ELM's Application by her Mother and Next Friend
| Jurisdiction | Northern Ireland |
| Judge | Huddleston J |
| Judgment Date | 20 December 2019 |
| Neutral Citation | [2019] NIQB 107 |
| Court | Queen's Bench Division (Northern Ireland) |
| Date | 20 December 2019 |
1
Neutral Citation No: [2019] NIQB 107
Ref:
HUD11075
Judgment: approved by the Court for handing down
Delivered:
20/12/2019
(subject to editorial corrections)*
No. 19/46348/01
IN THE HIGH COURT OF JUSTICE IN NORTHERN IRELAND
________
QUEEN’S BENCH DIVISION (JUDICIAL REVIEW)
________
IN THE MATTER OF AN APPLICATION BY ELM BY HER MOTHER AND
NEXT FRIEND LM FOR JUDICIAL REVIEW
________
HUDDLESTON J
Introduction
[1] This is a challenge by ELM (“the Applicant”) to the legality of the decision
taken by the Education Authority’s Expulsion Committee (“the Committee”) on
6 March 2019 not to expel a male pupil, anonymised as HD, from the school in
question (“the School”).
[2] ELM and HD are both pupils at the School. ELM alleged that HD sexually
assaulted her during a class on 20 December 2018 – an assault which HD
subsequently admitted.
[3] The Board of Governors of the School convened a meeting on 11 February
2019 the outcome of which was a recommendation to the Expulsion Committee (“the
Committee”) of the Education Authority (“EA”) that HD be expelled.
[4] The Committee hearing took place on 6 March 2019. The outcome of that
hearing was that the Committee decided that HD should not be expelled. The
Committee set out its decision in a letter dated 8 March 2019 which was sent to the
School Principal. It is that decision (“the Impugned Decision”) which is under
challenge by the Applicant.
Relevant Statutory Framework and Legal Principles
[5] Article 49 of the Education and Libraries (NI) Order 1986 (“the 1986 Order”)
(as amended) provides as follows:
“Suspension and expulsion of pupils
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49(1) Each board shall prepare a scheme specifying the
procedure to be followed in relation to the suspension and
expulsion of pupils from controlled schools.
…
(4) The scheme prepared under paragraph (1) shall provide
that a pupil may be expelled from a school only by the
expelling authority and shall include provision for such other
matters as may be prescribed.”
For the purposes of the Order the “expelling authority” is the Education Authority in
the case of a controlled school.
[6] The Schools (Suspension and Expulsion of Pupils) Regulations (NI) 1995 (“the
1995 Regulations”) set out (at Regulation 3) the matters for which provision should
be made in schemes which are prepared under the 1986 Order. Pursuant to both
Article 49 and Regulation 3 of the 1995 Regulations “The Scheme for Suspension and
Expulsion of Pupils in Controlled Schools” (“the Scheme”) was introduced. It is
important to set out at this stage the more relevant parts of that Scheme – emphasis
added in bold.
[7] Paragraph 5.2 of the Scheme provides that:
“In relation to controlled schools, the Education Authority is
the expelling authority and the decision to expel rests solely
with the Education Authority (EA)”.
[8] Paragraph 5.3 provides that:
“Controlled schools have the power, through their Board of
Governors, to recommend to the EA that a pupil be expelled.”
[9] Paragraph 5.8 of the Scheme provides as follows:
“Expulsion should be used only in response to serious breaches
of a school’s discipline policy and only after a range of
alternative strategies to resolve the pupil’s disciplinary
problems have been tried and proven to have failed and where
allowing the pupil to remain in school would be seriously
detrimental to the education or welfare of other pupils and staff,
or of the pupil himself or herself. However, there may be
circumstances where it is appropriate to expel a pupil for a first
or ‘one-off’ offence. These might include serious actual or
threatened violence against another pupil or a member of staff;
sexual abuse or assault; supplying an illegal drug; or carrying
an offensive weapon”.
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