L v J

JurisdictionEngland & Wales
Judgment Date24 July 2001
Neutral Citation[2001] EWCA Civ 1199
CourtCourt of Appeal (Civil Division)
Docket Number(1) C/2001/0984
Date24 July 2001

[2001] EWCA Civ 1199







Royal Courts of Justice

Strand, London, WC2A 2LL


Lord Justice Thorpe

Lord Justice Clarke

lord Justice Laws

(1) C/2001/0984

(2) C/2000/3492

In The Matter Of An Application For Judicial Review


(1) NICHOLAS BOWEN (instructed by Messrs Teacher Stern Selby of London WC1R 4JH) appeared on behalf of the applicant.

(1) MRS JANE OLDHAM (instructed by Messrs Winckworth Sherwood of London EC4V 5AA) appeared on behalf of the respondent.

(2) TIM KERR QC and DEBORAH HAY (instructed by Fisher Meredith of London SW2 6TA) appeared on behalf of the applicant.

NIGEL GIFFIN (instructed by Messrs Winckworth Sherwood of London EC4V 5AA) appeared on behalf of the respondent.




Before us there are two matters falling for the court's decision. The first is an appeal, brought with permission granted by the judge below, against a decision of Richards J given in the Administrative Court on 2 November 2000. Richards J dismissed an application for judicial review against the Governors of B School brought by the appellant W, a girl aged 15 at the time of the first instance judgment. The second matter in form consisted in an application for permission to appeal against an order made by Henriques J in the Administrative Court on 26 April 2001, when he dismissed an application for judicial review against the Governors of J School brought by L, a boy aged 16 who was a pupil at the school.


As I shall show, the issues in W have been rendered moot or academic as between the parties by force of supervening events. But these issues are to some extent common with those arising in L's case; and to the extent that they are common they are of considerable public importance. For my part I was much assisted by submissions put forward on behalf of W by Mr Kerr QC. However the course I propose to take is to outline the facts in W relatively briefly, and to address the issues of substance in the context of the case of L. As I shall show, Henriques J in L largely adopted Richards J's reasoning in W. We granted permission to appeal to L at the outset of the hearing, which then proceeded as the substantive hearing of both appeals.



W had been the subject of an initial decision by the principal of B school to the effect that she be excluded for a week. However the principal thereafter proceeded to recommend to the Board of Governors that the exclusion be made permanent. These initiatives by the principal followed a serious and violent incident at the school on 4 February 2000. The Board of Governors confirmed the principal's recommendation of permanent exclusion. W's parents appealed to an independent appeal panel pursuant to s.67 of the School Standards and Framework Act 1998. I shall set out the relevant legislation shortly. Their appeal was allowed by a decision communicated on 14 April 2000, to the effect that W be excluded for a fixed period ending on 2 May 2000, when she should be reinstated.


However, when W returned to the school the staff refused to teach her. Representatives of the three teaching unions (NUT, NASUWT and ATL) informed the principal that their members were unwilling to do so. Industrial action was threatened should steps be taken to compel them. During the first week of the term, the principal tried to persuade them otherwise; to no avail. In the result, W worked in the mornings on her own in a room outside the principal's study. In the afternoon from about half way through the summer term, she went to a pupil support centre outside the school. The Secretary of State declined to use his statutory powers to intervene in the matter. So it was that the parents, nominally W herself, sought judicial review against the Governors, asserting that W had not been reinstated in accordance with the decision of the appeal panel: alternatively that the discretion as to the manner in which she had been reinstated had not been lawfully exercised. The thrust of the challenge was to the effect that there had been a capitulation to the exertion of illegal or improper pressure by the trade unions. Richards J dismissed the claim but, as I have said, granted permission to appeal.


However since the first instance judgment in November 2000, events have significantly moved forward. There were further negotiations with staff and unions. At length a programme of reintegration for W was agreed, to commence in the latter part of the Christmas Term 2000. Then from 9 January 2001 W has been successfully reintegrated into mainstream classes at the school. She has pursued or continued to pursue her GCSE curriculum: she sits the GCSE exams this summer; by the date of our judgments' delivery I imagine she will have sat them.


The appeal in W would reiterate the points taken below. Essentially the question is whether W was lawfully reinstated in the school following the appeal panel's decision, within the meaning of the relevant provisions of the Act of 1998. As I have foreshadowed, I do not propose to go into that issue on the facts of W's case. For all I know, anything said in this court about the merits might be distinctly less than helpful in the context of the balances that have plainly been struck in getting an agreed solution for W's continued education at the school. I take this view with no misgivings, since any public interest which this court may serve in determining issues arising under the material provisions of the Act of 1998 can be fulfilled by our decision in the other case of L.



