Judges reject appeal over whether protective duty had arisen in school exclusion case where pupil was vulnerable to child criminal exploitation

The Court of Appeal has rejected an appeal over a High Court judge’s finding that the protective duty under Article 4 of the European Court of Human Rights had not been triggered at the time when a governing body’s disciplinary panel decided not to reinstate a pupil following his permanent exclusion.

The 15-year-old boy had originally been permanently excluded in January 2024 for persistent breaches of the school’s behaviour policy. After an independent review panel quashed that decision, the disciplinary panel decided in June 2024 on reconsideration to uphold the principal’s decision.

In August 2024, however, the National Referral Mechanism made a positive reasonable grounds decision amid concerns that the boy was a potential victim of child criminal exploitation (CCE).

It was argued before Fordham J, amongst other things, that the school had a duty to protect the boy under Article 4 as there were indicators of CCE. It was also submitted that exclusion would further his exploitation.

The High Court judge suggested that CCE could be relevant to decisions on permanent exclusion, but it was not on the facts of this case.

Mr Justice Fordham said: “Only by an impermissible exercise of hindsight – based on subsequent events – could it be concluded that an Article 4 positive protection duty arose [in January 2024 or June 2024].”

An appeal against this ruling was heard on an urgent basis earlier this month (6 February).

Lord Justice Bean noted that the critical issue in dispute below was whether an Article 4 positive protection duty had been triggered, either by the time of the permanent exclusion decision of 18 January 2024 or by the time of the impugned disciplinary panel decision of 24 June 2024.

Dismissing the appeal, Lord Justice Bean said: “There is now no dispute in this case that the trigger or threshold test for identifying a case of potential child criminal exploitation, derived from the decision of the Strasbourg court in Rantsev v Cyprus and Russia and applied by this court in the TDT case, is whether the state authorities are aware or ought to be aware of circumstances giving rise to a credible suspicion that the child concerned has been trafficked or exploited or that there is a real and immediate risk of his being trafficked.

“It is not sufficient to show, in the case of a school, a risk that permanent exclusion of a child will increase his vulnerability and the possibility that he might be drawn into further or more serious criminal activity.”

The Court of Appeal judge said that Fordham J had examined the facts “in detail and with great care”.

Lord Justice Bean continued: “Even if the question for us were simply whether his finding [that the Article 4 protective duty was not triggered in this case] was correct, I would hold that it was. But the matter is put beyond doubt by the observations of Lord Carnwath and Lord Kerr in the two Supreme Court cases cited above [R (R) v Chief Constable of Greater Manchester Police [2018] 1 WLR 4079 and R (DB) v Chief Constable of Police Service of Northern Ireland [2017] UKSC 7 respectively]. It is not reasonably arguable that the finding of fact by Fordham J was "wrong". Despite the elaborate arguments addressed to us, I would accordingly refuse permission to appeal on both [grounds].”

The Court of Appeal judge said this made it unnecessary to consider what the proper approach would have been if the credible suspicion threshold had been crossed by 24 June 2024.

He said: “I would only add two comments. Firstly, I do not accept that, even if the credible suspicion threshold had been crossed, the school would have been automatically required to reinstate the Claimant…..

“Secondly, I have serious doubts about [counsel for the appellant’s] argument, based on VCL v United Kingdom, that in making or reconsidering a decision to exclude a pupil permanently a school, or its head teacher or principal, is exercising a quasi-prosecutorial function, or that there is any real analogy with the criminal law. But these are questions for another case and another day.”

In his ruling Lord Justice Bean acknowledged that additional witness statements provided by interveners Coram and the Black Equity Organisation had spoken “powerfully of the severe impact which a permanent exclusion has on the child concerned, depriving him of the protective environment of the school and making him potentially more vulnerable to exploitation by criminal gangs".

He added: “For my part I would readily accept what they say. But these factors are inherent in the balancing exercise laid down in the various policy documents we were shown. Excluding the child may well be harmful to his life chances and increase his vulnerability, which is why permanent exclusion should be a last resort; but allowing him to remain at or return to the school may create a serious risk to the welfare of other pupils and the staff.”

Since this was an application for permission to appeal against the published judgment of Fordham J, and the Court of Appeal had heard full argument, Lord Justice Bean gave permission for this judgment to be cited.

Lord Justice Jeremy Baker and Lord Justice Holgate agreed.