| SPOTLIGHT |
The High Court has rejected a legal challenge brought by parents over a decision of the Governors Disciplinary Committee (GDC) of a school to uphold the decision of the headteacher to permanently exclude their child.
In LM & Anor, R (On the Application Of) v An Academy Trust [2024] EWHC 2267, Jason Coppel KC, sitting as a Deputy High Court judge, said: “True it is that the Independent Review Panel (IRP) made extensive and serious criticisms of the decision of the GDC.
“But I have found no legal flaw in the reconsideration of that decision by the RGDC (a reconstituted disciplinary committee of the Governing Body). It was in principle open to the RGDC to effect a conscientious reconsideration of the Headteacher's decision and in my judgment it did so, and so remedied any shortcomings in the consideration originally given by the GDC.”
Outlining the background to the case, the judge noted that the Governors Disciplinary Committee had been reconstituted in order to reconsider the Headteacher's decision to exclude the pupil, TM, after an initial decision of the Committee dated 25 November 2022 had been quashed on review by an Independent Review Panel (IRP).
As set out in a letter in November 2022, the Headteacher had concluded that TM had committed "acts of sexual violence and harassment towards other students on and off the school premises".
In the Headteacher's view, these were "significant and persistent breaches of the school's rules" which required TM's exclusion, and his return to school would put other students at risk.
A managed move to another school had been considered but had been ruled out.
A disciplinary committee of the GDC considered TM's exclusion at a meeting later that month, in which it upheld TM's exclusion.
The committee decided that the decision to exclude TM was lawful. The judge said: “In its view, there had been "persistent breaches and a serious breach of the school's behaviour policy regarding sexual abuse, harassment, or assault".”
Further, having reviewed witness statements and CCTV evidence, the panel were “convinced on the balance of probabilities, that the behaviour attributed to [TM] by his peers occurred".
The GDC rejected a complaint by the claimants that the Headteacher had not compiled a formal risk assessment, on the basis that the Headteacher's approach had been one of “continuous risk assessment”, and action in response to that assessment, whilst investigating allegations against TM, the judge noted.
The claimants sought a review of the GDC's decision by an Independent Review Panel (IRP).
By majority decision, the IRP quashed the GDC's decision that TM should be permanently excluded and directed that the Governing Body reconsider TM's reinstatement.
The criticisms of the GDC which were made by the IRP fell into two categories: failures to consider relevant matters and procedural failings.
A reconstituted disciplinary committee of the Governing Body (the RGDC), consisting of three different governors, met to reconsider TM's exclusion in June 2023.
The RGDC considered that the Headteacher had been entitled to find on the balance of probabilities that TM had engaged in unwanted touching of male and female pupils.
The judge said: “The RGDC considered the criticisms of the IRP and of the Claimants as to the gathering of evidence by the Headteacher. It acknowledged that "in some areas the collection of evidence could have been better" but it "did not feel that these issues detracted from the evidence to the extent that it was unreasonable to rely upon it".”
Following this decision, TM’s parents sought a quashing order in respect of the RGDC's decision and mandatory orders, including an order to readmit TM to the school.
The claimants submitted the following grounds:
On ground 1, the claimants' allegation of illegality by the RGDC due to lack of clarity in its findings of fact was founded on a dictum of the Court of Appeal in Re K (Children) [2022] EWCA Civ 468 [2022] 1 WLR 3713, §85:
"There is, in our view, a real danger in reducing bespoke, detailed and subtle findings made by a judge to one or two word headline labels, in place of the original detail. The case analysis uses the labels of rape, bullying, manipulation and physical abuse, each of which emits a neon light in an erroneous and unjustified manner."
On this, the judge said: “The Claimants allege that the RGDC failed to particularise its findings of fact, falling foul of the danger articulated in Re K. However, the dictum in Re K is a flimsy basis for a public law challenge.”
He added: “The Court of Appeal was, in §85, criticising a case analysis which had been compiled by CAFCASS and which included a summary of the findings of fact made in the first instance family law judgment which was under appeal.
“[..] CAFCASS was not a decision-maker, and the Court of Appeal was not analysing any decision made by it, or the reasoning underpinning such a decision. The Court's dictum was no doubt intended to stand as guidance for the compilation of other similar reports in the future, but it was plainly not intended to be applicable in the very different context of public law decision-making and cannot easily be read across to that context, where there are already well-established standards of adequacy of reasons and rationality.”
The claimants submitted that the RGDC acted irrationally "by not inviting TM's view or engaging seriously with the lack of an account from TM".
