The Board of Management of Wilson's Hospital School v Enoch Burke

• Jurisdiction: Ireland
• Judge: Birmingham P.,Ms. Justice Máire Whelan,Mr. Justice Edwards,Mr Justice John Edwards
• Judgment Date: 07 March 2023
• Neutral Citation: [2023] IECA 52
• Docket Number: Appeal Number: [2022 No. 237]
• Court: Court of Appeal (Ireland)

Between/

The Board of Management of Wilsons Hospital School

Respondent

and

Enoch Burke

Appellant

[2023] IECA 52

The President

Edwards J.

Whelan J.

Appeal Number: 2022/237

THE COURT OF APPEAL

UNAPPROVED

JUDGMENT of Ms. Justice Máire Whelan delivered on the 7 ^th day of March 2023

( Concurring with the judgments of The President of the Court and Mr. Justice Edwards)

Introduction

1 . I have had the opportunity of reading and considering in draft form the judgments just delivered herein by the President and Mr. Justice Edwards and I entirely concur with their respective reasoning and conclusions. I make the following supplemental observations.

The statutory framework

2 . The respondent is the Board of Management established pursuant to s.14 of the Education Act 1998 (as amended) (“the Act”). As such, pursuant to Part 4 of the said Act and s.14(2) the respondent Board is mandated to “… fulfil in respect of the school the functions assigned to that school by this Act…”. This clearly encompasses s. 9 in Part 2 of the Act. Section 9(d) provides that:

“A recognised school shall provide education to students which is appropriate to their abilities and needs and, without prejudice to the generality of the foregoing, it shall use its available resources to…

…

(d) promote the moral, spiritual, social and personal development of students and provide health education for them, in consultation with their parents, having regard to the characteristic spirit of the school”

3 . Section 15(1) of the Act identifies the functions and duties of a Board thus:

“ It shall be the duty of a board to manage the school on behalf of the patron and for the benefit of the students and their parents and to provide or cause to be provided an appropriate education for each student at the school for which that Board has responsibility.”

Thus, it is evident from the said sub-section that the duties of the school are child oriented.

Section 61 of the Act provides:

“(1) Subject to subsection (2), the admission policy of a school shall include a statement (in this Part referred to as an ‘admission statement’) that the school shall not discriminate in its admission of a student to the school on—

(a) the gender ground of the student or the applicant in respect of the student concerned,

(b) the civil status ground of the student or the applicant in respect of the student concerned,

(c) the family status ground of the student or the applicant in respect of the student concerned,

(d) the sexual orientation ground of the student or the applicant in respect of the student concerned,

(e) the religion ground of the student or the applicant in respect of the student concerned…”

4 . Section 15(2) further elaborates:

“(2) A board shall perform the functions conferred on it and on a school by this Act and in carrying out its functions the board shall—

(a)…

(b) uphold, and be accountable to the patron for so upholding, the characteristic spirit of the school as determined by the cultural, educational, moral, religious, social, linguistic and spiritual values and traditions which inform and are characteristic of the objectives and conduct of the school, and at all times act in accordance with any Act of the Oireachtas or instrument made thereunder, deed, charter, articles of management or other such instrument relating to the establishment or operation of the school,

(c) …

(d) … ensure that as regards that policy principles of inclusion, equality and the right of parents to send their children to a school of the parents' choice are respected and such directions as may be made from time to time by the Minister, having regard to the characteristic spirit of the school and the constitutional rights of all persons concerned, are complied with,

…

(e) have regard to the principles and requirements of a democratic society and have respect and promote respect for the diversity of values, beliefs, traditions, languages and ways of life in society.”