Before turning to the facts in L which I will have to address in somewhat greater detail, it is convenient to set out the relevant statutory provisions.


The School Standards and F ramework Act 1998 so far as material provides as follows:

"38(1) Subject to any other statutory provision, the conduct of a maintained school shall be under the direction of the school's governing body.

(2) The governing body shall conduct the school with a view to promoting high standards of educational achievement at the school


(1) The head teacher of a maintained school may exclude a pupil from the school for a fixed period or permanently.

(2) The head teacher may not exercise the power to exclude a pupil from the school for one or more fixed periods such that the pupil is so excluded for more than 45 school days in any one school year.

(4) In this Act 'exclude', in relation to the exclusion of a child from a school, means exclude on disciplinary grounds (and 'exclusion' shall be construed accordingly).


(1) Where the head teacher of a maintained school excludes any pupil, the head teacher shall (without delay) take reasonable steps to inform the relevant person of the following matters-

(a) the period of the exclusion (or, if the pupil is being permanently excluded, that he is being so excluded);

(b) the reasons for the exclusion;

(c) that he may make representations about the exclusion to the governing body, and

(d) the means by which such representations may be made.

(2) Where the head teacher decides that any exclusion of a pupil for a fixed period should be made permanent, he shall (without delay) take reasonable steps to inform the relevant person of-

(a) his decision, and

(b) the matters specified in paragraphs (b) to (d) of subsection (1).

(3) Subsection (4) applies where the head teacher-


excludes any pupil in circumstances where the pupil would, as a result of the exclusion-

(i) be excluded from the school for a total of more than five school days in any one term, or

(ii) lose an opportunity to take any public examination,

(b) excludes a pupil permanently, or

(c) decides that any exclusion of a pupil should be made permanent.

(4) Where this subsection applies, the head teacher shall (without delay) inform the local education authority and the governing body of the following matters-

(a) the period of exclusion (or, if the pupil is being permanently excluded, that he is being so excluded), or

(b) his decision that any exclusion of a pupil for a fixed period should be made permanent; and (in either case) of the reasons for it.

(5) In this section and in sections 66 and 67 'the relevant person' means;

(a) in relation to a pupil under the age of 18, a parent of his;

(b) in relation to a pupil who has attained that age, the pupil himself

66(1) Subsections (2) to (6) apply where the governing body of a maintained school are informed under section 65(4) of any exclusion or decision to which that provision applies.

(2) The governing body shall in any such case-

(a) consider the circumstances in which the pupil was excluded;


consider any representations about the exclusion made to the to the governing body-

(i) by the relevant person in pursuance of section 65(1)(c) or (2)(b), or

(ii) by the local education authority;

(c) allow each of the following, namely-

(i) the relevant person, and

(ii) an officer of the local education authority nominated by the authority, to attend a meeting of the governing body and to make oral representations about the exclusion; and

(d) consider any oral representations so made.

(3) In a case where it would be practical for the governing body to give a direction to the head teacher requiring the reinstatement of a pupil, they shall in addition consider whether he should be reinstated immediately, reinstated by a particular date or not reinstated.

(4) If the governing body decide that the pupil should be reinstated, they shall forthwith-

(a) give the appropriate...

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3 cases
  • R(L (A Minor)) v Governors of J School
    • United Kingdom
    • House of Lords
    • 27 February 2003
    ...Foscote Lord Walker of Gestingthorpe In re L (a minor by his father and litigation friend) (Appellant) Session 2002-03 on appeal from: [2001] EWCA Civ 1199 OPINIONS OF THE LORDS OF APPEAL FOR JUDGMENT IN THE CAUSE LORD BINGHAM OF CORNHILL My Lords, 1 This appeal concerns the meaning and eff......
  • L., Re, (2003) 303 N.R. 166 (HL)
    • Canada
    • 27 February 2003
    ...of accepting it (paragraph 27 of his judgment). The Court of Appeal (Thorpe, Clarke and Laws, L.J.J.) agreed: [2001] L.G.R. 561; [2001] E.W.C.A. Civ. 1199. In a leading judgment with which the other members of the court concurred, Laws, L.J., said (in paragraph 26): "26. Like Henriques......
  • R "I" v The Governing Body of John Smeaton Community High School and Another
    • United Kingdom
    • Queen's Bench Division (Administrative Court)
    • 4 December 2001
    ...which directs reinstatement without perhaps knowing the full background to the matter. Having said that in R v Governors of J School [2001] EWCA Civ 1199, this problem arose in its stark form. The body had directed reinstatement. The teachers, through the union, had decided that they would ......

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