[2025] UKUT 308 (AAC)

There are different ways in which a parent may engage with the right to request excusal / right to withdraw under section 405 EA 1996. This is so obvious that it must have been anticipated by Parliament when enacting section 405.

A parent may, as a matter of personal principle, decide that their child should not receive any relevant sex education of any sort at school. In such a case, the parent does not need to know anything about the content of proposed relevant sex education in order meaningfully to exercise their section 405 right.

Other parents may not object in principle to their child receiving any relevant sex education at school. In other words, they might object but this depends on the content of relevant sex education. If any confirmation is needed that Parliament enacted section 405 EA 1996 with this cohort of parents in mind, it is shown by section 405’s reference to a child being “partly excused” from relevant sex education.

Education involves the transmission of information. A parental right to withdraw a pupil from a type of education is therefore a right to prevent a type of information from being transmitted to the pupil. For a parent who does not object in principle to all relevant sex education, section 405 EA 1996’s right to prevent information from being transmitted to a child would be ineffective unless the parent were enabled to apprehend what that information is. For many parents, the right of withdrawal under section 405 would be devoid of value if it were not associated with the provision of some detail of proposed relevant sex education or the means of obtaining that detail. As Henry LJ said in Halki Shipping Corporation v Sopex Oils Ltd [1998] 2 All ER 23, at [75], “the presumption is that Parliament does nothing in vain”. Parliament would have acted in vain in relation to those parents who do not, as a matter of principle, object to all relevant sex education, had it conferred a right to withdraw that could not meaningfully be exercised.

It is not disputed that a parent requires ‘sufficient information’ in order meaningfully to exercise the right of withdrawal under section 405 EA 1996. The Commissioner relies, at least in part, on a maintained school’s separate statutory obligations to consult parents on their sex education policy statements and provide access to such statements, to supply this sufficient information. However, children move in and out of schools so that, at a given time, there will always be some parents who have not been consulted. In any event, all that is required by section 80B(1) EA 2002 and section 404(1)(a) EA 1996 is a written statement of a school’s “policy with regard to the provision” of sex education, which is a broadly framed duty capable of being satisfied in a multitude of ways and with varying degrees of precision. I acknowledge that statements must also include a ”statement of the effect” of the parental right under section 405 (see section 404(1A) EA 1996 and section 80B(2) EA 2002). However, compliance with that obligation would not necessarily entail the provision of information about the content of sex education. In my judgment, Parliament did not enact section 405 on the assumption that other statutory requirements would supply parents with sufficient information for a meaningful exercise of the right to withdraw a child from relevant sex education. At any rate, no such requirements have been drawn to my attention.

The Appellant relies on a passage in Bennion on Statutory Interpretation to argue that, in interpreting section 405 EA 1996, the Upper Tribunal should ask whether it is ‘proper’ to find a statutory implication. I agree with the Commissioner that the view expressed in that passage was expressly disapproved by the Court of Appeal in NYKK and should not be followed. The implication must be necessary, that is “one which necessarily follows from the express provisions of the statute construed in their context” (B v DPP).

While the education legislation rightly acknowledges the importance of parental involvement in state-funded education, the reality is that, when all is said and done, and all reasonable efforts made to accommodate parental wishes, education is largely offered to parents of pupils in a state-funded school on a ‘take or leave it’ basis. If a parent does not want to take it, a new school will have to be found for their child. Relevant sex education, however, is treated by Parliament as a special case. Parliament has decided that, for this part of the school curriculum, parents can decide whether it is delivered to their child (or, in the case of statutory sex and relationships education, decide subject to the headteacher’s veto). This is a notable feature of the legislative context. I have already explained why I consider that Parliament must have enacted section 405 EA 1996 on the assumption that, in order to work as intended, a parent may need to be supplied with information about proposed sex education. Since my attention has not been drawn to any other provision of an Act of Parliament that will perform this function, then, in order for this exception to the standard way in which state education is provided to operate as Parliament intended, it is necessary to construe section 405 as including an obligation on a maintained school / the entity which controls the school to provide a parent who wants it with information about a school’s proposed relevant sex education.

