High Court rejects judicial review over permanent exclusion for persistent breaches of school behaviour policy

A High Court judge has rejected a judicial review claim over a decision by a school governing body's disciplinary panel not to reinstate a teenage boy to his school following a permanent exclusion, which occurred as a result of “persistent breaches” of the school's behaviour policy.

In RWU, R (On the Application Of) v Governing Body of A Academy [2024] EWHC 2828 (Admin), following a rolled-up hearing, Fordham J rejected the claim on all four grounds, finding that the governors were entitled to find that the school’s principal used his power to exclude a pupil, “fairly, reasonably and as a last resort” in order to maintain a “safe learning environment” for all pupils.

The claimant, RWU, had started at the Academy in Year 7 in September 2020.

After the autumn half-term in Year 10 – and within a five-week period – he was suspended five times.

Reasons for his suspensions included swearing at a member of staff, arriving at school seemingly under the influence of drugs and being in possession of a lighter and a vape, and being involved in an incident outside of school, during the school day, and in school uniform, which resulted in the police bringing him to school.

The school’s Behaviour Policy explains that, at the point of a sixth suspension within a year, the Principal will consider permanent exclusion (PEX) for “persistent breaches” of the Behaviour Policy.

Mr Justice Fordham noted that the Academy made a MASH (Multi-Agency Support Hub) referral in late November 2023, after the incident which led to the third suspension.

MASH referrals are "safeguarding" referrals where a child is considered to be "at risk of harm". The referral was made by the Deputy Head of Year, due to the concerns regarding the claimant being brought by the police, his friendship group outside school, possible drug misuse and the claimant's parents finding it very difficult to manage his behaviour at home.

The school also set up a Pastoral Support Plan (PSP) - a structured and coordinated 16-week school intervention designed to support students at risk of PEX.

Following another incident in January 2024, the Principal made his decision to impose the PEX. In the decision letter he wrote:

“As we discussed when we met earlier today, [the Claimant] has been permanently excluded as a result of persistent breaches of the school's behaviour policy, such that allowing him to remain at [the Academy] would significantly risk harming the education and welfare of others at [the Academy].

“As you know, before today [the Claimant] had been suspended from the Academy five times this academic year. Today he unfortunately took the decision to bring a Class B drug onto the school site; an illegal act and clear violation of the schools behaviour policy. He was also in possession of a lighter, a vape, a grinder, tobacco, rizla and £250. As you are aware, due to the severity of this we have reported this matter to the police. As this behaviour would have led to a suspension, in line with the Academy's behaviour policy I took the decision to permanently exclude [the Claimant]. A full outline of the behaviour which led to this decision will be included in the Permanent Exclusion report.”

Fordham J went on to address two topics relevant to the judicial review claim – the first being Child Criminal Exploitation (CCE) – described in the Academy's Safeguarding Policy as “where an individual or group takes advantage of an imbalance of power to coerce, control, manipulate or deceive a child into any criminal activity in exchange for something the victim needs or wants, and/or for the financial or other advantage of the perpetrator or facilitator and/or through violence or the threat of violence.”

The second topic addressed by the judge was three visits by RWU to A&E, with injuries suspected by medics to be knife wounds, two knife-possession offences by the claimant, and an arrest which led to the local authority making a referral to the National Referral Mechanism (NRM) on the basis that the claimant was a potential victim of CCE.

The four stages of the PEX decision were outlined by the judge as follows:

• Stage 1: The Principal of the Academy decided to impose PEX
• Stage 2: The governing body's disciplinary panel (GDP) was convened and held a hearing in March 2024, deciding not to reinstate the Claimant.
• Stage 3: The Independent Review Panel (IRP) was convened and held a hearing, deciding to quash the GDP's non-reinstatement decision and direct reconsideration.
• Stage 4: The GDP reconvened, holding a further hearing on in June, and decided not to reinstate the Claimant.

The GDP's Stage 4 decision was the decision under review.

At the IRP hearing, the panel discussed whether the Principal and the governors had taken the claimant's vulnerability to child criminal exploitation enough into consideration and, in hearing the social worker's timeline and the school's understanding that his mother had concerns of peers and not others, accepted that the school had taken child criminal exploitation into consideration at the time when the Principal made his decision and by the governors at the GDC.

The judge said: “The IRP found there was not enough curiosity around [the Claimant]'s background, needs and circumstances from the governors which would have enabled them to come to a reasonable conclusion on [the Claimant]'s needs and whether they had been fully met.

“The Panel were satisfied that the governing board did not rely on irrelevant points but found that the governors failed to take account of all relevant points and in doing so made a decision so unreasonable that no governing board, acting reasonably in such circumstance would have made.”

The GDP reconsideration hearing was convened in June. The GDP was comprised of the chair of Governors and one of the Governors who had been on the GDP previously, and a Governor who had not; assisted by a clerk and a note taker.

