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Mandatory off site schooling other than by statutory exclusion

A recent High Court case considered whether schools and local authorities can mandate that a child – against the wishes of the child's parents – must attend off-site education at another school. Jonathan Auburn QC analyses the ruling.

There may be many reasons why a school wishes to keep a pupil away from the school site for a period other than by imposition of a formal exclusion under section 51A of the Education Act 2002. For example, there may be significant tensions between groups of pupils, driven for example by gang affiliations, leading the school to consider it necessary to keep the children apart. Or a pupil may be the alleged victim of a wrong perpetrated by other pupils, and needs to be kept safe from those other pupils (cf R (G) v Westminster CC [2004] EWCA Civ 45, at §48 per Lord Phillips MR). Or a school may consider it inappropriate to permanently exclude a pupil, but nonetheless decide that the pupil cannot be in the proximity of another pupil or pupils who have made serious allegations.

What powers does a school or local authority have in such situations, to keep children apart for a period of time, outside the statutory regime for exclusions? That issue was examined in detail, and answered, in the recent judgment in R (o.a.o. CHF and CHM) v Headteacher and Governors of Newick CE Primary School and East Sussex CC [2021] EWHC 2512 (Admin).

The case involved allegations of sexual violence made by two young girls, against a young boy in the same class. The allegations were of a particularly serious nature. The school was small single form entry primary school. This made physical separation of the children on the same school site impossible. The school, after taking advice, decided against permanent exclusion of the alleged offending child, but nonetheless wished to have the children separated. The school achieved this by first issuing a notice pursuant to section 29A of the Education Act 202, requiring the child to attend at the site of another school to receive his education, although he was not excluded, and still on the register of the first school.

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The school and local authority then recognised that section 29A was not an appropriate power to use, as this related to measures to improve behaviour, whereas here the reason for the decision was one of safeguarding the complainant young girls. The section 29A notice was withdrawn, and the local authority issued a notice, expressed to be made pursuant to section 19 of the Education Act 1996, requiring the same result, namely the attendance of the alleged perpetrator at the site of another school to receive his education.

The parents of the child to whom these notices were imposed issued a claim for judicial review. Permission was granted only on issues relating to the legal basis upon which the child was being kept away from Newick, the school he was registered at, and which his parents still insisted he should be physically attending. Following the grant of permission, the school made a decision to permanently exclude the child pursuant to section 51A of the 2002 Act.

The judicial review claim was continued notwithstanding that issue of the school’s authority to keep the pupil away from Newick had moved on considerably, as a result of the decision to permanently exclude him.

Fordham J held that the school and local authority had indeed had power to mandate that the pupil be educated at the site of another school, as a “safeguarding separation”. He held that they had this power from a combination of sources. First, by section 175 of the Education Act 2002, local authorities and school governing bodies are required to make arrangements for ensuring that their education functions are exercised with a view to safeguarding and promoting the welfare of children. Parliament intended section 175 to be read with detailed guidance. That is found in the DfE’s ongoing guidance, “Keeping Children Safe in Education”. That contains detailed guidance on the issue of keeping children separate where circumstances require that for their welfare, such as where allegations of sexual violence have been made.

Secondly, maintained schools have important “general case management powers” regarding the conduct of their school. These general case management powers are interwoven into the section 175 duties, and informed by the statutory guidance (ie the DfE’s Keeping Children Safe in Education).

Thirdly, where this leads to a pupil not attending for a period at the site of the school they are registered at, the local authority has the power, by section 19 of the Education Act 1996, to fill the gap in their education, by making arrangements for the provision of suitable education.

Fourthly, the judge held general public law principles would apply as constraints on the exercise of such powers to impose a "safeguarding separation". The judge discussed the nature of those principles at paragraph 34.

The judge did not make any finding as to the extent to which the actions taken by Newick and East Sussex had been taken lawfully. The grant of permission had been a focussed one, had been overtaken by the permanent exclusion decision, and so the judge restricted himself to only answering the point of principle as to the legal basis for the school and local authority’s actions.

The case explains the way forward in an area which has often troubled schools, local authorities, and those advising pupils and parents. There are many issues left to work through, including the scope of application of this “safeguarding separation” principle, the nature and content of the public law limits on exercise of the power, and the relationship between schools and local authorities in the management of such situations, particularly where so many publicly funded schools are now not maintained by local authorities.

Jonathan Auburn QC of 11KBW acted for the school and local authority in the Newick case.

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