Glasgow City Council For Judicial Review Of An Interlocutor Dated 4th July 2003 Of A Sheriff Of The Sheriffdom Of Glasgow And Strathkelvin At Glasgow
| Jurisdiction | Scotland |
| Judge | Lord Menzies |
| Date | 15 January 2004 |
| Court | Court of Session |
| Published date | 04 February 2004 |
| OUTER HOUSE, COURT OF SESSION | |
|
| OPINION OF LORD MENZIES in the petition of GLASGOW CITY COUNCIL for JUDICIAL REVIEW OF AN INTERLOCUTOR DATED 4 JULY 2003 OF A SHERIFF OF THE SHERIFFDOM OF GLASGOW AND STRATHKELVIN AT GLASGOW UNDER SECTION 28H OF THE EDUCATION (SCOTLAND) ACT 1980 ________________ |
Petitioners: Bovey, Q.C.: Edward Bain, Solicitor, Edinburgh City Council
Respondent: O'Carroll; Mowat Hall Dick
15 January 2004
INTRODUCTION
[1]In this petition for judicial review the petitioners seek reduction of an interlocutor dated 4 July 2003 pronounced by a sheriff sitting at Glasgow. The petitioners are an Education Authority in terms of the Education (Scotland) Act 1980 (as amended) ("the Act"). In fulfilment of their functions under the Act, they own and manage Ashcraig Secondary School, 100 Avenue Road, Glasgow. This is a school which caters for children with physical impairment and/or chronic or acute health conditions. Such children include those with cerebral palsy, and heart transplants, blind pupils and wheelchair users. They also include those who suffer from mental handicap or learning disability. The welfare of every pupil in the school, especially their physical safety and educational wellbeing, is of the utmost importance due to the fact that the pupils are exceptionally vulnerable and fragile. Aidan Fox-Flynn is a pupil at that school. He was born on 3 July 1986 and is severely disabled. He has a record of needs which states inter alia that he must have an adult in attendance at all times to ensure his own safety and that of other pupils as he is inclined to run off suddenly and to hit out at children and staff. The respondent is his mother.
[2]On 31 January 2002 the child, who was aged 15 years and six months, arrived at the school in a taxi accompanied by his escort, a Mrs Maureen Harmer. As the child was getting out of the taxi, part of the handle or handrest that he was holding gave way. He was frightened by this sudden loss of support. It appears that he became angry and kicked and punched the taxi door and grabbed and held onto Mrs Harmer's face, injuring her. The child then ran to another taxi and began kicking it. Mrs Enid Campbell, who was escorting a blind pupil to the school witnessed this incident and intervened to calm the child down and take him to the Deputy Head Teacher. Mrs Harmer required hospital treatment for her facial injuries.
[3]As a result of this incident the petitioners decided to exclude the child from school for 14 days. They intimated their decision in this regard to the respondent by letter dated 31 January 2002. I shall return to the terms of this letter and its attachments later. The respondent exercised her right to refer this decision to an Appeal Committee set up under section 28D of the Act. The Appeal Committee wrote to the respondent by letter dated 14 May 2002 intimating that the appeal against the decision to exclude the child had been unsuccessful, and confirming the petitioners' decision to exclude him. The respondent then exercised her right in terms of section 28H(6) of the Act to appeal against the decision of the Appeal Committee to the sheriff. After sundry procedure, by interlocutor dated 4 July 2003, the sheriff annulled the decision of the petitioners made on 31 January 2002 to exclude the child. It is this interlocutor which the petitioners seek to reduce in the present proceedings for judicial review.
THE RELEVANT STATUTORY FRAMEWORK
[4]The relevant statutory provisions, secondary legislation and rules of court to which reference was made in submissions are as follows:
Regulations 4 and 4A of the Schools General (Scotland) Regulations 1975 (as amended)
"4.In discharging their functions under the Education (Scotland) Act 1980, an education authority shall not exclude a pupil from a school under their management to which he has been admitted, except where -
(a)they are of the opinion that the parent of the pupil refuses or fails to comply, or to allow the pupil to comply, with the rules, regulations or disciplinary requirements of the school; or
(b)they consider that in all the circumstances to allow the pupil to continue his attendance at the school would be likely to be seriously detrimental to order and discipline in the school or the educational well-being of the pupils there.
