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Mr Justice Fordham has dismissed a judicial review challenge to a school’s decision to permanently exclude a pupil, with the Court considering for the first time the extent to which possible child criminal exploitation (CCE) can be relevant to a permanent exclusion (R (RWU) v A Governing Body [2024] EWHC 2828 (Admin)).
The child, RWU, was permanently excluded by the school’s Principal in January 2024. The governing body upheld that decision, however the governing body’s decision was quashed by an Independent Review Panel. When the matter was reconsidered by the governing body in June 2024, it again upheld the Principal’s decision to permanently exclude. This latter decision was under challenge.
CCE
Among the grounds of challenge was an assertion that the school did not comply with article 4 of the European Convention on Human Rights, and in particular the “protection duty”. It was argued by the Claimant the school should have interpreted the test for exclusion more strictly because there were indicators that the child was victim to CCE.
The Court rejected the argument that CCE required the test for exclusion as set out in the statutory guidance to be interpreted differently, but that in a particular case possible CCE could be a relevant consideration (paragraphs 59-61)
However, that did not apply here on the facts. Whilst the child had, subsequent to the decision under challenge, been referred to the National Referral Mechanism by the local authority, the Court was clear that it had to consider matters as at the time the governing body made its decision and could not look with hindsight (Judgment 52-55, 63-66).
Two points were raised by the case but not determined.
First, there was an issue of whether the governing body in June 2024 could (or was required to) consider matters which occurred since the Principal’s decision, or whether it was conducting a review of the Principal’s decision at the time it was taken (Judgment paragraphs 19, 32-34). This did not have to be determined because the Court did not find any of the intervening events were material.
Second, where a school considers but does not conclude there is a risk of CCE, whether the Court reviews the rationality of the school’s decision, or determines the question itself. The Court proceeded on the basis it determined the question itself, but explicitly did not determine the point (paragraph 62).
Conscientious consideration
The Claimant also challenged the governing body decision on the basis it failed to comply with the statutory guidance:
“259. It is important that the governing board conscientiously reconsiders whether the pupil should be reinstated, whether the panel has directed or merely recommended it to do so. Whilst the governing board may still reach the same conclusion as it first did, it may face challenge in the courts if it refuses to reinstate the pupil, without strong justification.”
The Court dismissed this, finding that consideration afresh in accordance with public law standards can sensibly be described as “conscientious”. There is no further requirement imposed of there needing to be a “strong justification” (paragraph 79).
Other points
The Claimant also challenged the governing body’s decision (a) on the basis it was not taken afresh, disregarding the quashed decision of the governing body, and (b) it failed to apply the test for exclusion correctly. Each of these grounds was dismissed.
Of note the Court explained that whilst particular contextual factors in an exclusion may point in favour of a relatively exacting intensity of review, equally at the heart of an exclusion is an evaluative decision by the Principal. None of this means the Court adopts a “legalistic, technical or nit-picking approach” to the expression of reasons in the decision letter (paragraphs 57-58).
Leon Glenister appeared for the Defendant academy, instructed by Christopher Jones of Stone King.
