More exploit loopholes in Ulster appeals
One lawyer said the floodgates could open for families claiming special circumstances in their quest for coveted grammar school education. This year, almost all 11,750 children with grades A, B and C - the top 45 per cent of the ability range - are chasing 8,700 places.
Another lawyer on the losing side claimed that the selection system for grammar school could never be made foolproof, saying: "The fools are always too clever for us."
This year's transfer procedure has been more of a fiasco than usual. First, the Department of Education was forced to cancel the selection test in October after questions were leaked. All pupils had to sit a third test in December.
Many schools, including those involved in last week's judicial reviews, failed to apply their selection criteria correctly, leading to numerous appeals to independent tribunals. In the Southern area, 56 of the 116 appeals were upheld. Around 30 appeals were upheld in Belfast out of 90 lodged.
The latest blow to the system was delivered when the High Court quashed three decisions by appeals tribunal to refuse grammar school places to pupils. It ordered the cases to be heard again by different tribunals.
In a judgment with important implications for coming years, Mr Justice Girvan ruled that the tribunals erred in law. He ruled that tribunals must first ask if the school properly applied its criteria in refusing a place to a pupil; if not, they must direct the school to admit the pupil.
Tribunals may reject the appeal if they decide that even if the school had applied the criteria properly it would have turned down the child. But, contrary to normal practice, the judge said tribunals could not substitute their own decisions for those of the schools. They must be satisfied a school would have refused a place before rejecting an appeal.
In quashing the decisions and sending them back for a new hearing, he ordered tribunals to consider the proper interpretation of their role. In a further attack on the appeals procedure, Mr Justice Girvan said he was surprised the tribunals had not given grounds for their decisions to refuse places and even more surprised that counsel stated that most do not give reasons.
He noted that statutory regulations required tribunals to give grounds for rejecting appeals but stopped short of striking down the decisions on that basis as well. On the facts before him, he was satisfied the child was not hindered in arguing her case at the judicial review by the tribunal's failure.
The main case involved a pupil from St Mary's Primary School in Banbridge, who applied for admission to Our Lady's Grammar School, Newry. Affidavits from her parents and doctor said she had suffered sleep disturbance and nightmares at the prospect of taking a third test. The report from the primary school showed her as well above average on all 11 aspects of English, mathematics and science.
The girl gained a grade B, but the parents argued that special circumstances should be taken into account.
On appeal, the tribunal found that Our Lady's had not applied its criteria properly. Instead of first deciding which B-grade pupils should be upgraded to A on the basis of special circumstances, it admitted 117 pupils with grade A, leaving only three places for grade B applicants.
The tribunal chairman said in his affidavit that the members felt the problems arising in this case would have applied across the board, since all pupils had to take the third test. The special circumstances were not sufficient to warrant an upgrading from grade B to A.
Mr Justice Girvan made clear during the presentation of arguments by counsel that the appeals tribunal cannot make up its own mind on this issue. "If there is doubt as to what the school would have done if it had applied the criteria the tribunal should fall back on the Act and give her a place," he said. He also indicated his disapproval of the tribunal's failure to give grounds for rejecting the appeal until the chairman wrote his affidavit in response to the judicial review. "It is easy for a tribunal to give reasons for its decision several weeks later, but it has not given its minutes or records as evidence".
Since he found in favour of the tribunal only on the narrow grounds that the child was not prejudiced in this case, the door has been opened for a wider challenge next year unless tribunals change their practice.
Our Lady's lost a second case in which special circumstances were claimed because a child was severely affected by the death of her father at the time of the tests.
In the third case, a boy claimed special circumstances when applying to Abbey Grammar School, also in Newry, after his father was involved in a car accident the day before the second test.
Mr Justice Girvan said it would be unsafe to let the decision stand because of inconsistencies between the affidavit of the appeals tribunal chairman and the documentation provided.
A fourth case, settled before the hearing, involved a complex mathematical formula used by the Convent Grammar School in Strabane to allocate places once the A grades have been admitted.
Calculators were hot as lawyers argued about the arithmetical impact of a decision to admit a child from England in breach of the school's criteria. The girl involved was given a place after a fresh appeal hearing.