The Queen (on the application of CHF and CHM) v The Headteacher and Governors of Newick CE Primary School
| Jurisdiction | England & Wales |
| Judge | Mr Justice Fordham |
| Judgment Date | 17 September 2021 |
| Neutral Citation | [2021] EWHC 2513 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/2181/2020 |
[2021] EWHC 2513 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Fordham
Case No: CO/2181/2020
The Second Claimant appeared in person (assisted by a McKenzie Friend)
Jonathan Auburn QC (instructed by East Sussex Legal Services) for the Defendants
Hearing date: 27 th July 2021
Approved Judgment
THE HON. Mr Justice Fordham
Part 1: Introduction
This judicial review case arose out of disputed events involving three children who were each aged 6 and at primary school and, more specifically, out of the way in which the Defendants – “the School” and “the Local Authority” – responded. The case has raised questions of law including whether and what power schools and local authorities have to impose what I will call “Mandatory Off-Site Schooling” (see §3 below), other than by means of an “exclusion” decision by a headteacher pursuant to section 51A of the Education Act 2002 (“the 2002 Act”) or as a “behaviour-improvement” response by school governors pursuant to section 29A of the 2002 Act. The Defendants say there is power to impose Mandatory Off-Site Schooling by way of what I will call a “Safeguarding Separation” (see §4 below), which is what they say happened in this case. The Claimants say – among other things – that what really happened was an unlawful, backdoor exclusion. A key issue in this case involves identifying the appropriate scope for judicial determination in this case, in the light of two things. First, there was only ever limited permission for judicial review, which the Claimants have remained keen to expand. Secondly, the School made a post-permission section 51A exclusion decision, which the Defendants say renders all the issues academic and unsuitable for judicial determination. My task is to decide what to make of all of this.
Anonymity
When, on 27 July 2020, Linden J (“the Judge”) granted limited permission for judicial review, he made a direction for anonymity: ordering that the children in the case should be identified only by letters of the alphabet. The Claimants maintained, from the start, that all parents' names should also be anonymised. The Court of Appeal extended the anonymity order to cover the Claimants' names: [2021] EWCA Civ 613 at §33. I extended it, at the start of the substantive hearing, to cover the parents of the other children. There has been no application to anonymise the School, which remains identifiable (see [2021] EWCA Civ 613 at §24). There was at one time an application by the Claimants for a private hearing, but that application was wisely not pursued. The mode of hearing was an in-person, public hearing at the Royal Courts of Justice. I record that, informed that this is what had happened before DHCJ Smith and in the Court of Appeal, and there being no objection from the Defendants, I decided it would make better use of court time if the Claimants' McKenzie Friend (B's grandmother) spoke to me direct rather than in the ear of the Second Claimant who then repeated the content to me. That course was and is not intended to set any wider precedent. In response to this judgment in draft, the Claimants invited me to use the “oao” instead of “on the application of”, and “CHF and Others” instead of “CHF and CHM”, to fit with an Order of Warby LJ (3 March 2021). That was a provisional Order which lapsed according to its terms and, in any event, I am satisfied that the case heading is clear and appropriate.
“Mandatory Off-Site Schooling”
This phrase is my shorthand to mean action mandating that a child – against the wishes of the child's parents – must attend off-site education at another school. Two things can immediately be made clear. The first is that Mandatory Off-Site Schooling can be imposed – in an appropriate case, in an appropriate way and within certain parameters – by a headteacher as a “disciplinary” response, by means of an “exclusion” decision by the headteacher under section 51A, with applicable parameters, procedural rights and obligations, and a mechanism of independent review. The second is that Mandatory Off-Site Schooling can also be imposed – in an appropriate case, in an appropriate way and within certain parameters – by school governors as a “behaviour-improvement” response, under section 29A of the 2002 Act.
