St Christopher School (Letchworth) Ltd v Doctor Paul Schymanski and Another

JurisdictionEngland & Wales
CourtQueen's Bench Division
JudgeMr Justice Holroyde
Judgment Date30 July 2014
Neutral Citation[2014] EWHC 2573 (QB)
Docket NumberCase No: 0QZ11638
Date30 July 2014

[2014] EWHC 2573 (QB)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

Royal Courts of Justice

Strand, London, WC2A 2LL

Before:

Mr Justice Holroyde

Case No: 0QZ11638

Between:
St Christopher School (Letchworth) Limited
Claimant
and
(1) Doctor Paul Schymanski
(2) Doctor Rose Rao
Defendants

Ms Anna Dilnot (instructed by Farrer & Co) for the Claimants

The Defendants in person

Hearing dates: 18 th– 28 th March, 2014

Mr Justice Holroyde
1

Between September 2007 and April 2010 the Defendants' sons Josef, Johann and Frank attended the Claimant school. In these proceedings the School claims unpaid fees for all three boys for the spring and summer terms 2010. By their Defence and Counterclaim, the Defendants deny any liability to pay those fees, and seek to recover loss and damage which they say they have incurred as a result of the School's breaches of contract.

2

Each of the defendants is a medical doctor and practises as such. They are husband and wife. In view of the allegations which they make of racial discrimination, it is relevant to note that Dr Rao is ethnic Kenyan, whilst Dr Schymanski was born in Germany and is white. For convenience I shall refer to them collectively as "the Parents". Josef was born 31 st July 1998, Johann was born 8 th May 2000, and Frank was born 16 th October 2001. For convenience I shall refer to them collectively as "the Boys".

3

Over the course of several days, I heard evidence from a number of witnesses. The School called Richard Palmer, the Head of the School; Emma-Kate Henry, the Deputy Head at the material time (though no longer at the School); Susan Rix, the Head of the Junior School; Louise Robb, a teacher; Bryan Anderson, a teacher; Paul Kelly, a teacher (now employed at a different school); Isobel Ellerby, who was formerly the Head of Individual Needs at the School and had completed a postgraduate course on the role of a "SENCO" or special educational needs coordinator (she was previously known as Pat Themistocli, and was referred to by that name in the relevant correspondence); Armande Fryatt, a Special Educational Needs teacher; Jane Miller, a teaching assistant; Carolyn Dorrington, the School's nurse; William Hawkes, the School's Bursar; Adam Caller, the director of Tutors International; and Arthur House, a private tutor. Each of the Parents gave evidence, and they called as a witness Stephen Cresswell, a private tutor. None of the Boys gave evidence.

4

I was assisted by opening addresses by Ms Dilnot and Dr Rao, and by written closing submissions on each side, all of which I have carefully considered.

5

The Parents were legally represented at earlier stages of these proceedings, but represented themselves as trial. Both, clearly, are intelligent and articulate professional persons. By agreement between themselves, and with the approval of the court, Dr Rao acted in effect as spokesperson for both, and conducted the cross-examination of witnesses. Dr Schymanksi was not present throughout all the proceedings, principally because of his involvement in the care of one of the boys who is now studying in another country, but it was made clear that each of the Parents consented to the other acting for them both. I have no doubt that Dr Rao was well able to represent both herself and her husband, and Dr Schymanski suffered no disadvantage as a result of his absence from time to time. Dr Rao sometimes had difficulty in formulating her questions, and in finding relevant documents in the bundle, but I endeavoured to assist her with the former and Ms Dilnot was usually able to assist her with the latter. In my consideration of the evidence and issues, I have made generous allowance for the fact that the Parents were representing themselves. In particular, I have been careful not to ascribe disproportionate significance to every failure by the Parents to challenge particular evidence, or to put a specific allegation, in cross-examination, because it seems to me that in many instances such failure arose from a lack of familiarity with court room procedure (though I did more than once explain to Dr Rao the need for her to clarify, and to give a witness an opportunity to respond to, a particular allegation). In a further attempt to assist the Parents I allowed them longer than I would have allowed counsel for the preparation of their written closing submissions.

