C: Matt Moloney under CC license https://creativecommons.org/publicdomain/zero/1.0/

Law firm launches legal challenge over masking of children in Northern Ireland’s schools

A law firm based in Magherafelt, Co. Derry, has launched a legal challenge against Northern Ireland’s children’s commissioner over the masking of children in schools. 

In a statement, John J. McNally and Co Solicitors said: “We have received instructions from the parent of a secondary school child who wishes to challenge the lawfulness of the failure of the Children’s Commissioner, Koulla Yiasouma, to intervene and advocate for the removal of the masking of children in post primary schools.

“Accordingly, we have issued pre-action correspondence highlighting the discrimination suffered by children in this jurisdiction, when considered against children in England, and further highlighting the absurdity and irrationality of adults in tightly confined social settings being free from any such requirement whilst children here find themselves masked between 7 and 9 hours per day, depending upon the distance they live from school and time spent on school transport.”

In a letter addressed to Ms Yiasouma, the law firm says the issue is that post primary school children in the North are being required to wear masks “in school settings, in circumstances where schoolchildren in England are not under any such requirement; in circumstances where adults in this jurisdiction are under no such obligation when socialising in tightly confined indoor public arenas and in circumstances where there now exists a clear body of evidence that the wearing of face masks is causing incremental psychological and physical harm to children and their development.”

The applicant, Stephen Atherton LLB, LLM of John J. McNally and Co. Solicitors, challenges the lawfulness of the failure of the Northern Ireland Commissioner for Children and Young People to “intervene, exercise her statutory duty to protect children and call upon the Department of Education and Department of Health to immediately remove the requirement for post primary pupils to wear face masks within school settings.”

On the 13th August 2021, John J. McNally and Co. wrote to Yiasouma, outlining their concerns that schoolchildren in Northern Ireland would be required to be masked, a position contrary to that in England. In response, the Children’s Commissioner told the solicitors that she was not consulted on the issue by the Department of Health, and that she ‘did not support the measure’ but understood it. Further, the legal document asserts that Ms Yiasouma would continue to monitor the review process.

The legal document further notes that, on the 18th of August, the Department of Education published guidance which strongly recommended that post-primary pupils wear a face covering at all times when inside school buildings, including classrooms, corridors, and confined communal spaces such as toilet areas. JJ McNally and Co. argue that “this has been stringently enforced within the school of the applicant’s child, with children berated on occasions for failing to conform.” They also venture, “These measures were implemented and enforced at a time where schoolchildren in England were not subject to any such requirement.”

In its legal correspondence to the Commissioner, John J. McNally and Co states that, on the 18th of January 2022, the Children’s Commissioner, following representations made to her office by a parental pressure group called ‘Us for them NI’, indicated: “My position is that mask wearing within schools must end as soon as possible and I shall continue to engage with the Department and Minister to ensure that this happens.” 

KIDS’ MENTAL HEALTH IMPACT 

The legal document also references comments made by the Commissioner on the mental health ‘epidemic’ affecting children. Addressing the Commissioner, it states: “On the 7 February you published a report highlighting a mental health epidemic affecting children and noted that referrals to CAMHS from accident and emergency departments had increased by 24% during the pandemic.

“You further acknowledged that: ‘The evidence is now clear that children and young people have been disproportionately impacted’”.

JJ McNally and Co argues that, “Tangible and compelling evidence of such discrimination can be found in the fact that adults can socialise in closely confined indoor spaces such as bars and nightclubs unmasked whilst children remain masked in school settings for up to 8 hours per day.”

On the 7th February, NI Health Minister Robin Swann indicated that he was seeking legal advice in relation to the easing of coronavirus restrictions and regulations in the absence of the NI Executive, due to the improving public health environment. JJ Mc Nally and Co. point out that they are not aware, as of the 8th February 2022, that any action has been taken, nor that any direct representations have been made to any Minister demanding that the immediate removal of facemasks within post primary settings should form a key part of the anticipated easing of regulations and restrictions in the North. 

The solicitors say that the legal challenge is being taken to discharge the statutory duty of the Children’s Commissioner to protect and advance the rights of children. It notes the NI Department of Education as an interested party in the legal action.

Providing evidence to back up its legal challenge, the law firm cites an article that analyses ‘more than 150 comparative studies and articles on mask ineffectiveness and harms’. It also provides a research letter on the ‘experimental assessment of carbon dioxide content in inhaled air with or without face masks in healthy children’.

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