R v Fernhill Manor School, ex parte A
| Jurisdiction | England & Wales |
| Judgment Date | 22 May 1992 |
| Date | 22 May 1992 |
| Court | Queen's Bench Division |
BROOKE, J
Education – independent school – expulsion of pupil – rules of natural justice not observed – application for judicial review – whether public law remedies available.
The applicant, a schoolgirl, attended an independent school from 1987 when she was aged 11. One of the terms of the contract between the parents and the school was that the head teacher reserved the right of requiring the removal of a pupil whose influence was found to be detrimental to her companions or whose conduct and application to work was unsatisfactory. In Sepember 1991 the parents were informed by a letter from the headmaster that the girl had been expelled from the school for alleged bullying and intimidatory behaviour. Neither she nor her parents had been informed of the allegations made against her before the decision to expel her, nor were they given any opportunity to respond to the allegations. The headmaster's decision to expel the applicant was endorsed by the school governors. The applicant denied the allegations and made an application by her mother and next friend for judicial review. She sought an order of certiorari to quash the decisions to expel her, a declaration that the decisions were improper and invalid by reason of a failure to apply the rules of natural justice, and orders of mandamus requiring the school to conduct a proper hearing and in the interim to re-admit her.
Held – dismissing the application: In order to fall within the scope of public law and to be susceptible to judicial review, the decision which was sought to be challenged must be that of a public body and must be made by that body in the exercise of a power which was underpinned by statute and which did not derive solely from contract. Although private schools operated within a statutory framework of control, the relationships between such schools and those who attended them were founded on the contract which was made between the school and those who were paying for the teaching and education of the pupils at the school. That contract was completely private and was not underpinned by statute. Consequently, although the rules of natural justice were not followed in the applicant's case, that case fell fairly and squarely into the private law sector and public law remedies could provide no relief.
Statutory provisions referred to:Education Act 1944, ss 1, 35, 36, 70 and 71.
Cases referred to in judgment:Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374; [1984] 3 All ER 935.
Durayappah v Fernando [1967] 2 AC 337.
Glynn v Keele University [1971] 1 WLR 487; [1971] 2 All ER 89.
Hannam v Bradford Corporation [1970] 1 WLR 937; [1970] 2 All ER 690.
Herring v Templeman [1973] 3 All ER 569.
Law v National Greyhound Racing Club Ltd [1983] 1 WLR 1302; [1983] 3 All ER 300.
Leech v Deputy Governor of Parkhurst Prison [1988] AC 533; [1988] 2 WLR 290; [1988] 1 All ER 485.
Malloch v Aberdeen Corporation [1971] 1 WLR 1578.
R v Aston University Senate, ex parte Roffey [1969] 2 QB 538; [1969] 2 WLR 1418; [1969] 2 All ER 964.
R v Board of Governors of the London Oratory School, ex parte Regis (1988) The Times, 17 February.
R v Derbyshire County Council, ex parte Noble [1990] ICR 808.
R v East Berkshire Health Authority, ex parte Walsh [1985] QB 152; [1984] 3 WLR 818; [1984] 3 All ER 425; [1984] ICR 743.
R v Panel on Take-overs and Mergers, ex parte Datafin plc [1987] QB 815; [1987] 2 WLR 699; [1987] 1 All ER 564.
Michael Kolanko for the applicant.
George Leggatt for the school.
MR JUSTICE BROOKE.This is an application by a girl aged 16 by her mother and next friend for judicial review of a decision of the headmaster of Fernhill Manor School, New Milton, Hampshire on 27 Sepember 1991 to expel her from that school on the grounds of alleged bad behaviour. The headmaster's decision was endorsed by an extraordinary meeting of the board of governors of the school on 10 October 1991.
The applicant seeks an order of certiorari to quash both these decisions, a declaration that the decisions were improper and invalid by reason of a failure to apply the rules of natural justice and an order of mandamus to require the school to conduct a proper hearing in accordance with the rules of natural justice, an order of mandamus that in the interim the school re-admit the applicant in order for her to continue with her studies.
