Court of Appeal to hold urgent hearing in case on permanent exclusion from school and relevance of vulnerability to child criminal exploitation

The Court of Appeal will this week (6 February) hear on an urgent basis an appeal against a High Court judge’s rejection of a judicial review claim over the decision by a school governing body's disciplinary panel not to reinstate a teenage boy to his school following a permanent exclusion.

The permanent exclusion of the 15-year-old boy occurred in January 2024 as a result of “persistent breaches” of the school's behaviour policy. The governing body's decision to uphold the principal's decision was quashed by an independent review panel. When the governing body retook the decision in June 2024, it again upheld the principal's decision.

The National Referral Mechanism made a positive reasonable grounds decision in August 2024, however, amid concerns that the boy was a potential victim of child criminal exploitation (CCE).

According to the boy’s legal team at Garden Court Chambers, the boy's situation has become much worse since losing the protective environment at school. “The appellant has been repeatedly injured. The police are gravely concerned for his wellbeing and are investigating him as a victim of modern slavery.”

Before the High Court it was submitted – among other grounds of challenge – that the school had a duty to protect the claimant under Article 4 ECHR as there were indicators of CCE. The boy’s counsel argued that the academy had a duty not to exclude him as this would further his exploitation.

In RWU, R (On the Application Of) v Governing Body of A Academy [2024] EWHC 2828 (Admin), handed down in November 2024, Fordham J rejected the claim brought on behalf of the pupil on all four grounds, finding that the governors were entitled to find that the school’s principal used his power to exclude him “fairly, reasonably and as a last resort” in order to maintain a “safe learning environment” for all pupils.

Mr Justice Fordham decided that CCE could be relevant to decisions on permanent exclusion, but it was not on the facts of this case.

The judge said: “Only by an impermissible exercise of hindsight – based on subsequent events – could it be concluded that an Article 4 positive protection duty arose [in January 2024 or June 2024].”

He concluded that there was no Article 4 trigger requiring appropriate measures to protect the claimant.

It was the first time that the High Court had considered the relevance of possible CCE and the Article 4 ‘protection duty’ to a permanent exclusion.

The appellant is represented by Nicola Braganza KC, Ollie Persey and Alex Temple of Garden Court Chambers. They are assisted by Maya Thomas Davis (first six pupil). They are instructed by law firm Bindmans.

Black Equity Organisation, which has been granted permission to intervene, is represented by Duran Seddon KC and Nadia O’Mara of Garden Court Chambers, instructed by the pro bono team at Freshfields.

Leon Glenister of Landmark Chambers appeared for the defendant governing body in the High Court.

See also: Child criminal exploitation and permanent exclusion from school - Leon Glenister analyses Fordham J’s ruling.