Permanent exclusion of a child at safeguarding risk (High Court decision)

In a November 2024 case, the High Court considered the level of review which should be conducted by a school’s governing body disciplinary panel (“GDP”) in the context of permanent exclusion.

In the matter of R (RWU) v Governing Body of A Academy and another (2024), an academy trust permanently excluded a pupil following persistent breaches of the school’s behaviour policy and where there was a risk of harming the education and welfare of others at the school.

The GDP ultimately decided not to reinstate the pupil, before an independent review panel quashed the reinstatement decision as the GDP had failed to take account of all relevant points. When it reconvened, the GDP again decided not to reinstate the pupil and judicial review proceedings were commenced against the GDP’s second decision on the grounds of:

• Article 4 of the European Convention of Humam Rights (“ECHR”), which creates a positive obligation to take appropriate measures to protect a pupil where the school was or should have been aware of a credible suspicion of real and immediate risk of them being trafficked or exploited
• The “lawful reconsideration” grounds of review.

In terms of the relevance of Article 4 ECHR, the school was aware that the pupil was at risk of child criminal exploitation and had made a Multi-Agency Support Hub (“MASH”) referral when it decided to permanently exclude the pupil.

The court considered that, where the Article 4 duty is triggered in relation to a pupil facing permanent exclusion, that does not necessarily mean that permanent exclusion is unlawful or unreasonable. However, the Headteacher and the 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 child criminal exploitation”.

Whilst a MASH referral had been made, the GDP’s reconsideration decision preceded a National Referral Mechanism referral by the local authority based on the exploitation risk following the pupil being arrested. The court found that an Article 4 positive protection duty only arose after the NRM referral, and accordingly the GDP’s decision was not made incompatibly with Article 4.

In terms of the second ground of review, relating to lawful reconsideration, the court considered:

• Whether the GDP was mistaken in considering that its prior decision had not been quashed, and whether such a mistake was a material mistake of fact, such that the GDP undertook an inadequate and circumscribed reconsideration
• Whether the GDP misunderstood or misapplied the test of whether the pupil remaining at the school would “seriously harm” the education or welfare of the pupil or others
• Whether the GDP had failed by not conscientiously reconsidering reinstatement and having a “strong justification” for any decision not to reinstate.

Schools will be aware that the decision to permanently exclude a pupil is reliant on two grounds, being that there has been a serious breach or persistent breaches of the school’s behaviour policy, and 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.

The court clarified that, when the GDPs original decision not to reinstate the pupil was quashed, the effect was that that decision of the GDP had been “set aside”. This means that there must be a fresh reconsideration as to whether the decision of the Headteacher to permanently exclude the pupil was lawful, reasonable and procedurally fair. However, there did not need to be a rehearing of all the evidence or a panel of three new individuals.

In terms of whether the GDP had misunderstood or misapplied the test of whether the pupil remaining at the Academy would “seriously harm” the education or welfare of the pupil or others, the court considered that the GDP was not reconsidering afresh the Headteacher’s decision to impose a permanent exclusion. Rather, it was reconsidering the lawfulness, reasonableness and procedural fairness of the decision, as well as the points made on behalf of the pupil at the hearing in respect of whether there was serious harm.

The court noted that the test for permanent exclusions was set out in the Headteacher’s original permanent exclusion letter and was reiterated by the Headteacher at the GDP reconsideration hearing. It was also clear that the Headteacher had clearly set out that the pupil’s behaviour would affect the wellbeing of the other students. The court concluded that the GDP had not erred in its reconsideration.

Finally, the court considered whether the GDP had failed by not conscientiously reconsidering reinstatement and having a “strong justification” for any decision not to reinstate. The pupil’s family considered in this respect that key concerns had been raised in respect of the permanent exclusion, but the GDP had failed to analyse and probe them sufficiently. On this matter, the court concluded that the GDP had considered the “deficiencies” in relevant information which the IRP had flagged, and had considered the key points raised on behalf of the pupil.

Practical implication

Whilst the court in this instance rejected the grounds of claim in respect of the permanent exclusion, there are clear take aways for schools to implement when considering permanent exclusion of a child with safeguarding concerns.

Where a decision is made to permanently exclude a child who the school considers is a safeguarding risk, it is vital for the school to ensure that full and proper consideration of all circumstances surrounding the permanent exclusion, and the safeguarding context of the child, are fully considered and documented.

GDP’s should also be conscious of the timeline of events, and where a child who is a safeguarding concern has been permanently excluded, they should ensure to obtain an up-to-date picture of any and all referrals made to external agencies to ensure that such referrals form part of any decision made, at any stage of the permanent exclusion review process.

This case also highlights the importance of clear and contemporaneous notes being taken of decisions by the GDP; where concerns are raised in respect of the GDP’s decision-making process it is vital to be able to clearly demonstrate the considerations made, and the ultimate decision reached after a full consideration.