Exclusions: A High Court Review

The High Court has recently rejected a parent’s application for a judicial review over a school’s decision to permanently exclude her son (‘Pupil A’) due to a serious safeguarding breach. Joe Orme and India Hall look at A Parent -v- Governing Body of XYZ School and the ramifications for schools and academy trusts.

Background

The application for judicial review stemmed from the Governing Body’s review of a permanent exclusion of Pupil A made in December 2019. In June 2019 Pupil A had been subject to allegations of sexual misconduct by a younger female pupil at the same school. The school referred these allegations to the police and the local authority social care services at each borough the two pupils resided in. In December 2019 the school received confirmation from the police that Pupil A was still under investigation for oral rape of a minor. The headteacher took the decision to permanently exclude Pupil A with immediate effect as his behaviour was a serious breach of the school’s behaviour policy. 

This decision was communicated to Pupil A’s parents and the Governing Body. In February 2020 the Governing Body considered the headteacher’s decision to permanently exclude. Representations were made to the panel by the headteacher, who highlighted the serious breach of the behaviour policy and the risk to the welfare and education of other students if Pupil A was to remain at the school. Pupil A’s mother (accompanied by a legal adviser) made representations about Pupil A’s previously good academic and behaviour record. The Governing Body upheld the permanent exclusion as Pupil A’s behaviour was a serious breach of the school’s behaviour policy. The panel determined that, on the balance of probabilities, if Pupil A were to remain at the school this would be detrimental to the education and welfare of others at the school (including his accuser). 

Pupil A’s mother made an application to an Independent Review Panel (‘IRP’) for a review of the decision. The IRP was delayed as Pupil A’s mother wished to hold the IRP in person rather than online. Eventually an online IRP was held in March 2021. In this time the police decided to take no further action against Pupil A. The IRP recommended that the Governing Body reconsider its decision to permanently exclude Pupil A as they believed that the school should have undertaken risk assessments in line with Keeping Children Safe in Education. The IRP believed that this would have allowed the Governing Body to satisfactorily determine whether allowing Pupil A to remain at the school would harm the education or welfare of other pupils. However, of note is the fact that the IRP did not exercise its full powers to quash the Governing Body’s decision. 

In light of the IRP’s recommendation, in March-April 2021,  a panel of the Governing Body reconsidered the decision to permanently exclude Pupil A. The panel noted that statutory guidance would require the pupil to be reinstated if the exclusion were overturned, however, Pupil A was 17 and no longer eligible to be a pupil at the school. The panel reviewed the evidence provided by the school at the first hearing; the panel had invited Pupil A to make a written statement, but his solicitors declined on his behalf. They concluded that sending an obscene picture of a sexual act to the alleged victim of the act would constitute a serious breach of the behaviour policy.  They also noted that the police took the decision to take no further action 12 months after the panel’s determination to uphold the exclusion – they noted that it would not have been reasonable to take this into consideration when reviewing the original decision.

Judicial Review

The application for judicial review was not made on the headteacher’s decision but rather the Governing Body’s reconsideration of the decision after the recommendation by the IRP.

Pupil A’s mother made the application on several grounds. She alleged that the Governing Body was biased and had erred in law by not conducting the review with fresh material (as recommended by the DfE’s school exclusion guidance). Mrs Justice Lang found that there was no bias on the part of the Governing Body because, as volunteers, they had no personal connection to Pupil A and the outcome of the review. Mrs Justice Lang also did not find that the panel had erred in law by not considering the matter afresh. She noted that the panel conscientiously addressed each point in detail, which was the correct approach, and took an appropriate overall view of the issues. 

Wider Implications

The judgment serves as useful guidance for those in maintained schools and academies potentially facing challenges to the decision to permanently exclude. The decision sheds light on the relationship between statutory guidance and permanent exclusions. The key take away is that the High Court took the view that the guidance was of import but did not bind the hands of those undertaking a review of the decision to permanently exclude. Of course there needed to be good reason to depart from it. There can be times when a risk assessment is necessary to ensure safeguarding separation. This could even be used to allow for the headteacher to exercise powers to put in place mandatory off-site schooling whilst a safeguarding issue was examined before a final decision was made, as was the case in R. (on the application of CHD) -v- Newick CE Primary School. However, as seen with this case, sometimes the lack of information from outside agencies makes a proper assessment impossible. Such serious allegations will be for the police, first and foremost, to investigate and one must be careful not to prejudice that investigation. There are clearly times when a school can depart from statutory guidance when it is reasonable to do so given the circumstances. Nevertheless, departure from statutory guidance should be seen as the exception rather than the rule.

Another important point raised is allegations of bias. Faced with the prospect of a child being removed from a school of choice, the submissions can be broad in the hope something will convince the panel that the exclusion was erroneous. School leaders and those in governance may be familiar of accusations of bias when they make decisions unpopular with parents. The judgment reinforces that there is a higher threshold that has to be met to prove an allegation of bias. Furthermore, the judgment also highlights the voluntary nature of Governing Bodies. 

Whilst it is unusual for the review of a Governing Body or IRP to be subject to judicial review, those involved in the permanent exclusion process should be aware of their duties and responsibilities and to have received training to allow those duties to be exercised properly. We are experienced in supporting and training both maintained schools and academy trusts in disciplinary, safeguarding and exclusion matters. If you require any further support on these issues, please do not hesitate to get in contact with us.