The School:

6

I begin with a word about the School. The evidence shows that it is an independent school with a particular ethos. There is no school uniform, and staff and pupils address one another by their first names. It caters for pupils of all ages, a feature which the Parents told me they particularly had in mind when they selected it. Part of the School's underlying philosophy is said to be to promote understanding between pupils of different cultures and religions, and I was told that about one-quarter of pupils describe their ethnic background as something other than white British.

7

The School was at the material time subject to the requirements of the Education (Independent Schools) Regulations 2003, made pursuant to s157 of the Education Act 2002 and subsequently replaced by later Regulations. The 2003 Regulations made provision for, inter alia, the quality of education provided, and the welfare, health and safety of pupils. As to the latter, regulation 3 required the School to draw up and implement a written policy to prevent bullying, and to safeguard and promote the welfare of pupils. It also required the School to have and to implement a satisfactory policy on first aid, and to deploy staff to ensure the proper supervision of pupils. The School does have policies in all the areas in which it is required to do so, and it is not disputed that those policies comply with the School's statutory obligations. The Parents accept that suitable policies were in existence, but allege that the School failed properly to implement them. As Dr Rao put it in her opening address, everything was in place but there was a failure of due process, and it was that failure which "brought about the observed difficulties". In their closing submissions, the Parents emphasised the statutory responsibilities on all who work with children to keep the children safe. That, of course, is uncontroversial. The principal issues in the case are factual issues as to whether members of staff failed to comply with their responsibilities.

8

Regulation 7 required the School to have a written complaints procedure which, amongst other things, "(d) allows for a complaint to be made and considered initially on an informal basis". The regulation went on to require that the procedure –

"(e) where the parents are not satisfied with the response to the complaint made in accordance with paragraph (d), establishes for the complaint to be made in writing;

(f) where the parents are not satisfied with the response to the complaint made in accordance with paragraph (e), makes provision for a hearing before a panel appointed by or on behalf of the proprietor and consisting of at least three people who were not directly involved in the matters detailed in the complaint;

(g) ensures that, where there is a panel hearing of a complaint, one person will be independent of the management and running of the school;

(h) allows for the parents to attend and be accompanied at the panel hearing if they wish."

9

Again, the Parents accept that the School's complaints procedure did comply with those statutory requirements, but criticise the manner in which the procedure was operated in the circumstances of this case.

10

The guidance as to the welfare of pupils was at the material time provided by the Department for Education and Skills in its document "Safeguarding Children and Safer Recruitment in Education", which came into effect in January 2007 (again, it has subsequently been replaced by guidance given in 2010). This referred to the duty of local authorities, pursuant to s47 of the Children Act 1989, "to make child protection enquiries if they have reasonable cause to suspect a child in their area is suffering or is likely to suffer significant harm" – "harm" being defined by s31(9) of that Act as meaning "ill-treatment or the impairment of health or development". The guidance further provided (by paragraph 5.12) for local authorities to have designated officers to give advice and guidance to schools and to liaise with police and other agencies. As will be seen, the relevant local authority department was Hertfordshire Children Schools and Family ("CSF"), and the relevant officer was Jane Hardy.

11

The School's child protection policy included at paragraph 8 the following provision for dealing with reports that a member of staff was guilty of abuse of a child:

"The Headteacher will not investigate the allegation itself, or take written or detailed statements, but he/she will assess whether it is necessary to refer to Children, Schools and Families in consultation with the Child Protection School Liaison Officer or the Social Work Manager. If the Headteacher decides that the allegation warrants further action through Child Protection Procedures he/she must immediately make a referral … If it is decided that it is not necessary to refer to Children, Schools and Families the Headteacher will consider whether there needs to be an internal investigation."

12

The School also had a policy for individual needs, which provided amongst other things for pupils with special educational needs, defined as having "a learning difficulty that calls for special educational provision to be made for them". One of the objectives of the policy was "to ensure that all pupils with Special Educational and other particular needs receive the support they need to become independent learners who work alongside their peers, achieving their full academic potential". The policy went on to provide that...

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