High Court Upholds School’s Decision in Landmark Exclusion Case

Background

This case involves the decision of a Headteacher to exclude a student (TM) on the basis that he had committed “acts of sexual violence and harassment towards other students on and off the school premises.”  These acts included touching another male student’s genitals, asking to see other students’ genitals or for them to feel his, inappropriately touching a female student and making sexually explicit remarks about female students. In the Headteacher’s view these actions “were significant and persistent breaches of the school’s rules” necessitating TM’s exclusion to protect other students at the school. A managed move to another school had been considered but had been ruled out.

The decision to exclude TM was considered by a disciplinary committee of the governing body of the school (the GDC.) They determined that the Headteacher’s decision was reasonable and procedurally correct, and the GDC rejected the criticisms put forward by the  barrister who has been instructed by the Claimants and TM.

The Claimants exercised their right to a review. An Independent Review Panel (IRP) carried out this review and, by a majority decision, overturned the GDC's decision for permanent exclusion and instructed the governing body to reconsider TM’s reinstatement . The IRP highlighted several criticisms of the GDC, including procedural failings and a failure to consider relevant matters. Consequently, the governing body established a reconstituted disciplinary committee made up of three different governors (the RGDC) to reconsider TM’s exclusion. After reviewing all the pertinent information, the RGDC once again concluded that the decision to exclude TM was “lawful, rational and fair” and thus concluded that TM should not be reinstated.

The Claimants had no further right of internal appeal after the RGDC’s decision, as is standard practice. As such, the Claimants chose to commence judicial review proceedings in the High Court.  Judicial review is a type of court proceeding in which a judge reviews the lawfulness of a decision or action made by a public body. Judicial reviews are a challenge to the way in which a decision has been made, rather than the actual rights and wrongs of the conclusion reached.

Judicial review

On 02 October 2023 proceedings were issued by the Claimants. They sought  a quashing order regarding the RGDC’s decision, as well as mandatory orders, which included a provision to readmit TM into the school. The permission for judicial review was initially refused on the papers but was later granted following an oral permission hearing. The Claimant presented six grounds, which are outlined as follows:

1.      The RGDC’s findings of fact were irrational and unclear.

2.      The RGDC acted irrationally and contrary to statutory guidance in deciding that it could decide whether to uphold the Headteacher’s decision without obtaining a risk assessment.

3.      The RGDC acted unreasonably by not seeking further evidence in relation to the authenticity of the pupil’s statements and how independently they had been obtained.

4.      The RGDC acted irrationally in concluding that permanent exclusion was a last resort in the absence of evidence that alternatives had been properly explored.

5.      The RGDC acted procedurally improperly by not allowing the Claimants (nor TM) to make oral representation before the RGDC.

6.      Taken together the forgoing establishes that it was not possible for the RGDC, on a paper-based review of the materials, to uphold the Headteacher’s decision to permanently exclude TM.

The High Court rejected all grounds and dismissed the case. The Court found that the RGDC had conducted a “conscientious reconsideration” and that the exclusion decision was justified to protect other students.

Key takeaways

The judgment provides guidance for schools and governing boards on handling exclusions, emphasising the importance of procedural fairness throughout the exclusion process. The judge highlighted that although the IRP made extensive criticisms of the decision, ultimately he could not find any legal flaw with the reconsideration.

Ensuring that governing body panels have all relevant evidence when they come to consider the reasonableness of a Headteacher’s decision to permanently exclude is vital. Whilst not undertaking a risk assessment in this case was not ultimately found to be unlawful by the High court, had one been carried out prior to exclusion this may have removed one potential ground of appeal by the Claimants. Each case must be considered on its own facts, and witness testimony as well as other documentation, and potentially CCTV footage (if available and lawful to view under GDPR principles) should be collated and shared with the with the relevant panels.

This case also demonstrates how one set of governors may reach a different conclusion to an Independent Review Panel, but that in itself does not mean the original decision of the governors, or the Headteacher, was unlawful. Excluding a pupil is a serious matter, hence why the process already allows for a decision to be scrutinised at various stages by different people. In this case, the second set of governors which reviewed the decision found there was credible evidence that, on balance, TM had engaged in unwanted touching of male and female pupils, notwithstanding the potential flaws in the process which the IRP had identified.

In addition, it is essential that schools are mindful of their  communications with parents throughout the exclusion process, to maintain transparency and trust. Here one of the key reasons that this case continued to the point of High Court judgement was due to the parents consistently challenging the  decision makers. To maintain effective communication, schools need to have clear guidelines on their exclusion process (which are lawful and in line with any applicable Local Authority guidelines), timelines and must keep parents informed throughout the process. A supportive dialogue with parents will be essential, so they are able to express their concerns and any raise questions without recourse to legal proceedings.