4A(1)Where in relation to any pupil in attendance at any school under the management of an education authority a decision is taken to exclude that pupil from the school the education authority shall ensure that on the day upon which the decision is taken, intimation of
(a)the decision; and
(b)a date (being a date within the period of seven days immediately following the date of the decision) and time when and place where the head teacher of the school, other teacher at the school or official of the education authority shall be available to discuss with the parent the decision to exclude the pupil
shall be made orally or in writing to the parent of the pupil....
(2)Where in relation to such a pupil, such a decision is taken, the education authority may at any time within the period of eight days aftermentioned or thereafter and as respects such a pupil as is specified in paragraph (3) for the purposes of this paragraph, the education authority shall, within the period of eight days immediately following the day upon which the decision is taken, ensure that intimation in writing is made to the parent of the pupil, where the pupil is a child, or to the pupil himself, where he is a young person, of -
(a)the reasons for the decisions to exclude;
(b)the conditions, if any, with which the pupil and his parent or either the pupil or his parent are required to comply or to undertake to comply as conditions precedent to the pupil being readmitted to the school;
(c) the right to refer the decision under section 28H of the Education (Scotland) Act 1980 to an Appeal Committee set up and maintained under section 28D of that Act;
(d)the address to which such a reference should be made; and
(e)any other information which the education authority consider appropriate;
and such intimation may be sent by post or be handed to the parent or where the pupil is a young person, to the pupil by the head teacher or other teacher of the school from which the pupil was excluded or an official of the education authority.
(3)The following pupils being pupils mentioned in regulation 4A(1) are hereby specified for the purposes of paragraph (2) namely -
(a)a pupil who has not been readmitted to the school from which he was excluded within seven days of the date of the decision so to exclude him;
(b)a pupil whose parent has not indicated orally to the head teacher of the school or in writing after receiving intimation in accordance with paragraph (1) within seven says of that date, that he does not wish to refer the matter to an appeal committee in accordance with section 28H of the Education (Scotland) Act 1980 or otherwise to pursue the matter further...".
The relevant provisions of the Education (Scotland) Act 1980 (as inserted by the Education (Scotland) Act 1981) are as follows
"28H-(1)Where an education authority decide to exclude a pupil from a school under their management which he attends the parent of the pupil or, where the pupil is a young person, the pupil may refer the decision to an appeal committee set up under section 28D of this Act.
(2)An appeal committee may, on a reference under this section, confirm or annul the decision of the education authority excluding the pupil and, in confirming a decision of the authority to exclude a pupil until certain conditions stipulated by them are complied with, the committee may modify the conditions.
(3)the decision of an appeal committee on a reference under this section and the reasons for it shall be notified by the committee in writing to the parent or, as the case may be, the pupil making the reference and to the education authority.
(6)The decision of an appeal committee confirming an education authority's decision to exclude a pupil or modifying conditions under sub-section (2) above may be appealed against by the parent of the pupil or, where the pupil is a young person, the pupil to the sheriff having jurisdiction where the school from which the pupil has been excluded is situated, and subsections (2), (3), (4), (8) and (9) of section 28F of this Act shall apply to an appeal under this subsection.
(7)The sheriff may, on an appeal under subsection (6) above, confirm or annul the decision of the education authority excluding the pupil and, in confirming a decision excluding the pupil until certain conditions stipulated by them are complied with, he may modify the conditions."
The relevant subsections of section 28F are as follows:
"(2)The education authority may, but the appeal committee shall not, be a party to an appeal under this section.
(3)An appeal under this section -
(a)shall be made by way of summary application...
(9)The judgment of the sheriff on an appeal under this section shall be final."
The relevant sections of the Sheriff Courts (Scotland) Act 1907 provide as follows:
"27.Appeal to Sheriff - subject to the provisions of this Act an appeal to the sheriff shall be competent against all final judgments of the sheriff substitute.
50.Summary Applications - in summary applications (where a hearing is necessary) the sheriff shall appoint the application to be heard at a diet to be fixed by him, and at that or any subsequent diet (without record of evidence unless the sheriff shall order a record) shall summarily dispose of the matter and give his judgment in writing...: provided also that nothing contained in this Act shall affect any right of appeal provided by any Act of Parliament under which a summary application is brought."
Rule 58.3 of the Rules of the Court of Session provides as follows:
"(1) Subject to paragraph (2), an application to the supervisory jurisdiction of the Court...
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