About this case:

• Citation:
  [2022] NIKB 1
• Judgment:
  External link
• Court:
  NI High Court
• Judge:
  Mr Justice David Scoffield

Background

The applicant, a girl commencing her Year 11 education, sought to challenge a June 2022 decision of the school’s board of governors, where they decided not to expel another student, Pupil C, following his intentional attack on the applicant.

In May 2022, while on school premises, Pupil C slide-tackled the girl from behind, dislocating her knee. The incident was captured on video, which showed that the applicant was completely unaware and had no chance to prepare herself for the impact.

She was taken to hospital and placed in a full leg cast. She missed seven weeks of school and required physiotherapy.

The applicant’s parents argued, and the court accepted, that the attack was likely intentional and premeditated, as it was being recorded. The judge noted that the incident was “a particularly nasty one”, however, the ultimate injury may not have been anticipated.

Pupil C was suspended that day.

The principal of the school indicated to the applicant’s parents that expulsion procedures would be commenced, that there would be a meeting of the board of governors, and that the applicant’s parents should attend to canvas for expulsion.

The decision

The applicant’s parents received a letter from the school principal on 25 May, which stated: “In acknowledging the serious psychological and physical harm to your daughter, the School will now invoke the expulsion process with the Education Authority.”

However, a further letter of 29 June 2022 stated:

The applicant complained that this correspondence did not include any explanation of the reasons for the decision not to expel, and failed to give any indication that the impact of the assault upon her was considered adequately, or at all, by the board.

There was also contention surrounding the validity of any remorse that had been shown by Pupil C.

Pupil C’s ‘behaviour contract’ includes two weeks with a specialist behaviour unit, and he and several other pupils had their timetables and classes arranged so that they would not interact with the applicant at school.

He was to have no contact with the applicant, and the applicant would be closely monitored at break and lunch times to ensure her safety.

The contract stated that: “If [Pupil C] breaks the Behaviour Contract, Governors have expressed that full expulsion procedures will be undertaken with the Education Authority.”

The arguments raised

The applicant’s parents welcomed the school’s new arrangements but argued that they were not sufficient, as Pupil C should have been expelled.

The grounds of challenge included illegality and error of law; failure to take material considerations into account; procedural unfairness, particularly by failure to engage with the applicant and her parents and a failure to provide reasons; irrationality; breach of Article 3 of the UNCRC; and breach of her Convention rights under Articles 3 and 8 ECHR.

In response, it was argued that the school had carefully considered all relevant matters and reached a decision which was within the range of reasonable responses available to it.

Each party relied to some degree on various aspects of the scheme for suspension and expulsion of pupils in controlled schools.

Consideration

The first ground that the court considered was illegality, and the judge found that this was not an arguable ground with a realistic prospect of success.

The court noted that the expulsion scheme in place was designed such that expulsion would arise only as a relatively rare sanction, and only after a range of alternative strategies had been tried without success.

The school had taken this guidance into account, and were not bound to expel the student in these circumstances.

The court emphasised that the meeting was convened to consider the impact of sanctions against Pupil C, as he was primarily at risk of being adversely affected by the decision-making process. This pre-expulsion procedure was not an adversarial process.

In relation to the next ground, of procedural unfairness, the applicant contended that the school had failed to give any reasons or explanation for its decision, which was “having a serious effect on the applicant’s well-being”.

Here, the court noted that there was no common law duty on the part of the school to give detailed reasons for its decision in this case. The relevant statutory scheme did not require this, and, in fact, emphasised the importance of confidentiality in the process.

This, the court found, pointed to a conclusion that no obligation to give detailed reasons to the applicant arose.

Further, the court found that the reasoning behind the board’s decision was “easily discernible”. They found that Pupil C should be given another chance, and should he breach his new behaviour contract it would be likely that he would face expulsion then.

The court was critical, however, of the school’s communication with the applicant and her parents, which was slow and unclear at times. If this had been better handled, then, “there is a much greater chance that the parties would not have found themselves in court”.

Conclusion

Ultimately, the court found that it was not irrational for the board to consider that, in light of the significant suspension period which Pupil C had served and the steps which could be taken to moderate his behaviour and protect the applicant, expulsion was not required at this point.

Although the court was not critical of the parents for bringing this action, the judge did note that, “issues of school discipline such as those raised by this case are, by and large, best left to the educational authorities who have the experience and expertise of dealing with them on a regular basis”.

The court went on to note that in this case two children’s futures were at stake, and both of their best interests had to be considered. In the absence of legal error, “it is not for the courts to seek to manage the maintenance of discipline in the classroom or playground”.