Dale Virgo v Board of Management of Kensington Primary School

• Jurisdiction: Jamaica
• Court: Court of Appeal (Jamaica)
• Judge: Brooks P,Edwards JA,Brown-Beckford JA (AG)
• Judgment Date: 15 July 2024
• Neutral Citation: JM 2024 CA 091
• Docket Number: SUPREME COURT CIVIL APPEAL NO COA2020CV00069

In the matter of the Constitution of Jamaica

and

In the matter of an Application alleging breach of constitutional rights under sections 13(3)(c), 13(3)(g), 13(3)(h), 13(3)(i), 13(3)(j)(ii), 13(3)(k), 13(3)(r), 13(3)(s) and Section 17 of the Charter of Fundamental Rights and Freedoms

and

In the matter of an Application for constitutional redress pursuant to section 19(1) of the said Charter

Between

Dale Virgo

1 ^st Appellant

and

ZV (By her mother and next friend Sherine Virgo)

2 ^nd Appellant

and

Board of Management of Kensington Primary School

1 ^st Respondent

and

Minister of Education

2 ^nd Respondent

and

Attorney General of Jamaica

3 ^rd Respondent

and

Office of the Children's Advocate

Intervener

[2024] JMCA Civ 33

Before:

THE HON Mr Justice Brooks P

THE HON Miss Justice Edwards JA

THE HON Mrs Justice Brown-Beckford JA (AG)

SUPREME COURT CIVIL APPEAL NO COA2020CV00069

IN THE COURT OF APPEAL

Civil procedure — Court at first instance refusing leave to appeal to 1 ^st applicant and continuing case with 2 ^nd applicant — 1 ^st applicant not seeking leave to appeal from this court — Both applicants filing joint appeal — Whether 1 ^st applicant has an appeal before this court

Constitutional law — Fundamental rights and freedoms — Right to family life — Right to freedom of expression — Right to freedom of religion — Right to education to the primary level — Publicly funded school requiring student to remove dreadlocks to attend institution — Whether school's hair grooming policy breaches constitutional rights and freedoms

Constitutional law — School's policy on hair grooming in breach of student's fundamental rights and freedoms — Whether policy justified in a free and democratic society

B St Michael Hylton KC, Miss Daynia Allen and Isat Buchanan instructed by Isat Buchanan for the appellants

Ms Althea Jarrett KC and Miss Jevaughnia Clarke instructed by the Director of State Proceedings for the 1 ^st-3 ^rd respondents

Ms Kaye-Ann Parke instructed by the Office of the Children's Advocate for the Intervener

Table of Contents

Heading	Paragraphs
Introduction	[1]–[5]
The factual background	[6]–[14]
The ruling of the court below	[15]
Grounds of appeal	[16]–[18]
This court's approach to review	[19]
The court's approach to considering alleged breaches of constitutional rights	[20]–[35]
Issue a. Whether Mr Virgo had legal standing to bring the claim (grounds a. and d.)	[36]–[38]
Issue b. Whether the Full Court adopted the incorrect approach for considering alleged breaches of constitutional rights, and consequently, incorrectly framed the issues to the alleged breaches of ZV's constitutional rights (ground b.)	[39]–[43]
Issue c. Whether the policy breached ZV's constitutional rights (Grounds c., e. and f.) Freedom of expression Freedom of religion Right to publicly funded tuition in a public educational institution at the pre-primary and primary levels Right to equitable and humane treatment by any public authority Right to respect for and protection of private and family life and privacy of the home	[44]–[167] [45]–[82] [83]–[101] [102]–[124] [125]–[155] [156]–[167]
Whether the breaches were demonstrably justifiable	[168]–[182]
Summary and conclusion	[183]–[187]
Costs	[188] – [190]

Brooks P

Introduction

1 Mr Dale Virgo and his minor daughter, ZV (represented by her mother and next friend, Mrs Sherine Virgo), (together, for convenience only, ‘the appellants’), claim that their constitutional rights, as recognised in the Charter of Fundamental Rights and Freedoms contained in Chapter III of the Constitution (‘the Charter’), were breached. Those rights, they assert, include the right to freedom of religion and the freedom of expression. Their discontent was created when Kensington Primary School (‘the School’), a government-owned primary school, informed Mr and Mrs Virgo that ZV could not attend the School wearing her locked hairstyle. The Virgo family are not Rastafarian but wear their hair in what they describe as “dreadlocks”.

