R "I" v The Governing Body of John Smeaton Community High School and Another
| Jurisdiction | England & Wales |
| Judge | MR JUSTICE COLLINS |
| Judgment Date | 04 December 2001 |
| Neutral Citation | [2001] EWHC 1156 (Admin) |
| Date | 04 December 2001 |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | NO: CO/4172/01 |
[2001] EWHC 1156 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Mr Justice Collins
NO: CO/4172/01
MISS H MOUNTFIELD (instructed by Irwin Mitchell Sols, St Peter's House, Hartshead, Sheffield S1 2EL) appeared on behalf of the Claimant
MR K STEYN (instructed by The Governing Body of John Smeaton Community High School) appeared on behalf of the First Defendant.
MR A HUDSON (instructed by Russell Jones, 80–86 Grays Inn Road, London WCIX 8DH appeared on behalf of the Second Defendant
Tuesday, 4th December 2001
This is an application by Mrs I for permission to claim judicial review against the governing body of the school which her son attends and the NASUWT (the National Association of School Masters and Women Teachers).
The circumstances very briefly are these. The claimant's son, who is 14, was involved in an assault on a teacher at the school on 2nd March of this year. He was excluded permanently. The governors upheld that exclusion. There was an appeal to the Independent Appeal Panel, whose decision is, by the statute, binding on the school and the governors and that Panel determined that he should be reinstated. It found that the assault had taken place, indeed it was not disputed, but that there was extreme provocation and that the claimant's son had only used such force as was reasonably necessary to deal with the situation. The situation was that the teacher in question (who I think was a supply teacher) had been observed by the claimant's son to be having an altercation with the son's friend. The altercation involved the teacher grasping this friend by his lapels, lifting him off the ground and shaking him. On the face of it, it was an assault by the teacher upon the claimant's son's friend. The claimant's son did what he did to rescue the friend.
The governors initially refused to reinstate because they said no teacher would teach him. That was clearly wrong. On 21st May, recognising that, the claimant's son was allowed to return but was not permitted to take part in any group activities. Effectively, he works by no means the full week on his own with a single (usually I gather supply) teacher to teach him. It is obvious from that he is not taking full part in school life. He is not getting the full benefit from the teaching, and he is thus not obtaining what he should under the National curriculum, although he is being taught.
The reason why the Union has been brought in to the picture is because the teachers at the school have indicated that they have no desire to teach the claimant's son, and there is a threat that if they are required to do so by the governors, if the claimant's son is put back into the mainstream of the school, then they will withdraw their labour. Of course, in order to do that, they would have to go through the process of a ballot and Union approval. The Union has indicated, and this is confirmed in the letter of 1st October, that they would put to the members, that is the teachers, the proposition that the claimant's son returns to school forthwith and follows the standard timetable. They continue:
"In view of [his] history of violence towards NASUWT members, we expect members to reject this proposal and request the National Officers' Action Committee to authorise a ballot for industrial action.
2. That if the school can prepare a timetable where [the claimant's son] returns to study at the school, but is not taught by any NASUWT members and is fully supervised at breaks and lunchtime, we will recommend that members accept this as a positive proposal that is in the interest of all interested parties."
That, of course, is not an indication that there will be strike action, merely that a recommendation would be made. Then of course it would be up to the teachers at the school to decide whether they did indeed wish to take strike action if it was required that the claimant's son was put into the mainstream, if I may put it that way. Perhaps a clue to this lies in the second sentence of the first paragraph of the letter which I have just read and I requote:
"In view of his history of violence towards NASUWT members."
Now the Independent Panel was looking at one incident of violence and reaching conclusions based on that. It is clear from what I have read from that letter that there is likely to be rather more in the background of this. That is of course one of the problems in the system that exists of the independent body 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 strike if required to teach him and the question was: what should be done? Laws LJ gave the leading judgment in that case and decided that reinstatement; did not mean full reinstatement, all that was necessary was that the governors did all that they reasonably could in the circumstances to achieve as close to normality as they could. But they had a duty not only to the child in question but also to the other children at the school and, obviously, if there was to be a strike which closed the school down that would have most damaging effects upon the other children. Accordingly, that was a matter which they not only could but were bound to take into account.
The Union (the NASUWT) was not represented before the Court of Appeal. Laws LJ made certain observations about its conduct,...
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