High Court judge rejects challenge over school exclusion

A High Court judge has rejected a judicial review challenge over a school pupil’s permanent exclusion for sending obscene images to another, younger student.

Neither the pupil nor the school were named in the judgment by Mrs Justice Lang.

In A Parent, R (On the Application Of) v Borough of XYZ [2022] EWHC 1146 (Admin) the pupil, through a parent, argued that the school Governing Body’s decision to exclude him, was vitiated by actual or apparent bias and that it erred in law by conducting a review of its earlier decision, instead of considering the matter afresh as advised in the Department for Education's Schools Exclusion Guidance.

Other grounds argued were that in the light of findings by an independent review panel the decision to exclude could not be lawfully or rationally maintained by the Governing Body and that it unfairly pre-determined its decision.

The case arose when the pupil, then aged 16, and other pupils were the subject of allegations by a 12-year-old female pupil of serious sexual misconduct towards her.

These were referred to the police and to local authority children’s services in both the borough where the pupil lived and the borough where ethos school is located.

Since the pupil was now under police investigation for oral rape of a minor the headteacher and Governing Body were advised not to undertake their own investigation to avoid any interference with the police investigation.

The complainant and the pupil were initially kept apart at school, with the pupil required to study in the internal exclusion room and chaperoned when moving around the school building.

Police arrested the pupil at the school in September 2019. Initially he was released on bail, subject to conditions and was required by the school to remain at home. When the pupil was arrested, police officers found indecent images of sexual acts involving a minor on his mobile phone.

The decision to exclude the pupil was taken by the headteacher, who issued a letter that stated: “Following information received from [XYZ Borough's] principal officer safeguarding in education and the police, [a pupil] has been excluded for sending obscene pictures of a sexual act involving a minor, to another student who is the alleged victim of such an act. His involvement in this act is being investigated by the police.

“This is a serious breach of the school's behaviour policy. Additionally, I am of the view that allowing [a pupil] to remain in the school would seriously harm the education or welfare of others in the school.”

A panel of the Governing Body considered the headteacher's decision at two meetings and upheld the exclusion.

The pupil asked for the decision to be examined by the IRP, which recommended that the Governing Body should reconsider the exclusion because the letter of permanent exclusion said that to allow [a pupil] to remain at school would seriously harm the education or welfare of others in the school.

It said: “The panel were of the view that, whilst recognising the difficulties faced by the school to engage both [councils] in order to undertake a written risk assessment, the Governing Body should have given further consideration to the fact that no risk assessment was undertaken, and that this fact impacted on the ability of the Governing Body to satisfy the requirement in relation to the aspect of potential harm of the education or welfare of other pupils.” The Governing Body upheld its original decision.

The pupil argued that in the light of the IRP decision’s the Governing Body panel could not properly uphold the exclusion and its reasoning and conclusion was irrational.

Lang J said: “I consider that the panel was rationally entitled to conclude that the absence of a formal risk assessment did not render the exclusion unlawful.

“The Keep Children Safe Guidance advised that, in cases of sexual violence, there should be an immediate risk assessment, and in cases of sexual harassment, the need for a risk assessment should be considered on a case-by-case basis. It was lawful for a decision maker not to follow guidance if there was a good reason for not doing so.

“The headteacher had a good reason for not obtaining a further risk assessment from social care, as his efforts to obtain one from the two local authorities had been frustrated.”

Lang J also rejected an argument that the panel erred in law by not considering the matter afresh.

She said: “I do not accept the criticism that the panel undertook a point by point rebuttal instead of a genuine holistic reconsideration.

“On my reading of the decision, the panel conscientiously addressed each point in detail, analysing the evidence, and making its findings. That was the correct approach.

"Furthermore, it is also apparent from the decision that, on a number of occasions in its decision, the panel took a broader, overall view of the issues, which was appropriate.”

She also dismissed the allegation of bias by the Governing Body panel, and that it had pre-determined its decision.

Lang J said: "On a fair reading of the decision and minutes, it is apparent that the panel took a careful and conscientious approach, analysing the evidence taking into account the evidence and submissions made by the claimant and a pupil.”