A (A Minor) v Minister for Education (Leave to appeal)

• Jurisdiction: Bermuda
• Judge: Clarke P,Smellie JA,Kawaley CJ
• Judgment Date: 27 June 2024
• Docket Number: Civil Appeal 2022 No 9
• Court: Court of Appeal (Bermuda)

Between:

A (a minor)

Appellant

and

Minister for Education

Respondent

2024 Bda L.R. 40

Before: Clarke P; Smellie JA; Kawaley CJ

Civil Appeal 2022 No 9

In The Court of Appeal for Bermuda

Leave to appeal to the Privy Council — Covid testing regime in schools

The following cases were referred to in the judgment:

Alleyne-Forte v AG of Trinidad and Tobago[1998] 1 WLR 68

Ellis v Barker(1871) 40 LJ Ch 603

Hutcheson v Popdog Ltd (New Group Newspaper Ltd, 3rd party)[2012] 1 WLR 782

Mr M Diel for the Appellant

Mrs S Dill-Francois for the Respondent

RULING ofClarke P

1. We have before us an application for leave to appeal to the Privy Council from our decision of 17 February 2023. Section 2 (b) of the Appeals Act 1911 provides that an appeal from this Court to His Majesty in Council lies as of right from the final determination of any application or question by the Supreme Court under section 15 of the Constitution. It is common ground that this section prima facie applies because the determination of the Supreme Court addressed what was said to be a breach of the child applicant's right under section 7 (1) of the Constitution not to be subject to a search of her person except with her consent.

2. Although such an appeal is as of right the Privy Council has held, in Alleyne-Forte v AG of Trinidad and Tobago[1998] 1 WLR 68, that what is still required, in order to be able to bring such an appeal, is that there should be a “genuinely disputable issue”.

3. That case has been followed in subsequent cases of the Privy Council: see A v R (Guernsey)[2018] UKPC 4; and applied by us in this jurisdiction in Pedro v The Attorney General[2021] CA (Bda) Civ 14.

4. The facts and content of this case, as considered by the Supreme Court and this Court, will be well known to the parties and to anyone who has to consider this ruling. I will not therefore set them out in any detail. In essence the case concerns the Covid testing regime which, in relation to public schools, required a child to take a form of self-administered but supervised saliva test if he or she was to be admitted to school on the reopening of those schools in October 2021. A positive finding would mean that the child in question would have to have remote schooling.

5. In the course of his judgment in this Court Maurice Jay J.A. addressed the significance of section 7 of the Constitution in the following terms at paragraph 12:

“But in my judgment, the section [Section 42 of the Education Act 1996] does not really impact upon the present case. It requires parents to make a choice. It no doubt permits them to reverse their initial choice. However, in itself, it is not dispositive of the issue of consent. I conclude that even if it may attract...