The characteristic spirit of the school

5 . The characteristic spirit of the respondent school, as referred to in s.15(2)(b) of the 1998 Act (as amended), is expressed as follows: Wilson's Hospital School is a Church of Ireland co-educational post primary school with a Church of Ireland and Anglican ethos under the patronage of the Archbishop and Bishops of the Church of Ireland. “Church of Ireland/Anglican” ethos in the context of a Church of Ireland post primary school means the ethos and characteristic spirit of the Anglican Christian tradition, which aims at promoting:

• • “The education of the whole person regarding their spiritual, physical, intellectual, social, emotional, aesthetic and moral development in harmony with the Christian faith as expressed in the Anglican tradition, which seeks to be characterised by inclusivity in approach, conveying certain values, being reflexive, affirming of the student, and caring. An Anglican ethos is focused on service to the local community as an outworking of the Gospel imperative to reach out to all people in a spirit of engagement and invitation to “come and see” ( John 1:39). The ethos of a Church of Ireland school reflects the communal Scriptural values of the faith community, in a positive and encouraging student-centred understanding of living life in the Spirit of God (Gal 5:25). (emphasis added)

• • An ethos based on the Anglican Christian tradition seeks to nurture and encourage the formation of the intellectual, academic, sporting, social and religious abilities of each child within the framework of the community of faith. A Church of Ireland ethos encourages intellectual diversity of thought and encourages the individual to seek to understand themselves, the world around them and the connection between the world and the Divine. This understanding of school ethos promotes pluralism in thought and living in the context of a Christian school community. Drawing on its Anglican tradition, the Church of Ireland school encourages parental involvement, highlighting the importance of the family in the social and emotional development of the child, and more broadly, the community of the school and church.” (emphasis added)

6 . The core values of the school are said to include “faith, excellence, justice” — which latter value is defined as “ looking for fairness in our dealings with others, seeking to order our lives and the world around us in a context of equality for all people and to address unjust imbalances of power. To embrace compassion for our fellow human beings and to do all we can to make ourselves, our communities and our society conscious of the necessity for compassion, the cause of right and truth.” The core values further include “reflexivity”, being “ open to continually being self-reflective, combating our own biases, desires and motivations and engaging with pluralism of thought.” (emphasis added),

“Affirming”: “Conscious of the importance of affirming to all students and staff that they are valued, supported and loved, that they are unique in themselves, are entitled to live their own lives and not to be judged by any external standards, other than how we all engage with those around them in the world.”

“Caring”: “Focusing on the experience of the young person to ensure that their experience of their time in school is accepting, happy and positive”

and “Community”.

7 . Students of all faiths and none are stated to be welcome at the school provided there is an acceptance of its ethos.

In loco parentis

8 . Mr. Burke teaches German and History at the school. He holds, as he is entitled to, gender critical views based on his religion.

9 . As more fully outlined in the judgments of the President and Edwards J., the initial precipitating event which led to the institution of the within proceedings occurred on 9 ^th May 2022 when the school Principal communicated with staff, including the appellant, that a student at the school henceforth would be known by a new name and the nominated pronoun “they”. The Board characterise the communication from the Principal as “a request”, the appellant characterises it as “a demand”. In an affidavit filed on or about 12 ^th September 2022, the appellant deposed to having stated that the requirement sought by the school Principal vis a vis the student in question was “incompatible with my Christian beliefs, the Christian ethos of the school and the welfare of children.”

10 . On 10 ^th May 2022, the appellant communicated with, inter alia, the school Principal stating:

“Re: Student embarking on a social transition … Can you confirm to me that parents of students in the school have been informed that their children will be told that one of their classmates is to be referred to as “they” instead of “…” and that they must now approve this by referring to the student in this manner? Has the chaplain agreed to this? I am shocked that students in this school are being forced to accept this position.”

11 . The Principal responded approximately twelve minutes later stating: “ All due care has been taken. There is no “agreement” required from Chaplain. There is no suggestion of “force” by or for anyone involved. If you are not willing to include [ ] in your classroom going forward, please make an appointment to see me at our mutual convenience.” The appellant throughout has characterised the communications from the Principal as effectively coercive. As of the morning of 10 ^th May 2022, a primary objection appeared to be directed against the making of any communication to parents of class-mates regarding the proposal to inform the said students of the request concerning the treatment of the socially transitioning student which had been communicated to the school including by the affected student, parents/family in question. In his email of 10 ^th May 2022 at 10.15 to the school Principal the appellant observed: “ it is...