R A Parent v Governing Body of XYZ School
| Jurisdiction | England & Wales |
| Judge | Mrs Justice Lang |
| Judgment Date | 16 May 2022 |
| Neutral Citation | [2022] EWHC 1146 (Admin) |
| Docket Number | Case No: CO/2750/2021 |
| Year | 2022 |
| Court | Queen's Bench Division (Administrative Court) |
[2022] EWHC 1146 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Mrs Justice Lang DBE
Case No: CO/2750/2021
Michael Etienne (instructed by Just For Kids Law) for the Claimant
Alexander Line (instructed by Legal Services) for the Defendant
The Interested Party did not appear and was not represented
Hearing date: 5 April 2022
Approved Judgment
(Anonymity Orders made)
The Claimant seeks judicial review of the decision to exclude her son (“A Pupil”) permanently from XYZ School (“the School”), a process which culminated in a Reconsideration decision by the Defendant (“the Governing Body”) to maintain the decision to exclude him, notified to the Claimant by a letter dated 11 May 2021.
The Claimant's grounds for judicial review of the Governing Body's Reconsideration decision are, in summary, as follows:
i) The Governing Body's decision was vitiated by actual or apparent bias.
ii) The Governing Body erred in law by conducting a review of its earlier decision, instead of considering the matter “afresh”, as advised in the Department for Education's Schools Exclusion Guidance, at paragraph 176.
iii) In the light of the findings of the Independent Review Panel (“IRP”) in its letter of 1 April 2021, the decision to exclude A Pupil could not be lawfully or rationally maintained by the Governing Body.
iv) The Governing Body unfairly pre-determined its decision.
Factual summary
A Pupil, whose date of birth is 31.10.03, was a pupil at the School at all material times until he was permanently excluded by the Headteacher with effect from 13 December 2019. At the date of the exclusion decision, he was aged 16 and in Year 11, his final year at the School.
The School is a co-educational mainstream school for pupils aged 11 to 16 years. It is maintained by the local education authority which is the Interested Party (“XYZ Borough”).
On 26 June 2019, a 12 year old female pupil at the School (“the Complainant”) made disclosures alleging serious sexual misconduct towards her by A Pupil and other pupils. These matters were referred to the Police and to local authority Social Care services (“Social Care”) at both XYZ Borough, and ABC Borough, in which A Pupil and his family reside. The School's Designated Safeguarding Lead (“DSL”) took a leading role, under the overall control of the Headteacher.
A Pupil was under police investigation for oral rape of a minor from June 2019. As a result, the Headteacher and the Governing Body were advised not to undertake their own investigation into those matters, and not to disclose any information concerning the disclosures or the investigation to the Claimant and A Pupil, to avoid any interference with the police investigation. The Police provided limited information to the DSL and Headteacher.
A Safeguarding Team conducted an initial risk assessment on 27 June 2019 and advised that the Complainant should be kept apart from A Pupil. A Pupil was required to study in the internal exclusion room at School, and to be chaperoned when moving around the School building.
On 3 September 2019, XYZ Borough informed a member of the school staff that A Pupil had been arrested and released on bail with conditions, including a condition prohibiting contact with the Complainant. So, at the beginning of the autumn term, on 4 September 2019, the Headteacher informed A Parent and A Pupil that because of his arrest and bail conditions, A Pupil could not attend School. A Parent explained that A Pupil had not been arrested over the summer holidays. Further enquiries confirmed that A Pupil had not been arrested, but that his arrest was imminent. Later on 4 September 2019, the Headteacher informed A Parent that A Pupil could not return to school until a risk assessment had been carried out by Social Care. However, on 5 September 2019, following a conversation between the Headteacher and XYZ Borough Social Care about the risk assessment, and a meeting between the Headteacher and A Parent, it was agreed that A Pupil could return to School, but that he would have to remain in the internal exclusion room. At that time, the School's view was that there were no grounds upon which he could be required to remain at home. The Headteacher spoke to both the police and the local authorities about the “untenable situation” (Minutes of Governing Body meeting on 5 February 2020).
