Emma Sutton KC

Call 2006 | Silk 2023

Emma Sutton KC | Call 2006 | Silk 2023

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Emma is experienced in education law in both England and Wales. Her education law practice is complemented by her public law practice. Emma advises and represents Local Authorities, Governors, Headteachers, Charities, and parents in special educational needs disputes, discrimination claims (on the grounds of disability, race, and religious belief), school admission appeals (including legally advising the panel), and school exclusions.

‘A tough negotiator, who is excellent with lay clients with an impeccable court manner’
The Legal 500

Emma was instructed by the Welsh Government as junior counsel to defend a claim for judicial review brought by parents who objected on religious and/or philosophical grounds to their children being taught “Relationships and Sexuality Education”. A summary of this important judgment can be found here.


Emma deals with the full range of issues that arise in the context of maintained schools and academies, including admissions, exclusions, special educational needs and disability discrimination, and school transport. She is also experienced in claims arising in the independent school sector and further and higher education sector.

Emma appears in appeals to the tribunal system in England and Wales and advises and represents parties in judicial review claims concerning special educational needs in the Administrative Court.

Emma is instructed by the Welsh Government on a number of education law matters, including the extent of the duties of the Welsh Ministers and advises private and public bodies on the safeguarding of children within the education system. With regards to safeguarding, Emma provides advice and training to public bodies in relation to their duties.


Re S [2023]
Instructed by a Local Authority to defend a claim before the Education Tribunal for Wales, brought by the mother of a 3-year-old child, pursuant to the Equality Act 2020, regarding the alleged discrimination of “failing to school” the child. The claim was complicated as care and placement orders had been made in respect of the child and restrictions on the claimant’s PR had been made by the adoption agency per section 25(4) of the Adoption and Children Act 2022. The Tribunal accepted the submission of the defendant that the claim could not be brought against the Local Authority having regard to the meaning of “Responsible Body” in section 85(9)(a) EA 2020, and as the issues related to wider concerns regarding (inter alia) the operation of the defendant’s social services department which the tribunal had no jurisdiction to determine.

R (on the application of Isherwood et al) v The Welsh Ministers [2022] EWHC 3331 (Admin), Steyn J (final hearing), Tipples J (interim hearing)
Instructed by the Welsh Government as junior counsel to defend a claim for judicial review brought by five parents who objected on religious and/or philosophical grounds to their children being taught “Relationships and Sexuality Education” which was a mandatory element of the new Curriculum and Assessment (Wales) Act 2021. The claimants challenged the lawfulness of “The Curriculum for Wales – Relationships and Sexuality Education Code” and “The Relationships and Sexuality Education: Statutory Guidance”. All grounds were dismissed following a two day contested hearing. In particular, the court found that no fundamental parental right of excusal existed at common law, and in relation to the second sentence of Article 2 of Protocol 1 ECHR, that both of the challenged documents complied with the pluralism requirement. Emma successfully represented the Welsh Government at the interim hearing and was led by Jonathan Moffett KC of 11KBW at the final hearing. Please see here for the judgment.

2019 onwards: instructed by the Welsh Government to advise upon:

  • Religious education in schools
  • Collective worship in schools
  • Education grants
  • Deprivation of liberty issues in specialist educational placements
  • SEN specialist assessment processes (including how a pupil’s capacity impacts on such processes)
  • Participation and representation of children, young persons and parents who lack capacity within the tribunal system
  • Development of the ‘Education and Skills’ section for the Law Wales website

In the matter of Re S: Mr and Mrs G v London Borough of Hackney (ACC) (UT) [2018]
Instructed on behalf of the respondent in an appeal to the UT regarding a decision of the FTT that child S did not require an EHC assessment to be undertaken in accordance with section 36 of the Children and Families Act 2014. The five grounds of appeal were defended which included (i) misapplying the statutory test, (ii) failing to consider the funding position, and (ii) failing to consider the evidence of the OT. As child S had been diagnosed with ASD following the FTT decision (some months ago), it was accepted that an assessment should now be undertaken.

Re X Charitable Institution v A Local Authority & A Board of Governors [2018]
Instructed by a charity to advise upon the implications of the religious constitution of a school, school closure, the disposal of land on which the school was situated, and the rights of third parties having regard to historic trust deeds.

Re M [2017]
Instructed by the Director of Social Services within a Local Authority to prepare an independent report regarding the safeguarding practices and procedures in place for children following the conviction of a former employee of child sexual abuse.

Re X School Reorganisation [2016]
Instructed by a Local Authority to advise on the process of amalgamating a foundation school and a community school into a community school in Wales and how issues regarding the charitable status of the foundation school should be addressed.

Re X PRU [2016]
Successfully defended a Pupil Referral Unit in a complex Equality Act 2010 claim where it was alleged that the school had discriminated against a pupil by excluding them from the school on multiple occasions (section 85(2)(e)), by not providing them with education (section 85(5)(c)), and by failing to make reasonable adjustments (section 85(6)). The FTT rejected the claim on all grounds.

Re X Farm Park [2016]
Instructed by a private commercial company to advise upon the appropriate entrance policy for persons caring for a child with a disability.

Re H [2016]
Instructed by the parents of a child in a claim against a school regarding misuse of private information (causing damage and distress to the child), breach of confidence, breach of its statutory duties under the Data Protection Act 1998 and a breach of section 6 HRA 1998 (its actions constituting an unjustified and disproportionate interference in the child’s right to privacy pursuant to Article 8 ECHR).


Emma is recommended as a leading practitioner in The Legal 500 for education law, most recently quoted as being ‘a go-to lawyer for thorny issues.’