At this point, I note that section 408(1) EA 1996 confers power on the Secretary of State to make regulations requiring a maintained school to provide prescribed information to prescribed persons. Section 408 did not feature in argument, but it appears likely that it would permit the Secretary of State to make regulations which require maintained schools to provide parents with prescribed information about sex education (if such regulations already existed, I am sure the parties would have drawn them to my attention). The possibility of regulations being made under section 408(1) does not cause me to revisit the conclusions described above. When Parliament enacted section 405, it did so in the knowledge that no regulations might ever be made requiring the provision to parents of information about sex education.

Do the above conclusions mean that I accept the Appellant’s argument that any parent is entitled to be provided, on request, with all teaching materials for proposed relevant sex education? No, it does not. The fact that Parliament did not consider it necessary to make express provision about providing information to parents about relevant sex education signals that what is required depends on the circumstances of a particular parent and child. What matters is that, in a particular case, a parent who is considering exercising the right of withdrawal has sufficient information to make a properly informed decision. It is important that an interested parent is not left in any reasonable doubt about the content of proposed relevant sex education. If not, the parent may ‘err on the side of caution’ and withdraw their child. The risk is that a pupil may thereby be deprived of education which, had the parent been properly informed, might have been beneficial for the pupil. It would be understandable, and in my view lawful, if a maintained school decided that the best way of avoiding that risk would be to make available to parents teaching materials for proposed relevant sex education.

A parent may well become properly informed, for section 405 EA 1996 purposes, if the Statutory Guidance is followed (I am not going to attempt a definitive answer to that question because there is no need). But assuming the Statutory Guidance does do the job required for a properly informed parental decision under section 405, that would have no bearing on the legal meaning of section 405. It might provide the means of meeting the implied obligation under section 405, but its existence cannot make the obligation itself disappear.

Everything I have just said concerns the case of a parent who is considering exercising the right of withdrawal under section 405 EA 1996 in relation to proposed relevant sex education. The Appellant, however, sought the teaching materials for the Session after it had taken place. Her first request was made on 22 September 2021, which was two days after the Session. The Appellant’s attempts to obtain the Slides were clearly not made with a view to deciding whether to exercise her parental right under section 405 EA 1996 to withdraw her daughter from proposed relevant sex education (in the form of the Session). It was suggested in oral argument that section 405 might require the provision of information in circumstances where a school failed properly to appraise parents in advance of relevant sex education being provided. I am not certain this issue was put before the Tribunal but, in any event, I do not consider it sustainable in the circumstances of this case.

On 16 September 2021 (4 days before the Session) the School informed the Appellant, and presumably other parents, by email that SoSE, who “run trusted, high quality sessions” would be “running age appropriate RSE Sessions on the topic of “Consent” on Monday 20^th September 2021”. The School’s email also informed parents that they had the right to withdraw their child (and attached a proforma withdrawal form), and ended by stating, “if you have any questions, or would like to discuss this further, please do not hesitate to contact me”. In my view, the School’s actions were consistent with section 405 EA 1996. Parents were told the identity of the external provider, the subject of the session and invited to contact the School if they wished to discuss further. The Appellant says she had no reason to doubt the School’s statement that SoSE ran trusted, high-quality sessions but the School would hardly be likely to have surreptitiously commissioned an organisation about whom they had doubts. Even if section 405 might have some ongoing legal effect after relevant sex education has been provided (which I doubt), it would not have been open to the Tribunal, on the evidence before it, to conclude that the School’s pre-Session actions had diluted the Appellant’s section 405 rights so that some remedial provision of information might be necessary to mitigate a parental disadvantage. It follows that the Appellant’s arguments about the utility and effectiveness of her post-Session viewing of the Slides at the School, and SoSE’s uncommunicated post-Session offer to show her and talk through the Slides, cannot succeed (cannot demonstrate a post-Session failure to discharge section 405’s implied obligation).

The Appellant argues that the First-tier Tribunal’s decision failed to acknowledge the parental role in ensuring compliance with the statutory prohibition against promoting partisan political views (section 406 EA 1996) and the requirement to offer pupils a balanced presentation of opposing political views (section 407). I do not doubt the parental role, as described by the Appellant, but this ground of appeal is about something else, namely the parental right to withdraw under section 405.

It is not necessary for me to address the Commissioner’s arguments in relation to section 21 FOIA. As the Commissioner acknowledges, the First-tier Tribunal did not rely on section 21 in dismissing the Appellant’s appeal.

For the above reasons, Ground 1 is not made out.