The judge said: “In order to assist an understanding of the grounds for judicial review and my analysis of them, I will set out GDP Stage (4) decision letter written to the Claimant's parents:

“The governors gave lengthy and careful consideration to the IRP's direction but concluded to uphold their original decision. As such, they agreed that [the Claimant] should not be reinstated to the Academy. The reasons for the governors' decision are set out below.

“In coming to their decision, the governors considered additional information which was not available to them during the original governors' review meeting, and which the IRP felt could have and should have been available. The additional information included: [the Claimant]'s PSP (Pastoral Support Plan); notes from suspension reintegration meetings; additional statements from previous suspensions and the exclusion; relevant information from CPOMS (Child Protection Online Monitoring System); additional information from [the Principal] on the exclusion variation rates in the Academy; and copies of all relevant Academy policies.

“[…] The governors reviewed [the Claimant]'s PSP, the notes from some suspension reintegration meetings, and some additional information from CPOM, and they were satisfied that Academy staff had made considerable efforts to provide [the Claimant] with support to improve his behaviour. However, it was [the family's advocate's] view that although the Academy may may have put certain support interventions in place, they were not given adequate time to have an impact before [the Claimant] was excluded.

“The governors discussed [the family's advocate's] submission at length but felt that the timing of [the Claimant]'s exclusion was not chosen by academy staff; it was ultimately dictated by [the Claimant] bringing drugs onto the Academy site. The governors felt that this final incident was a serious breach of the Academy's Behaviour Policy, and in light of [the Claimant]'s previous misconduct, it was not unreasonable for [the Principal] to issue the exclusion.”

The grounds for judicial review were split into the Article 4 "positive obligation" ground of review, and the "lawful reconsideration" grounds of review.

Outlining the Article 4 “positive obligation” ground of review, the judge said the issues were:

1. whether the governing body's disciplinary panel failed to construe the PEX test compatibly with the Article 4 positive obligation, because;
2. there were clear indicators that the claimant was at risk of harm from CCE.

Mr Justice Fordham said: “The first step is a legal point about the relevance, to a PEX decision, of the Article 4 positive obligation. This was the essence of Ms Braganza KC's submissions [on behalf of the claimant].”

He continued: “By virtue of s.6 of the Human Rights Act (HRA) (read with ECHR Article 4), relevant UK public authorities owe a positive obligation to take appropriate measures within the scope of their powers to protect an identified individual in respect of whom they are aware, or ought to be aware, of circumstances giving rise to a credible suspicion of a real and immediate risk of having been, or being, trafficked or exploited. […] This is an important protection duty. Where the circumstances are such as to trigger the protection duty, it could not be lawful for a designated First Responder to refuse to make a referral to the NRM.

“True it is that the Principal and the GDP are not designated First Responders. But they are relevant public authorities with a role to play. Where the Article 4 protective duty is triggered in relation to a pupil facing PEX, that does not necessarily mean that PEX is unlawful or unreasonable as a response. It is the state as a whole which has to protect. But a Principal, and a GDP, need to recognise the duty and consider it. Especially because of the importance of school as a protective environment for a person vulnerable to modern slavery including CCE.”

Analysing the submissions, Fordham J concluded: “Neither the local authority nor the police considered that a CCE positive obligation threshold had been crossed. Nor did they think it was crossed when the GDP was first dealing with the case; nor when the IDP was dealing with the case; and nor when it was back in front of the GDP. Neither the local authority nor the police told the Academy that the duty was triggered. There was the MASH referral; and there was the local authority Child in Need Plan. SW1 knew more about the Claimant's circumstances than did the Academy.

“No NRM referral was made until [August 2024], after the impugned decision and after the particular red flag related to the ….arrest. To the police and local authority, that changed the picture and triggered action. Only by an impermissible exercise of hindsight – based on subsequent events – could it be concluded that an Article 4 positive protection duty arose at 18.1.24 or 24.6.24.

“There was, in my judgment, no Article 4 trigger requiring appropriate measures within the scope of public authority powers to protect the Claimant as a person in respect of whom the Academy ‘was aware, or ought to be aware’ of circumstances giving rise to ‘a credible suspicion of a real and immediate risk of having been, or being, trafficked or exploited’.”

He dismissed the Article 4 ground for judicial review.

Outlining the "lawful reconsideration" grounds of review, Mr Justice Fordham said: “The other three grounds for judicial review are linked points about the nature of the reconsideration undertaken by the GDP, reflected in its reasoned decision and the record of its deliberations, viewed against what in law was required of it. There are three topics.

