24th October 1997 at 01:00
Q) Our 12-year-old daughter is outstanding at games. She wants to play football and rugby with the boys' teams, but her school refuses to allow her to do so, even though we have given our permission. Is this not discrimination?

A) It may be discrimination, but it is supported by the governing bodies of the two sports concerned. Mixed-gender groups are permitted up to the age of 11, but not thereafter. It may well be that there are women's clubs in your area which she could join, where she might find players as good as she is.

Q) Does not the court's decision in Phelps v Hillingdon, reported in The TES on September 26, make nonsense of your opinion, published in the same edition, that parents could not succeed in obtaining damages for educational failure?

A) Although the question I was dealing with dealt specifically with examination failure, you are right to point out that I may need to modify my general view, in the light of this decision.

Even if it stands, however, it may not change things much. As Nicholas Pyke commented in his report of the case: "Pupils and former pupils will have to prove not simply that an authority was at fault, but that it has behaved quite unreasonably." They also have to prove that damage was sustained as a result.

It is the legal concept of reasonableness which is at the heart of the matter. In the Hillingdon case, the court was persuaded that the nature of the pupil's dyslexia was such that no trained educational psychologist should have failed to recognise it. The school was not held to have acted unreasonably in accepting the psychologist's opinion, but the local authority was liable as her employer.

Although this case went against the LEA, it confirms a principle established in previous judgments, namely that the level of performance required from a teacher, or anyone else professionally engaged with a child's education, is no more than that which may "reasonably be expected" from someone with those qualifications and experience. It is for that reason that Phelps v Hillingdon is unlikely to open the floodgates.

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