wording of legislation, it is submitted that this is too high a threshold, and that an implication may be found where the court considers that it is proper to do so”.

The correct approach requires the purpose of a statutory provision to be considered. Since a purpose of section 405 EA 1996 is to allow parents to withdraw a child from some but not all sex education, achieving that purpose implies a need for parents to be provided with sufficient information to make a withdrawal decision on a rational basis. In the present case that meant lesson plans and the Slides. The statutory duty to consult with parents under section 80B(3) EA 2002, in preparing a RSE policy, does not determine the issue. Information provided during a consultation exercise cannot be sufficient to enable a parent meaningfully to decide whether to partially withdraw their child from sex education.

The First-tier Tribunal erred in law by failing to recognise the extent of section 405 EA 1996’s implied obligation to provide information. The Commissioner now argues, but did not before the Tribunal, that section 21 FOIA could be relied on by the School/Trust if the implied duty is as the Appellant submits. The argument is wrong. As a matter of fact, the information sought by the Appellant was not “reasonably accessible” to her by other means. The Appellant has attempted other reasonable means. She made a formal complaint, but the information was not provided. The Appellant could only compel compliance with section 405 by bringing a claim for judicial review and there is no authority to suggest that judicial review would make the information “reasonably accessible”. Moreover, such an approach would dilute the access rights conferred by FOIA.

The First-tier Tribunal found that there is no implied statutory obligation under section 405 EA 1996 to provide parents with “sufficient information” because the legislation’s purpose could be as well achieved by schools providing sufficient information in accordance with the Statutory Guidance. That is illogical. Whether or not statutory guidance exists cannot determine whether, as a matter of statutory interpretation, section 405 imposes an implied obligation. The Tribunal also overlooked that the Statutory Guidance clearly states that parents should be given every opportunity to understand the content of sex education.

The ’other ways’ in which parents might be provided with sufficient information, described in paragraphs 134 to 137 of the First-tier Tribunal’s reasons, pose considerable practical problems. The ‘ways’ in paragraph 134 are not compatible with the Statutory Guidance. The legal force of statutory guidance given by the Secretary of State for Education, under the Education Acts, is that a school must have regard to it and act in accordance with it unless there is good reason to depart from its provisions (R (Khatun) v Newham LBC [2005] QB 37, at [47]).

The First-tier Tribunal in fact recognised, at paragraph 158, that providing parents with copies of teaching materials would enable more detailed discussion with children, make it easier to take advice and pursue a complaint. Yet the Tribunal failed properly to take this into account in its conclusion. It also failed to acknowledge that providing teaching materials could prevent a complaint from arising where parents, acting with a full understanding, exercised their right to withdraw.

The First-tier Tribunal’s ‘other ways’ finding was inadequately reasoned. A meaningful exercise of the right to withdraw calls for provision of teaching materials. The alternatives in paragraphs 134 to 136 of the Tribunal’s reasons restrict parental access and run counter to the express views of the Secretary of State in her letter of 31 March 2023. It cannot be right for parents to have to sign what would effectively be a non-disclosure agreement in order meaningfully to exercise their statutory right to withdraw.

The First-tier Tribunal also erred by failing to take into account that, in the Appellant’s case, none of the suggested/supposed alternatives ways of providing sufficient information happened. That is why she had to resort to FOIA. The Tribunal should not have relied on SoSE’s abstract generalised offer to view the Slides when, on the facts, such offer was never put to the Appellant. While the Trust gave the Appellant the opportunity to view the Slides, she did not “fully view the same due to misunderstanding the Materials to be confidential in nature, for fear of being bound by a non-disclosure agreement”. In any event, a viewing alone could not have been sufficient. It would not have allowed the Appellant to use the materials if she wished to make a complaint, report a concern to OFSTED or discuss them with her daughter. Moreover, the Secretary of State’s policy stance is that a ‘view only’ option is inadequate. Her letter of 31 March 2023 states that “we would expect schools to take urgent steps to either renegotiate these contracts or find an alternative provider at a suitable time, so that materials can be sent out or made available online to parents”.