“Safeguarding Separation”
This phrase is my shorthand to mean action physically to separate school children from one another, which action is taken for the purpose of safeguarding the welfare of a relevant child or children. The idea of Safeguarding Separation is one which can be illustrated by reference to the Department for Education statutory guidance entitled “Keeping children safe in education” (September 2018 edition) (“the National KCSE Guidance”). It can also be illustrated by reference to the Local Authority's own “Protocol for Managing Peer on Peer Harmful Sexual Behaviour in Schools, Settings and Colleges” (December 2018 edition) (“the Local Protocol”). It is appropriate that I make clear that the 2018 editions to which I refer are the ones which were placed before the Court.
i) The National KCSE Guidance constitutes statutory guidance for the purposes of section 175(1) and (2) of the 2002 Act. That means schools and local authorities are under a legal obligation to have regard to the guidance, in the exercise of their statutory duty – imposed by Parliament by section 175 – of ensuring that education functions are exercised with a view to safeguarding and promoting the welfare of children who are pupils at a school.
ii) The National KCSE Guidance (see §35 below) describes the situation where there is a “report of sexual violence” and the issue of “children sharing a classroom”, describing what a school should do immediately while it “establishes the facts of the case and starts the process of liaising with children's social care and the police” (see pp.66–67). The Guidance, which makes clear that the school should consider “the proximity of the victim and alleged perpetrator and considerations regarding shared classes, sharing school … premises and school … transport”, says this of actions which keeps the children “apart”: “These actions are in the best interests of both children and should not be perceived to be a judgment on the guilt of the alleged perpetrator”. This is all explained in a context (see §252) where the school is concerned with the “welfare of a child” and acting “in the bests interests of the child”, and addressing “how best to support and protect the victim and the alleged perpetrator” as well as “any other children involved/impacted”. The Guidance later describes, in equivalent terms, the “ongoing considerations” after “next steps” have been “decided” (pp.73–74).
iii) The Local Protocol (see §36 below) provides detailed local guidance on how schools should respond to incidents of sexual harassment, sexual violence or harmful sexual behaviour as those terms are defined in the National KCSE Guidance (see §1.1). It describes risk management plans (§5.1, Apx 2) and multi-agency risk management meetings (§7). It speaks of “measures … which will reduce the likelihood of the children involved coming into contact” (§5.4) and “to ensure any potential contact between the child alleged to have displayed the behaviour and the child who was targeted is managed carefully” (§7.2), and cases where “the ongoing level of risk from the child who has displayed the behaviour to another child at school may be so great that it is not possible to manage the risks safely within the school environment” (Apx 2 §1.4).
An Introductory Overview
In this paragraph I will set out my own introductory overview of some of the events which took place, from which these legal proceedings have arisen. I do so in order to set the scene for my discussion of the shape of the case. I make clear that I am not here seeking to encapsulate all of the features or events which the parties would for their part, and from their different perspectives, wish to emphasise, or the descriptions which they would use.
i) The end of the summer term in the 2018/19 academic year at the School was Friday 19 July 2019. Three weeks before the end of term, on Friday 28 June 2019, words were spoken (“the Verbal Altercation”) between three pupils (alphabetically: B, O and P), said to have been overheard by a fourth (W). B was a 6 year old boy and the son of the Claimants. O, P and W were 6 year old girls. They were in the same class. The Verbal Altercation arose out of events during the autumn term 2018 (“the Autumn Events”).
ii) On Monday 1 July 2019 (which I will call “day 1”, using an equivalent shorthand for subsequent school days) the School's head teacher Natalie Alty (“the Headteacher”) made a referral to Children's Services at the Local Authority. The Local Authority convened a Strategy Meeting at 13:30 on Wednesday 3 July 2019 (day 3). Meanwhile, the Headteacher implemented an arrangement (from day 1) whereby B was removed from class and supervised individually on-site at the School. That arrangement continued until Friday 12 July 2019 (day 10).
iii) The Strategy Meeting (day 3) was chaired by Jo Elsey, Social Worker Manager within the Family Support Team (FST) at Lewes. It was attended by the Headteacher and others which, according to the documents, included Mandy Watson (Chair of the Governing Body at the School) (“the Chair of Governors”), Catherine Dooley of SLES (Standard and Learning Effectiveness Service at the Local Authority), Victoria Wells of ESBAS (the Education Support Behaviour and Attendance Service, part of Inclusion, Special Educational Needs and...
To continue reading
Request your trial
-
Safeguarding ' Directing Pupils Off Site
...decision of the High Court in CHF and CHM (Children), R (On the Application Of) v Newick Ce Primary School & Anor [2021] EWHC 2513 (Admin) highlights the difficulties around the use of the power contained in section 29A of the Education Act 2002 that maintained schools have to direct childr......
-
Safeguarding ' Directing Pupils Off Site
...decision of the High Court in CHF and CHM (Children), R (On the Application Of) v Newick Ce Primary School & Anor [2021] EWHC 2513 (Admin) highlights the difficulties around the use of the power contained in section 29A of the Education Act 2002 that maintained schools have to direct childr......