2 In response to the School's stance, the appellants brought a constitutional claim against the Board of Management of the School (‘the Board’), the Minister of Education (‘the Minister’) and the Attorney General of Jamaica (under the Crown Proceedings Act) (‘the 3 ^rd respondent’). These parties, where convenient, will be collectively referred to as ‘the respondents’. The appellants claimed redress under the Constitution of Jamaica for the alleged breaches.

3 The Office of the Children's Advocate (‘the OCA’) is mandated to protect children's rights. It intervened in the litigation to advocate for upholding ZV's rights.

4 The Full Court of the Supreme Court of Jamaica considered the appellants' claim. It found that Mr Virgo had no standing to institute the claim, since it found he was not affected by the School's stance, and held that ZV's constitutional rights had not been breached. In this appeal, the appellants and the OCA seek to overturn the Full Court's decisions.

5 An outline of the background is necessary to fully appreciate the issues involved.

The factual background

6 In or about April 2018, Mrs Virgo applied to enrol ZV in the School. The School accepted the application, and, on 1 May 2018, Mrs Virgo signed a contract issued by the School for ZV to be registered there as a student. The School hosted an orientation session on 9 July 2018 and Mrs Virgo and ZV attended. Both wore dreadlocks to the event. During the session, Mrs Virgo was given the School's handbook with its rules.

7 The principal, at the time, informed Mrs Virgo that the School had a policy (‘the policy’) against the wearing of dreadlocks. This policy stipulated that students attending the School were not permitted to wear braids or beads or lock their hair. The rationale behind the policy was that some parents do not properly groom their female children's hair. It is said that, in the past, the delinquency had caused an outbreak of lice and fungus infestation at the School. In addition, a student swallowed a bead. Consequently, the School's position was that for ZV to attend there, she would have to remove her dreadlocks. The policy was not included in the contract that Mrs Virgo, and other parents, were initially asked to sign in May 2018. When the matter became the subject of litigation, the School's acting principal, Ms Christine Hamilton, deposed that the omission was due to an administrative oversight.

8 The School later presented the appellants with an amended contract, which included the policy. Notwithstanding the policy, ZV was permitted to wear her dreadlocks to the School's mandatory summer school programme. Mrs Virgo was still, however, required to remove ZV's dreadlocks by 29 August 2018, otherwise, the child would be prohibited from attending the School when classes started the following month. At the time, Mrs Virgo, although finding the policy offensive, advised the School that the dreadlocks were just a hairstyle. She later informed Mr Virgo, who also wore dreadlocks, of these developments. He was incensed by the information.

9 The appellants' displeasure with the policy resulted in their filing a fixed date claim form on 18 July 2018, asserting that the respondents had breached their constitutional rights. The first hearing of the fixed date claim form was held on 3 August 2018 before Palmer-Hamilton J (Ag), as she then was. On that date, by the consent of the parties, Palmer-Hamilton J (Ag) issued an injunction prohibiting the Board and the Minister from barring ZV from attending the School until the determination of the substantive constitutional claim.

10 On 7 September 2018, the appellants amended their fixed date claim form and sought, among other things, orders and declarations that the policy was unconstitutional and that it breached various rights under the Constitution. In para. 1 of the amended fixed date claim form, the appellants claim:

“A declaration that the policy to exclude individuals who wear dreadlocks of school going age from being admitted to and/or attending primary and/or secondary schools in Jamaica on the basis of wearing their hair in dreadlocks is unconstitutional in that it breaches the following rights of the individual to which the following declarations are sought:

• a. The right to freedom of expression (section 13(3)(c))…;

• b. The right to equality before the law (section 13(3)(g))…;

• c. the right of every child (i) to such measures of protection as are required by virtue of the status of being a minor or as part of the family, society and the State; (ii) who is a citizen of Jamaica, to publicly funded tuition in a public educational institution at the pre-primary and primary levels (section 13(3)(k));…

• d. the right to equitable and humane treatment by any public authority in the exercise of any function [(]section 13(3)(h)[)];…

• e. …respect for and protection of private and family life, and privacy of the home [(section 13(3)(j)(ii))]; or

• f. A declaration that the decision of [the Board] to deny ZV full enrolment at [the School] until or unless her dreadlocks are cut breaches her right to due process as guaranteed at Section 16 of [the Charter];

• g. Any other right entrenched in the constitution.”

11 The appellants also sought declarations that:

• a. the policy has breached, is breaching, or is likely to breach the collective rights of the family, (which are the rights listed above in para. [10] a. to g.), as well as the right to freedom of religion (para. 2 of the amended fixed date claim form);

• b. a direction that the respondents eliminate all rules, practices or policies that prohibit ZV's attendance at the School because she wears dreadlocks (para. 3 of the amended fixed date claim form); and

• c. any policy or rule made by a public...