• The first topic is about reconsideration after a quashing pursuant to s.51A(4)(c), as distinct from a recommendation (s.51A(4)(b)). Here, the agreed issues are whether the GDP made a mistake of fact that its prior decision had not been quashed; and, if so, whether such a mistake was a material mistake of fact, such that the GDP undertook an inadequate and circumscribed reconsideration. This has been a pleaded ground for judicial review from the start.
• The second topic is about Limb [ii] of the test for PEX (Guidance §11). Here, the agreed issue is whether the GDP misunderstood or misapplied the test of whether the Claimant remaining at the Academy would "seriously harm" the education or welfare of the pupil or others. This has been a pleaded ground for judicial review from the start.
• The third topic is about the description of reconsideration in the Guidance at §259. Here, the agreed issue – if permission to amend were granted – is whether the GDP misunderstood and misapplied §259 of the statutory guidance. This is the new ground for which I have granted permission to amend.”

The judge noted that the relevant decision-making involved four stages - governed by s.51A of the Education Act 2002; the School Discipline (Pupil Exclusions and Reviews) (England) Regulations 2012 (SI 2012/1033); and policy guidance issued by the Department for Education (September 2023) on Suspension and Permanent Exclusion from Maintained Schools, Academies and Pupil Referral Units in England (the "Guidance").

He said: “The Guidance provides that a PEX decision involves two limbs – which I will call Limb [i] and Limb [ii] – both of which need to be satisfied (§11):

“the decision to exclude a pupil permanently should only be taken [i] in response to a serious breach or persistent breaches of the school's behaviour policy; and [ii] where allowing the pupil to remain in school would seriously harm the education or welfare of the pupil or others such as staff or pupils in the school.”

Considering the first topic (reconsideration after quashing), Fordham J concluded: “The quashing by the IRP of the GDP's original non-reinstatement decision meant that the decision had been set aside and did not in law subsist as a lawful discharge of the GDP's statutory decision-making function. It meant that there needed to be a reconsideration ‘afresh’. The GDP would be reconsidering – afresh – whether the Principal's PEX decision was lawful, reasonable and procedurally fair.

“In the present case, there did not need to be a rehearing of all the evidence 'de novo', and there did not need to be a panel of three new individuals, as Ms Braganza KC [for the claimant] rightly accepts. Where there is a quashing, after a decision applying judicial review principles, what matters is for the GDP ‘to look afresh at the question of reinstating the pupil, in light of the findings of the IRP’, which is how the Guidance puts it (§264). What quashing does is to require reconsideration afresh.”

On the second topic (reconsideration and Limb (ii)), the judge noted: “The GDP was not reconsidering afresh the Principal's decision to impose PEX. It was reconsidering afresh the lawfulness, reasonableness and procedural fairness of the Principal's decision.

“The GDP was also addressing the principal points being made on behalf of the family at the hearing. The family's representative was able to put questions to the Principal, and it was open to the family to contend that there was no serious harm, or that ‘deference’ to the Principal's view about serious harm was wrong.”

He added: “The decision letter needs to be read in context, and written to an informed audience. The test for PEX, including Limb [ii], had been set out expressly in the original PEX decision letter…. It was also set out expressly by the Principal in his opening oral statement at the GDP reconsideration hearing, it having also been set out expressly at the beginning of his report for that hearing…... In the decision letter, the Principal had said that the claimant's PEX was as a result of persistent breaches by the claimant of the school's Behaviour Policy:

… such that allowing him to remain at [the Academy] would significantly risk harming the education and welfare of others at [the Academy].”

The judge noted that in the record of discussion, the Chair said that "the strongest part" of the Principal's submission was that the claimant's behaviour "would affect the wellbeing of the other students".

 The decision letter said:

“In conclusion, it is a principal's first priority and duty to create and maintain a safe learning environment with high standards for all pupils to thrive, achieve and enjoy. To this end, the government gives headteachers the power to exclude a pupil from school on disciplinary grounds. The governors are satisfied that, having considered and reconsidered [the Claimant's] exclusion, [the Principal] has used this power fairly, reasonably and as a last resort.”

The judge concluded: “The GDP was addressing Limb [ii] and, in the ‘deference’ to the Principal, was asking the substantive questions about lawfulness and reasonableness, in the context of an exercise of ‘professional judgement’ (Guidance §16). Again, I have focused on the substance, in the decision letter, and in the contemporaneous record of discussion. There was in my judgment no public law error as to reconsideration and Limb [ii].”

On the last topic (Reconsideration and Guidance §259), counsel for the claimant said the Guidance at §259, embodied within the IRP's decision document, required that the GDP "conscientiously reconsidered" reinstatement and that it had a "strong justification" for any decision not to reinstate.

Counsel submitted that the key concerns which had been raised were “not analysed, not probed, not bottomed out and not put to bed”.

Rejecting the submission, the judge found that the governing body's disciplinary panel thought about the deficiencies in relevant information which had been exposed by the IRP and addressed by the provision of that information; and the GDP thought about the key points that had been raised on behalf of the family. He found no public law error as to reconsideration and Guidance §259.

Concluding the case, the judge rejected all four grounds for judicial review, and refused permission to appeal.

Lottie Winson