"A pupil(TM)s disciplinary exclusion from school amounts to a clear denial of the child(TM)s right to education. Discuss.

“A pupil’s disciplinary exclusion from school amounts to a clear denial of the child’s right to education.” Discuss.

The right to education has been recognised and established in both international and domestic law. Exclusion is a contentious issue as it can endanger and disrupt this fundamental right for the often very vulnerable and troubled child. However, in considering whether exclusion leads to a true denial of that child’s right to education we must examine both the process of exclusion and the provision of education provided to children following exclusion. We must also consider the extent to which allowing a disruptive child to remain in the classroom might infringe upon the right to education held by all other pupils. Essentially there is often a conflict of rights and interests in exclusion cases; an appropriate balance must be struck between them.

This essay will establish the source of the right to education and consider its strength in UK law. The provision of education for excluded children will then be examined, with a focus on the exclusion process and alternative provision. I will consider whether the right to education can actually be said to be infringed by exclusion, and if it can be, whether such infringement is a necessary measure in protecting the rights of others.

A Right to Education:

Education has been recognised as a basic human right in various sources of international law. In the Universal Declaration of Human Rights, Article 26(1) states that ‘Everyone has the right to education’. Article 28(1) of the UN Convention on the Rights of the Child similarly provides for such a right. The European Convention on Human Rights, which was given effect in the UK by the Human Rights Act 1998, also contains an important protection in Article 2 Protocol 1 (A2P1) which states that ‘No-one shall be denied the right to education’. Harris notes that there are two fundamental principles which underlie these international treaties; universality and equality of access (Harris, 2007, p.37). In Kjeldsen, Busk Madsen and Pedersen v. Denmark [1976] it was also held that A2P1 can work with several other convention rights including Article 8, respect for private and family life.

The Education Act 1996 is the primary source of domestic legislation in which the right to education is assured. Section 13(1) holds that all Local Education Authorities (LEAs) must secure that ‘efficient primary education, secondary education and further education are available to meet the needs of the population of their area’. Section 13A(1) states that LEAs must do this with a view to promoting high standards and ensuring fair access to education. Most importantly here, section 19(1) of the 1996 Act, as amended by the Education Act 1997 section 47, states that all LEAs must arrange suitable alternative provision for excluded children of compulsory school age. ‘Suitable’, in section 19(6) means ‘efficient education suitable to his age, ability and aptitude’. Section 47 of the 1997 Act also states that LEAs must ‘have regard to’ guidance issued by the Secretary of State concerning exclusion and alternative provision; this effectively means that whilst guidance does not have the legal standing of statute, a departure from it will need to be justified with good reasons. As will be demonstrated, guidance is extensive and seeks to protect excluded children’s right to education and promote good practice in this area. Under domestic law therefore, children have a right to education whether this is in the mainstream setting or by the arrangement of alternative provision.

It is clear from this body of legislation that at least in theory, the right to education for all children, whether excluded or not, is protected in law. However this right can be demonstrated to be a relatively weak one in both the international and domestic context. Focussing on the strength of the international treaties, as Mountfield notes, the ‘right not to be denied an education contained in the convention [ECHR] is a limited and cautious right’ (Mountfield, 2000, p.146). The Belgium Linguistics (No.2) [1968] case demonstrates its relatively narrow context. Here it was held that the applicants, French speaking Belgians, had no right to education in a specific language; the protocol was held to guarantee access to education but not to protect a right to a particular form of education. The right to education can therefore not be seen as absolute as states necessarily must be able to fulfil this right with regard to economic efficiency. In addition, the UK has entered a reservation to A2P1; the second sentence, which holds that the State must respect and ensure that provided education is in conformity with parents’ religious and philosophical convictions, is accepted only in so far as is compatible with the provision of efficient education and the avoidance of unreasonable public expenditure. This reservation again serves to demonstrate the importance of resource constraints in the fulfilment of this right and the allocation of educational provision. Resource constraints are particularly important here as alternative provision is often very costly. Nonetheless, it is noted by Mountfield that the right to education still remains in that it should never be restricted in such as way to ‘injure the substance of the right nor conflict with other rights in the convention’ (Mountfield, 2000, p.146).

A Right to Education for the Excluded:

It is in circumstances such as exclusion that the right to education is in jeopardy and in need of effective protection. How does this relatively weak right hold for those most in need of it, and what of the educational rights of all other children?