The application for leave was lodged with the court on 6 December 1991. Today Mr Kolanko accepts that it is wholly unrealistic in the circumstances of the case to expect the school to re-admit the applicant, and the primary relief he seeks is a declaration that the decisions were improper and invalid by reason of the failure to apply the rules of natural justice.
In summary form, the complaint which is made is that the applicant was a day pupil at the school between April 1987 and 28 Sepember 1991 when her parents
received from the headmaster a letter written the previous day telling them that she had been expelled from the school for alleged bullying and intimidatory behaviour. Neither she nor her parents had been informed of the allegations which were being made against her before the decision to expel her, and they were not given any opportunity to respond to the allegations which were being made or offered or permitted an opportunity to attend before the headmaster or later before the board of governors in relation to the matter.
The application came before Auld, J on paper on 21 January 1992 when he refused leave saying:
"I refuse this application with regret since, on the information that it discloses, there is an arguable case that a wrong has been done which should be remedied speedily. However, the case lacks the public element necessary for judicial review. It may be that the proper remedy lies in an action for breach of contract."
Notwithstanding this rebuff, the applicant's advisers pressed on and were granted leave to move the court by Rose, J at an oral hearing on 26 February 1992.
On 26 March Master McKenzie made an order that this application be placed in Part D of the Crown Office list as soon as possible after the expiry of the 56 days allowed for the respondents' evidence in reply. That time elapsed at the end of the first week of May, and the hearing before me started on 21 May which shows the speed with which this court is willing and still able to hear emergency applications if there is a real case of urgency.
The school which the applicant attended, Fernhill Manor School, is an independent girls' school. It is owned by a company limited by a guarantee without a share capital. The brochure shows that there has been a school on the site since about 1922, although the then school lapsed during the last war and was re-formed just after the war.
There are now two separate schools each with their own head. There are about 160 girls in the junior school between the ages of about 3 and 11 or 12, and there are currently 165 girls in the senior school between the ages of 11 and 18. They have education leading eventually to A levels. Of these 65 are boarding girls and the rest, like the applicant are day girls. The current level of fees is just under £1,500 per term.
In the senior school, the head teacher who has held that post since 1985 is Reverend Andrew Folks. His wife also has a teaching post and other responsibilities at the school. The senior school is manned by Mr Folks, the deputy head, Miss Wood, and a staff of 19.
The school is managed by a council of management who are treated as a board of governors. The chairman of the board of governors at the material time, Professor Aitken, has since died. The main objects of the school, which are taken from the company's memorandum of association, are:
"To provide first-class education for children, infants or students combined with sound religious training on Protestant and Evangelical principles founded on the Holy Bible."
There is before me a brochure, the terms of which form part of the contract between individual parents and the school. The only relevant paragraph of the brochure which refers to withdrawals says:
"The Heads reserve the right of requiring the removal of any pupil whose influence is found to be detrimental to her companions or whose conduct and application to work is unsatisfactory."
The applicant was born in Sepember 1975. She went first to New Milton junior school, and she joined Fernhill Manor School in the summer of 1987 when she was 11½. She spent that summer term in the junior school and then moved to the senior school.
The evidence before me shows that near the beginning of her school career when she was 12 years old she had been disciplined for fighting. Her parents were asked to attend the headmaster to discuss the matter and a warning about her behaviour was given. According to an affidavit sworn by Mr Folks (which did not come to the attention of the applicant's advisers until the very last minute, so that there was no opportunity for a reply to it), there was an occasion in the applicant's third year in the year 1989 to 1990, when she was in the upper fourth, when the applicant's mother went to see the head with the applicant concernIng her work and attitude. The head teacher records on affidavit that on that occasion the applicant behaved in a surly and aggressive manner towards her mother and himself.
In the year 1990 to 1991 he says that her behaviour did not improve. He records two specific incidents; one in the autumn of 1990 when she was involved in a fight with another girl...
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