The Police arrested A Pupil at the School on 27 September 2019. Initially he was released on bail, subject to conditions. On or about 24 October 2019, he was released under investigation, without conditions. Following his arrest, A Pupil was required by the School to remain at home. Educational provision was to be arranged by XYZ Borough.
During the autumn term, the Headteacher and the DSL made numerous attempts to obtain support and advice from the Social Care staff at the two local authorities. In September 2019, ABC Borough stated that A Pupil's case could not be opened until he had been arrested. After his arrest, ABC Borough took the view that it was the responsibility of XYZ Borough to undertake any risk assessment. However, even after his arrest, ABC Borough did not take any active steps in this regard. In September 2019, the Specialist CSE and HSB Social Worker at XYZ Borough sent an email to the School explaining why, on reflection, she felt she could not complete a Harmful Sexual Behaviour Risk Assessment for A Pupil as he was the responsibility of a different local authority, who held his social care files. As well as access to the files, it would be necessary for both A Pupil and his family to participate in the assessment, and his parents had not agreed to do so. In the event, neither Borough undertook a risk assessment prior to A Pupil's exclusion.
When A Pupil was arrested, police officers found indecent images of sexual acts involving a minor on A Pupil's mobile phone. Notes of a Strategy Review meeting at the School, on 9 October 2019, included the following:
“After an initial download and brief look, the police have obtained three videos from his mobile telephone – one including a group engaging in vaginal sex with a young female. On first looks, it cannot be confirmed to be [the Complainant]. These three videos were sent to [the Complainant's] mobile telephone number. It is likely that there will be charges for the obtaining, saving and sharing child pornography. The phone will be downloaded entirely and looked at more closely, however this will take some time……
Actions:
….
— a joint meeting (police and sw) will be conducted to question [name redacted] about the third video.
— to complete a full download, look at the videos more closely for more detail and possibly question the young men again.”
On 5 December 2019, the Specialist CSE and HSB Social Worker at XYZ Borough sent an email to senior management at the School stating:
“I have confirmed with the Officer in Charge that we are allowed to tell [the School] that:
— He is released under investigation for the oral rape of a 12 year old. There are no conditions attached to the RUI but if he was to approach [the Complainant] it would be considered witness intimidation which is an arrestable offence.
— He had indecent images of children on his phone.”
On 12 December 2019, the Police sent an email to senior management at the School stating:
“[A Pupil] is still under investigation for the offence of rape.
He does not have any conditions in place.
If he was found to be contacting the victim in regards to the offence, directly or via third-party he would be arrested for a further offence.
It has not be [sic] a request from police that he be excluded from school, I was advised this was the policy at the time.”
The Headteacher's decision
The decision to exclude A Pupil was taken by the Headteacher on 13 December 2019, and took immediate effect. Prior to taking the decision, the Headteacher did not interview A Pupil about the allegations, nor discuss A Pupil's situation with the Claimant. A revised letter was issued on 16 December 2019 (the earlier letter was apparently sent out in error). The stated reason for the exclusion was as follows:
“Following information received from [XYZ Borough's] Principal Officer Safeguarding in Education and the police, [A Pupil] has been excluded for sending obscene pictures of a sexual act involving a minor, to another student who is the alleged victim of such an act. His involvement in this act is being investigated by the police. This is a serious breach of the school's behaviour policy. Additionally, I am of the view that allowing [A Pupil] to remain in the school would seriously harm the education or welfare of others in the school.”
The letter explained that the Governing Body would hold a meeting to review the decision, which the Claimant was invited to attend, and to make written representations in advance of the meeting.
The Governing Body's review of the Headteacher's decision
A Panel of the Governing Body considered the Headteacher's decision at meetings on 5 and 26 February 2020.
The Headteacher explained that the decision was based on:
i) The School's Behaviour Policy;
ii) The School's Safeguarding Policy, at Section 6(a):
“Peer on peer abuse can manifest itself in many ways. This may include bullying (including cyber bullying), physical abuse, sexual violence / sexual harassment, ‘up-skirting’, ‘sexting’ or initiation / hazing type violence and rituals. We do not tolerate any harmful behaviour in school and will take swift action to intervene where this occurs. We use lessons and assemblies to help children understand, in an age-appropriate way, what abuse...
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