This is a preview of the whole essay

A Right to Education for the Excluded:

We have seen that legislation places a duty upon LEAs to provide alternative provision for excluded children, and that LEAs and schools must ‘have regard’ to guidance from the Secretary of State regarding this duty. The latest guidance, issued in September 2008 entitled Improving Behaviour and Attendance: Guidance on Exclusions from Schools and Pupil Referral Units, recognises the serious implications of exclusion upon the child and the importance of ‘effective policies, procedures and training’ to minimise the number of pupils at risk and subject to exclusion (paragraph 1). As Sutherland notes, the 2007 version of this guidance introduces a fundamental change in the requirements for imposing permanent and fixed period exclusions. Whilst previous guidelines indicated that all exclusions should be of ‘last resort’, this requirement now only applies to permanent exclusions (Improving Behaviour and Attendance, 2007, para.14) (Sutherland, 2008, p.182). Whilst Sutherland is correct that this new distinction has made it easier for schools to give fixed period exclusions as they no longer have to be used as a last resort, guidance is still clear that all exclusions should be given for good reason and with serious consideration for the child’s education. Indeed, paragraph 14 states that fixed term exclusions should be given ‘for the shortest time necessary’ with the recommendation that 1-3 days is often sufficient ‘to secure the benefits of exclusion without adverse educational consequences’. Concerning permanent exclusion, paragraph 16 states that this is effectively recognition by a school that they have ‘exhausted all available strategies for dealing with the child’. Permanent exclusion must also only take place in response to ‘serious breaches of the school’s behaviour policy and if allowing the pupil to remain in school would seriously harm the education or welfare of the pupil or others in the school’ (paragraph 14). Procedural good practice is also set out in the 2008 guidelines; all decisions to exclude should be made on a balance of probabilities, having conducted a thorough investigation and enabled the pupil to give their version of events. Exclusion decisions must also be reviewed by the school’s governing body and can also be taken to the Independent Appeal Panel (IAP). Such good practice is vital in ensuring that the A2P1 right of the child is not infringed.

The duty to provide alternative educational provision to excluded pupils is also made very clear. Paragraphs 37-38 of the 2008 guidance stipulates that for the first 5 days of a fixed-period exclusion, work must be sent home by the school and marked. Most importantly, from the 6th day there is also a statutory requirement laid out in The Education and Inspection Act 2006 s.100 and The Education (Provision of Full-Time Education for Excluded Pupils) (England) Regulations 2007 for schools to provide ‘suitable full-time education’ for fixed period exclusions and likewise for LAs from the 6th day of permanent exclusions. These duties, elaborated upon in guidance to both Local Authorities and Schools, strengthens the view that the right to education is not denied through exclusion as at least in theory, no excluded child will be cut-off from the education system. In paragraph 32 of Providing Full-Time Education from the Sixth Day of any Fixed Period Exclusion: Implementation and Good-Practice Guidance for Schools, including PRUs it is stated that ‘education provided for excluded pupils needs to be of the same high standard that they would receive in school’, and that the DfES’ view is that ‘ordinarily suitable full-time education should equate with the number of hours of education the pupil would expect to receive in school’ and be suitable to the pupil’s ‘ability and aptitude’ (para.18).

There are several reasons why the adherence of these statutory duties and guidelines should lead to the conclusion that there is no infringement of the right to education in exclusion cases; natural justice requirements are laid out and must be followed, exclusion must only occur in cases of serious behavioural breaches and alternative measures must, other than in minimal exceptions, be used first to address bad behaviour. There is also recognition that exclusion can be damaging if improperly managed and clear requirements upon schools and LEAs are laid out to provide alternative provision to prevent such detriment.

Nevertheless, there are of course arguments that the right to education is infringed by exclusion. Firstly, the standard of alternative provision provided in reality can be argued to fall short of the minimum standard required to fulfil this right. The courts have on occasions, for example in R (M) v. Worcestershire County Council [2005] ruled LEA arrangements to be unsatisfactory; here, two and a half days with one hour of mentoring was held to be insufficient for a 15 year old boy, even as a stop-gap arrangement. However, as Harris notes, ‘the courts have avoided a rigid approach and have accepted that LEAs can legitimately set in place ‘suitable’ education for excluded pupils which is not full-time’ (Harris, 2007, p.189). For example, in R (S) v. Head Teacher of C School and Others [2002] the court held that education at a PRU which amounted to only half of that provided in a mainstream school was ‘suitable’ to fulfil the s.19(1) duty. Similarly in R (B) v. Head Teacher of Alperton Community School and Others [2001], the provision of 10 hours of home tuition per week was held to satisfy the s.19 duty with the court implying that suitability of education was a matter for the authorities to determine (Harris, 2007, p.190). Leventhal, commenting on the decision in R (K) v. The Governors of Tamworth Manor High School [2004] (where exclusion for 16 days following a ‘mooning’ incident was held to be reasonable despite guidance suggesting that 1-3 days is often sufficient), also notes that there is a very high threshold of unreasonableness in exclusion cases making it extremely difficult to establish that arranged provision is unacceptable (Leventhal, 2005, p.201). Parsons similarly argues that the Wednesbury principle of unreasonableness gives LEAs and schools too wide a discretion in this area (Parsons, 2002, p.122). The decision in Ali v. Head Teacher and Governors of Lord Grey School [2006] can also demonstrate the potential inadequacy of the duty to provide alternative provision. Here A, a pupil at Lord Grey School, was excluded pending a criminal investigation into his involvement in a fire at school. Whilst he was unlawfully excluded and removed from the school role and was effectively without education from 9th March 2001 until 21st January 2002, the House of Lords, reasserting the court at first instance’ decision, held that no A2P1 breach had occurred. This decision was made on the basis that the school and LEA had provided A with sufficient opportunities to access educational facilities and that A and his parents had simply not taken up these offers. Leventhal found that this decision was, on the facts of the case, unsurprising (Leventhal, 2006, p.191). Hamilton, writing in 1997, also expresses concern as to the minimal amount of home tuition provided for excluded children who are unable to attend a school or PRU; she states that ‘tuition rarely exceeds 5 hours per week, an amount which, if provided by a parent educating his child at home, would undoubtedly be declared insufficient to constitute ‘suitable education’’ (Hamilton, 1997, p.230). However, we must remember that the A2P1 right does not protect a specific from or level of education, therefore a true denial of the right to education through exclusion is difficult to establish even when very minimal alternative provision is provided.

