Excluding the parents

November 21, 2009

Schools can take action to remove disruptive parents and other unwanted trespassers from their premises, writes Holly Stout.

It is a sad fact that teachers have to deal not only with unruly pupils, but also with uncooperative parents.

There is one respect at least in which the law may be some assistance, however. Intolerable parents do not have to be tolerated on school premises.

Schools are not public places to which any member of the public is entitled to have access. Any person who enters without permission is a trespasser. Trespassers may, therefore, be asked to leave. Trespass is not a criminal offence, but a matter which may be pursued through a civil action by the school, including by way of a claim for an injunction to prevent the person entering the premises.

A school may exclude any trespasser in the exercise of common law powers as the lawful occupier or owner of premises. How this can be done depends on (i) whether the person is someone who might be said, in the absence of an express notice to the contrary, to have an implied licence to enter the premises; and (ii) whether the proposed exclusion has a ‘public law element’.

Revoking the implied licence to enter

Which people have an implied licence to enter the premises depends on how the school controls entry to its premises. If the school has no security, or no notices up saying what persons are permitted to enter the premises, then anyone will have an implied licence to enter. In the case of tradespersons, etc, that licence may be revoked on notice (verbal or written) and there will be no ‘public law element’ to that decision.

In the case of a parent, however, the revocation by the school of the parent’s implied right to enter the school will have a ‘public law element’ and accordingly may be challenged if it is Wednesbury unreasonable. In most schools parents will have an implied licence to enter the premises.

The parent must also be given an opportunity to make representations in advance of a final decision being taken on exclusion. This can be done by the school writing to the parent giving the reason for the proposed exclusion and allowing the parent a short time to provide a written response: see Wandsworth Borough Council v Parent A [2000] 1 WLR 1246, CA.

The Court of Appeal indicated in that case that if the matter was urgent a school could temporarily exclude a parent pending given him an opportunity to make written representations. It made clear that a school enjoys a wide margin of discretion in determining what conduct warrants exclusion in this way.

The Court of Appeal also held that if the school’s decision to revoke the parent’s implied licence was unlawful in public law terms, that could be invoked by the parent as a defence in the event that the school (or LEA, as appropriate) brought proceedings for a (private law) injunction against the parent.

Trespassers and the Education Act 1996

It is important to appreciate that trespass is a civil matter and not a criminal matter. However, there are circumstances where a trespasser on school premises may commit a criminal offence under section 547 of the Education Act 1996 (“EA 1996”). That section provides:

547.— Nuisance or disturbance on school premises.

(1) Any person who without lawful authority is present on premises to which this section applies and causes or permits nuisance or disturbance to the annoyance of persons who lawfully use those premises (whether or not any
such persons are present at the time) is guilty of an offence and liable on summary conviction to a fine not exceeding level 2 on the standard scale.

(2) This section applies to premises, including playgrounds, playing fields and other premises for outdoor recreation, of—

(a) any school maintained by a local education authority,

(aa) any special school not so maintained, and

(ab) any independent school.

(2A) This section also applies to any premises which are—

(a) provided by a local education authority under section 507A or 507B (if the authority are in England) or section 508 (if the authority are in Wales), and

(b) used wholly or mainly in connection with the provision of instruction or leadership in sporting, recreational or outdoor activities.

(3) If—

(a) a police constable, or

(b) (subject to subsection (5)) a person [anybody] whom the appropriate authority [the LEA or Governing Body depending on the school’s status]) has authorised to exercise the power conferred by this subsection, has reasonable cause to suspect that any person is committing or has committed an offence under this section, he may remove him from the premises in question.

…(6) No proceedings for an offence under this section shall be brought by any person other than—

(a) a police constable, or
(b) an authorised person.

The Court of Appeal in the Wandsworth case stressed that the power of an authorised person to remove a person from school premises under s 547(3) of the EA 1996 must not be confused with the school’s common law right to require trespassers to leave. While the former power can only be exercised where the trespasser is causing a nuisance or disturbance, the latter power is not so limited.

Although a parent would not normally be banned unless he had caused a nuisance or disturbance, the common law power of banning does not require the nuisance or disturbance to be ongoing: it may be exercised to ban persons from entering the school in future on the basis of past conduct.

Holly Stout is a barrister at 11 King’s Bench Walk.