Considering this, the judge said: “I do not accept that there was any failure to invite TM's views on these or indeed other allegations against him. […] The Claimants were present and legally represented at the GDC and IRP hearings.
“Whilst TM's own contribution to these hearings was limited (he answered a number of questions at the IRP hearing), that was down to the Claimants' choice to take up the great majority of their time with other forms of evidence or submission, including lengthy cross-examination of the Headteacher at the GDC hearing. The Claimants also had the opportunity to make written submissions, to the GDC, the IRP and the RGDC.”
On ground 2, the claimants submitted that that the RGDC acted irrationally and “contrary to statutory guidance” by not itself obtaining a risk assessment before proceeding to uphold the Headteacher's decision to exclude TM.
The judge noted that the requirement for a risk assessment in a case of alleged sexual violence is set out in the KCSIE Guidance and is “not a pre-condition for exclusion under the Exclusions Guidance”.
He added: “Second, it is alleged that the RGDC lacked the specialist evidence which it needed to allow it to consider the risk which TM posed to other pupils at the School. That is not correct: the RGDC had the specialist evidence of the Headteacher as to the risk posed by TM.
“The Claimants disagree with the Headteacher's assessment, but the RGDC considered it and in my judgment was entitled to rely upon it in circumstances where it had accepted the significant majority of the Headteacher's factual findings, including the most serious of them.”
Thirdly, it was alleged that the RGDC did not properly consider whether TM could safely be educated at an alternative school.
However, the judge noted: “The Headteacher had sought to agree a managed move to another school in the same locality but none of the schools which he approached would agree to accept TM. When the Claimants found another school for TM, the Headteacher cooperated with the admissions process at that school and TM was admitted, and continues to be educated, there.”
Turning to ground 3, the judge noted that the RGDC was not required to accept all of the findings of the IRP, but only to give “conscientious reconsideration” to whether TM should be reinstated in the light of those findings.
He said: “In my judgment, it fulfilled that obligation in its approach to the witness statements relied upon by the School.”
The judge added: “It was at one stage floated by [counsel for claimants], that the RGDC was required to accept and give full effect to the findings of the IRP, save unless the School had successfully brought judicial review proceedings to challenge the IRP's decision.
“No authority was cited for that proposition, and I reject it as inconsistent with the well-established approach that a Governing Body give conscientious consideration to the findings of an IRP. A Governing Body must of course embark upon a reconsideration if that is what is directed by an IRP, save unless it successfully judicially reviews that direction. But having embarked upon a reconsideration, the standard is conscientious consideration which is not constrained by having to abide by every finding made by an IRP which has not been subject to judicial review challenge.”
Turning to the fourth ground, the judge concluded that it was “far from irrational” for the RGDC to accept the Headteacher's account of events, notwithstanding the absence of supporting documentary evidence.
He said: “In my judgment, the RGDC was not required to reject the Headteacher's account as untrue (or unproven) in the absence of such evidence, in particular when it had found the Headteacher's findings to be essentially credible and reliable and regarded his account of the managed move enquiries, and the reported reaction of the other schools, as inherently plausible.”
On ground five, that the RGDC acted “procedurally improperly” by not allowing the claimants (nor TM) to make oral representations before the RGDC, the judge noted that the claimants failed to identify any particular issue on which TM was required to be heard, due to not having had an opportunity to speak on the issue previously.
Dismissing the claimants' submissions on ground 5, he said: “Absent an important issue on which TM had not been enabled to be heard, it is difficult to see how an error made by the RGDC in its reasoning could serve to establish, ex post facto, that fairness required that TM be given the opportunity to make oral representations. The requirements of procedural fairness should be apparent before the decision in question is taken.”
Finally, on ground 6, the judge concluded that after rejecting each of the foregoing grounds of claim, he must also reject the overall claim of irrationality.
Concluding the case, Mr Coppel said: “I accept the submission of the school that this overall claim adds nothing in circumstances where Grounds 1 to 5 have failed. True it is that the IRP made extensive and serious criticisms of the decision of the GDC. But I have found no legal flaw in the reconsideration of that decision by the RGDC.
“It was in principle open to the RGDC to effect a conscientious reconsideration of the Headteacher's decision and in my judgment it did so, and so remedied any shortcomings in the consideration originally given by the GDC. I cannot agree that no reasonable RGDC would have reached the decision to uphold TM's exclusion.”
The parent’s claim was dismissed.
Lottie Winson
