[2025] UKUT 308 (AAC)

The Appellant argued that the School was under an implied statutory duty to disclose the Slides to her. This prevented, as a matter of law, any obligation of confidence arising to keep the information within the Slides secret.

The implied duty to disclose arose, argued the Appellant, as a necessary implication of the parental right under section 405 EA 1996 to withdraw a child in part from sex education (various authorities about statutory implications were cited). It meant that parents were entitled to sex education curriculum materials in advance of any lessons taking place. In the absence of such a duty, the parental right to withdraw in part would be meaningless. Such an entitlement was supported by the Statutory Guidance and the terms of a letter sent to schools in England by the Secretary of State for Education on 31 March 2023. If curriculum materials are not provided by a school, a FOIA request can be made as a ‘last resort’ to obtain information that a school should have freely disclosed. If FOIA is used, the request for information will not be defeated by section 21 of FOIA. The Commissioner’s argument that, if the Appellant was right that section 405 included an implied duty to disclose curriculum materials, section 21 would apply was inconsistent with the Commissioner’s own guidance.

The Commissioner’s argument that, if section 405 EA 1996 includes a duty to disclose, it is a duty to disclose to the Appellant whereas disclosure under FOIA is to be world at large, missed the point. The Appellant should not have needed to resort to FOIA. If the School had acted correctly, SoSE would have been told that parents needed to be allowed access to their materials. SoSE should have known that the information was disclosable and had the opportunity to ‘build this into the price of the service’.

The implied duty to disclose arose from the language of section 405 EA 1996 but was given further weight by ‘the parental right to educate their children how they see fit’ which itself reflected the requirements of Article 1 of Protocol 1 to the European Convention on Human Rights.

The existence of separate statutory obligations placed on schools regarding the making statements of sex education policy was a neutral point, and the Commissioner wrongly suggested otherwise.

Even if the Appellant was wrong that section 405 EA 1996 included an implied duty to disclose information, the special sensitivity of sex education meant that parents should still be supplied with sufficient information to make a decision as to whether their child should attend sex education. This was relevant to ‘the test’ under section 41 of FOIA.

The Appellant disputed the Commissioner’s argument that there was limited public interest in disclosure. The Commissioner failed to take into account the School’s failure to vet the material in advance, ‘concerning’ material on SoSE’s website, the daughter’s report that matters unrelated to consent were taught at the Session, that schools should not, as a matter of general principle, be required by third parties to keep curriculum material secret, and the public interest in knowing how public funds are expended on sex education.