In his judgment on the unsuccessful attempt by two families to get their children into Downfield primary in Dundee last August, Lord Cameron rebuked a sheriff who had ruled in favour of the parents for straying into the preserve of the education authority.
The outcome of the case was keenly awaited by authorities concerned that Sheriff Richard Davidson's ruling would destroy school catchment areas and open the floodgates to unrestricted parental choice. The case led the Education Minister to announce a review of the placing request arrangements.
Elizabeth Maginnis, the authorities' education spokesperson, commented:
"Councils want to accommodate the wishes of parents as far as possible, but this cannot be open-ended. The capacity of buildings and the rules about class sizes have to be taken into account also."
The decision was welcomed by John Kemp, Dundee's education convener, who regretted the experience which the parents and their children had to go through. But he said the sheriff's ruling "would have resulted in chaos on placing requests throughout the country and led to similar distressful situations many times over".
Councils have been pressing the Scottish Office to remove the right of appeal to a sheriff in favour of the English system of fixed intakes. Bill Coyle, a consultant who has been involved in 300 disputes between parents and education departments, has dismissed court proceedings as a "pantomime".
Lord Cameron stated in his judicial review: "The statutory right of parents to choose where their child will be educated is qualified in that an education authority shall have regard to that principle so far as it is compatible with the provision of suitable instruction and training and the avoidance of unreasonable public expenditure."
Dundee City Council estimated that if the two boys had been admitted to Downfield primary this session, it would have cost an additional pound;100,000 for extra classroom accommodation. Lord Cameron said decisions on priorities were a matter for the council not the sheriff. Sheriff Davidson accepted that pound;100,000 "is plainly significant expenditure" but upheld the placing requests on two grounds - that the journey to the boys' zoned schools was "patently far too hazardous for children of primary 1 age" and that children from their area had gone to Downfield for at least 20 years.
Although Liam McKenzie, then aged four, and Iain Muir, who was five at the time, live respectively 600 metres and 750 metres from Downfield, they are not within its catchment area. The sheriff was exercised that the council proposed to send Liam to Dens Road primary, 1,750 metres away, and Iain to Clepington primary, 2,645 metres from his home.
The sheriff said the boundary arrangements were "just plain daft" on the basis of "plain simple geography". He did not share any "diffidence" on this matter arising from the fact that the fixing of catchment areas could not be challenged through the courts.
Lord Cameron ruled that Sheriff Davidson had gone "far outwith the remit which was given to him", saying he had made unwarranted assumptions about hazardous journeys and the historical expectations of parents.
His Lordship observed that Dundee's school boundaries had been redrawn following public consultations. "What the sheriff has done is no more than to use the opportunity in these appeals to force upon the authority properly charged with the matter of determining the proper allocation of resources and priorities within such resources, as well as the delineation of boundaries for each school's catchment area, changes in the policies which had been adopted or founded upon in refusing the placing requests."
While the sheriff recognised that health and safety matters were paramount as far as classroom accommodation was concerned, "he appears to have taken no account of the effect of his determination in that regard". Sheriff Davidson "failed to take proper account of the extent of his jurisdiction" and therefore acted unreasonably.
Neither boy is attending their parents' or the authority's chosen school. Liam is continuing to attend Jessie Porter nursery while Iain is at St Peter and Paul's primary.