Academy defeats High Court legal challenge to permanent exclusion

CM had brought the judicial review of the independent review panel of PQR Academy Trust through her grandmother and litigation friend CY.

Rory Dunlop KC heard the panel had permanently excluded CM after multiple incidents of bad behaviour, in one of which a teacher had been pushed into door.

The court heard CM was born in 2009 and lived with her grandmother under a Special Guardianship order.

She moved to the - anonymised - PQR Academy in year 6 having earlier had a period in local authority care.

During November and December 2021, CM began to receive an increasing number of ‘serious breach’ sanctions for refusing to follow teachers' instructions, and rudeness towards staff. She also received warnings for failing to attend detentions.

This pattern of misbehaviour continued despite attempts at support and a short spell at another school, AA Academy.

In September 2022, she entered a classroom, was rude to teacher Ms B, refused to follow instructions to leave and attempted to push the teacher out of the room by pushing the door into her.

Two days later, CM was disruptive during another lesson. She again tried to enter a classroom where Ms B was teaching, eventually leaving but telling her: “You're an idiot. you don't know what you're talking about. You need to sort yourself out”.

In November 2022, the academy said it could not meet CM's needs and should not be named as the placement in her Education, Health and Care Plan at Section I.

After a short and unsuccessful spell at AA, CM returned to PQR which in March 2023 wrote to her grandmother to confirm CM's permanent exclusion for “persistent breaches of the behaviour policy throughout Years 7 and 8”.

The following month, the First Tier Tribunal rejected discrimination claims brought on CM's behalf. It accepted she was disabled, by reason of her difficulties in regulating her emotions, with a causal connection to some of her behaviours.

But it found the fixed term exclusions challenged at the time were a proportionate means of achieving a legitimate aim and said the incidents involving Ms B were “extremely serious, involved defiance as well as disrespectful and physically/verbally challenging behaviour”.

CM filed the claim for judicial review in October 2023, with only one ground eventually pursued, for misapplication of the duties under Article 4 ECHR and the Modern Slavery Act 2015.

She contended the academy trust made an error of law in concluding it complied with its duties under Article 4 ECHR (prohibition of slavery and forced labour) when it permanently excluded her.

Mr Dunlop said that in the intervening time there had been caselaw clarifying what Article 4 ECHR adds in the context of school exclusion from Fordham J in R (RWU) v A Governing Body of A Academy and London Borough of Southwark [2024] EWHC 2828 (Admin).

He said the principles that emerged from Fordham J’s judgment included that if there is a real and immediate risk of that child being trafficked or so exploited, that is a relevant factor in decisions on permanent exclusion and that the court can decide whether the school should have been aware of this.

It was not sufficient that permanent exclusion of a child would increase vulnerability and the possibility of being drawn into more serious criminal activity and it did not follow that a school would be prevented in any of these circumstances from permanently excluding a child.

Mr Dunlop said: “I find it difficult to conceive of a case where permanent exclusion, which is consistent with the guidance and therefore genuinely a measure of last resort, would be prohibited by Article 4 ECHR.

“The Article 4 ECHR protective obligation is to take 'appropriate steps'. It is difficult to see how it would be an 'appropriate step', under Article 4 ECHR, to keep a child in a school where that would ‘seriously harm the education or welfare of the pupils or staff in the school’ (the test under the guidance). That is particularly so given that Article 4 ECHR is an obligation owed by the state, not just by an individual school and an individual school is entitled to expect the local authority to meet any obligations it has to provide alternative education for a child that has been permanently excluded.”

He concluded: “There was not at any material time an Article 4 protective obligation in relation to the claimant.

“There never was credible suspicion of a real and immediate risk that the claimant would suffer treatment contrary to Article 4 ECHR. It became clear, during oral argument, that the relevant risk, in this case, was the risk of the claimant being recruited to participate in 'county lines' drug trafficking.

“There was no evidence, before any of the decision-makers, that the claimant had been recruited or was close to being recruited into 'county lines' drug trafficking.”

Mr Dunlop said there was evidence that CM was sexually assaulted by older male pupils at PQR and AA, but “there is no evidence before me that either of these alleged assaults had anything to do with 'county lines' recruitment”.

He said: “Neither Article 4 ECHR nor the Modern Slavery Act 2015 were mandatory relevant considerations on the facts of this case. Any failure on the [panel’s] part to address or apply the law under Article 4 ECHR was not material.”

Mark Smulian