Is It Ever Correct To Exclude A Child From School?
With recent press coverage surrounding the somewhat controversial exclusion of children, is it ever correct to exclude a child from school?
The law does allow a Headteacher to exclude a child in certain prescribed circumstances.
The law and relevant guidance makes it clear that a decision to exclude a child should only be taken as a last resort, especially if that child has additional needs.
A decision to exclude a child permanently should only be taken;
- in response to a series of breaches of the school’s behaviour policy and
- if allowing the pupil to remain in school would seriously harm the education or welfare of the other pupils in the school or that pupil.
Before excluding a child, the Headteacher should also consider whether an exclusion is a proportionate response to the issues. There may be other things that the school could have done to avoid the need to permanently exclude such as considering a managed move.
From January 2015, the above ‘and’ is set to change to an ‘or’ making it much easier for Headteachers to satisfy the necessary legal tests.
Challenging a Decision To Permanently Exclude
If you disagree with a Headteacher’s decision to permanently exclude your child, you have a right to appeal to the school governors. If they choose to uphold the exclusion then you have a further right to review by an Independent Review Panel (IRP).
The IRP should consider whether the governors dealt with the appeal lawfully (as set out above).
The IRP has the power to:
- Uphold the exclusion decision
- Recommend that the governing body reconsiders their decision, or
- Quash the decision and direct that the governing body considers the exclusion again.
If the IRP uphold a decision to exclude, it can be difficult to challenge further. Your only ability to challenge an IRP decision, from a legal prospective, is by way of judicial review. Judicial review proceedings are High Court proceedings that can find that the IRP acted unlawfully and direct for the case to be considered again. It would be wise to seek advice from a specialist solicitor on the prospects of successfully taking judicial review action in these circumstances. Judicial review is rarely appropriate but when it is appropriate, action must be taken quickly. The deadline for judicial review action is a maximum of 3 months from the date of the unlawful decision but in reality, action should be taken more quickly than this.
The future changes to the relevant statutory guidance may have a particular adverse impact on those with additional needs in that their needs (depending on their nature and extent of those needs) may result in circumstances in which they can be seen to be a risk of ‘serious harm to the education or welfare of the other pupils in the school or that pupil’ without the child actually committing a serious breach of the school’s behaviour policy which would be required currently.
If you consider that your child has been discriminated against by the school (either through exclusion or otherwise), then you should also consider taking a claim in the Special Educational Needs and Disability (SEND) Tribunal. Any such claim must be made within a maximum of 6 months from the date of the discrimination. If you choose to pursue an appeal to the IRP in addition to making a claim to the tribunal then the tribunal will ‘stay’ (put on hold) the proceedings pending the outcome of the IRP. One of the significant differences between the powers of the IRP and the tribunal is that the tribunal will order reinstatement if they consider it appropriate to do so. The tribunal cannot award monetary compensation even if they do find that there has been discrimination.
The law surrounding exclusions and school discipline is subject to continued change. If you are concerned over your child’s exclusion, it is best to seek legal advice sooner rather than later.
You may also wish to seek advice on your child’s right to interim education in addition to their right to be admitted to another school, as we hear a number of myths surrounding such subjects.