Flagship government policies to reduce class sizes in Scottish schools have been thrown into further confusion after a landmark legal ruling.

Flagship government policies to reduce class sizes in Scottish schools have been thrown into further confusion after a landmark legal ruling.

A family has won the right to send their four-year-old twins to the primary school of their choice, despite being told by East Lothian Council that the class was already full under government targets.

Following an appeal hearing at Haddington Sheriff Court, Sheriff Alan Miller ruled that, under current regulations, class sizes larger than the government's maximum of 25 were permissible.

One interpretation of the case, and a recent similar case in West Lothian, is that any parent could get their child into any primary school as long as the maximum class size did not exceed the statutory maximum of 30.

That would make a mockery of the lower class size targets set by both the last Labour-run Executive and the current SNP Government. However, the outcome is still unclear because East Lothian Council has decided to take the case to an appeal at the Court of Session in Edinburgh in September.

Yesterday, Eric Scott, the family's lawyer, said that, having won the case, they had been devastated to receive a phone call from East Lothian Council officials on Sunday evening informing them not to come to school the following day because of the appeal.

"They are very distressed that this has not been resolved before their children were due to start school and we hope that something can be arranged for them at short notice rather than waiting until next month for a decision," he said.

Councils have been reducing pupil numbers in primary classes as a result of policy initiatives from successive Scottish governments, aimed at driving up standards. The former Labour-run Scottish Executive set a target of 25 for P1, while, under the concordat with local authorities, the new SNP Scottish Government has moved further, calling for class sizes of 18 in the first three years of primary.

However, neither government legislated to enforce the new targets, with the executive choosing to issue a letter of guidance and the SNP relying on the so-called concordat agreement with local authorities. In fact, the only primary class size underpinned by the law is 30 - contained in regulations passed in 1999.

In the case, heard at Haddington Sheriff Court, Mr Scott, a solicitor with the Edinburgh-based law firm Campbell Smith, argued that the twins, from Musselburgh, should be allowed to go to the primary school because the "undisputed legal maximum" was 30.

East Lothian Council contested the request claiming that, if it was to maintain class sizes of 25 or less required by the government guidance, it would have to employ an additional teacher.

The sheriff stopped short of making a definitive judgment over whether the Scottish Executive guidance issued in 2007 took precedence over the regulations, passed in 1999.

However, he decided the twins - referred to as A and J in the court papers - should be allowed to go to the primary of their choice because placing decisions decided on appeal which result in additional pupils joining a school are treated as "excepted pupils" and are not counted towards class size maximums.

"There is no doubt placing A and J in the P1 class would bring the total number of children in the class to 26," the sheriff said in his ruling.

"Equally, however, the plain implication of ... excepted pupils ... is that these would not count towards class size limits. Whatever the defenders East Lothian Council might consider ideal or desirable .... it is thus clear that the defenders would not require to employ an additional teacher." Iain Nisbet, a solicitor with the education law unit of the Glasgow-based Govan Law Centre, who has been involved in similar cases, said a definitive judgment in the near future was vital.

"Cases on placing requests which have been refused on the grounds of capacity very rarely end up in the courts so this decision will be a critical one in terms of our understanding of what the effect of the regulations and guidance actually is," he said.

A spokesman for the Scottish Government said: "It would not be appropriate for ministers to comment on an ongoing case." East Lothian Council was unavailable for comment when contacted by The Herald last night.