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Following an expedited rolled-up hearing the court refused permission to appeal from the judgment of Fordham J dismissing a claim for judicial review of a school’s decision to permanently exclude a pupil (R (RWU) v. Governing Body of an Academy [2025] EWCA Civ 147). The judgments consider for the first time the interaction between Article 4 of the European Convention on Human Rights (‘ECHR’) and the school exclusion regime, in the context of possible child criminal exploitation. The Black Equity Organisation intervened by way of written submissions in the Court of Appeal.
The claimant student was permanently excluded by the school’s Principal in January 2024 following a series of breaches of the school behaviour policy including finally an incident in which the claimant brought drugs and other prohibited items into school.
The governing body upheld that decision to exclude, however the governing body’s decision was itself quashed by an Independent Review Panel in May 2024. When the matter was reconsidered by the governing body in June 2024, it again upheld the Principal’s decision to permanently exclude.
The claimant’s application for judicial review of that reconsideration by the governing body was dismissed by Fordham J ([2024] EWHC 2828 (Admin)). In particular Fordham J emphasised the importance of considering the question whether any duty arose under Article 4 ECHR based on the information which was known or ought to have been to the school at the time of the decision in question, rather than by an exercise in hindsight relying on events which post-dated the decision to exclude. Subsequent events on which the claimant had sought to rely included his arrest in Doncaster in August 2024; a decision following this arrest by the local authority as designated first responder to make a referral to the National Referral Mechanism on the basis that the Claimant was a potential victim of child criminal exploitation; and a subsequent positive reasonable grounds decision on the basis of a reasonable suspicion that the claimant was a victim of human trafficking.
The claimant sought permission to appeal to the Court of Appeal on two grounds: first, that Fordham J had erred in finding that no Article 4 duty arose on the facts; second, that the governing body in its reconsideration in June 2024 had failed to give conscientious consideration in the context of the Article 4 protection duty.
The Court of Appeal refused permission on both grounds. The “trigger or threshold” test for the Article 4 duty in this context is “whether state authorities are aware or ought to be aware of circumstances giving rise to a credible suspicion that the child concerned has been trafficked or exploited or that there is a real and immediate risk of his being trafficked”; importantly, the duty does not arise simply because it can be shown that there is “a risk that permanent exclusion of a child will increase his vulnerability and the possibility that he might be drawn into further or more serious criminal activity” (at §43).
Fordham J’s analysis of the facts had been detailed and careful. The role of the appeal court was not to substitute its own view but to consider whether it was reasonably arguable that his finding was “wrong” (applying R (R) v. Chief Constable of Greater Manchester Police [2018] 1 WLR 4079 at §64 and R (DB) v. Chief Constable of Police Service for Northern Ireland [2017] UKSC 7 at §80), which it was not. In any event had the question been whether his finding was correct, the appeal court would have found that it was (at §44).
Giving the lead judgment Bean LJ further rejected the appellant’s submission that had the ‘credible suspicion’ threshold been crossed the school would have been automatically required to reinstate the claimant (at §45). It doubted whether the school exclusion process was in fact a “quasi-prosecutorial” process, as argued by the claimant, such as to engage the principles in VCL v. United Kingdom (2021) 73 EHRR 19. However, it accepted that this was a question “for another case and another day” (at §46).
Leon Glenister and Siân McGibbon appeared for the successful respondent academy, instructed by Christopher Jones of Stone King.