The exclusion process itself has also been criticised. Hancox, for example, notes that governing bodies of schools lack the impartiality needed to review exclusion decisions. He argues that governors, who are mostly volunteers and drawn from the local community, will be unwilling to appear to override the head teachers ‘professional judgement’ by ordering reinstatement (Hancox, 2000, p.746). Such criticisms are important as procedural fairness is fundamental to ensuring the rights of the excluded child. Fortin, amongst others, also notes that children lack legal status in exclusion procedures. This, she argues, ‘reflects a false assumption that children’s interests are always identical with those of their parents’ and can lead to children’s rights being underrepresented, especially in cases of uninterested parents (Fortin, 2003, p.183). Parsons similarly notes that consideration of the child’s ‘best interest’, which is the paramount consideration in the Children Act 1989, has not been similarly recognised in any education act to date (Parsons, 2002, p.121). Once again, this may lead to decisions inadequately considering the rights of the excluded child. However guidance does state that pupils should be allowed to give their version of events to head teachers (paragraph 21), and encouraged to attend the IAP hearing and speak if he or she wishes (paragraph 112) (2007 Improving Behaviour and Attendance). Gold also argues that excluded pupils are at an advantage in IAP hearings as the LEA, who establishes the IAP and provides clerks, has a clear interest to keep the child in mainstream schooling so as to avoid heavy obligations upon them (Gold, 2001, p.202).

Problems associated with reintegration and reinstatement have also been raised to illustrate that exclusion can lead to a denial of the right to education. Firstly, an order of reinstatement does not necessarily mean that the child is returned to the position they were in before exclusion. In Re L [2003] for example, a reinstatement regime which effectively confined the child to a 10 foot square room, was held to comply with the IAPs direction to reinstate. Here, the head teacher was responding to a threat of industrial action by staff, a right of teachers which was confirmed in P v. NASUWT [2003] (cited by Monk, 2004, p.87). It is also notable that guidance states that there may be exceptional circumstances in which ‘permanent exclusion should not have taken place, but that reinstatement in the excluding school/PRU is not a practical way forward in the best interest of all involved’ (2007 Improving Behaviour and Attendance, para.149). Monk notes that ‘this focus on practicalities translates almost exclusively into sympathy with the situation faced by the head teacher, rather than the pupil’ (Monk, 2004, p.87). Whilst such cases are worrying as they demonstrate the potential powerlessness of IAPs, it must again be remembered that the legal duty to provide ‘suitable’ education remains and thus a total denial of the right to education should never occur.

Conclusions:

Legally, the exclusion of a child from school should not be seen to infringe the child’s right to education. Strasbourg jurisprudence has demonstrated that the right to education is not specific to a particular form and domestic duties ensure that all children are provided with alternative provision. Importantly, Fortin also recognises that the exclusion process requires a balancing of the rights of all children, not just the excluded child (Fortin, 2003, p.179). Such disciplinary sanctions are important in the pursuit of desirable social goals, and essential in the protection of the rights of the majority. Great caution however should be practised in order that excluded children are only excluded from that particular school, not from society as a whole, and that opportunities are not lost and abandoned in the process.

Bibliography

Books:

Hamilton, C.

1997 Rights of the Child: A Right to Education and a Right in Education. In Family Law Towards the Millennium. Bridge, C. (eds.), LNB: London

Harris, N.

2007 Education, Law and Diversity. Hart: Oxford

Fortin, J.

2003 Children’s Rights and the Developing Law. 2nd Edition. LNB: London

Parsons, C.

2002 Education, Exclusion and Citizenship. London: Routledge

Cases:

Ali v. Head Teacher and Governors of Lord Grey School [2006] UKHL 14, [2006] 2 AC 363 HL

Belgian Linguistics Case (No.2) [1968] 1 EHRR 252

Kjeldsen, Busk Madsen and Pedersen v. Denmark [1976] 1 EHRR 711

Journals:

Gold, R.

2001 Conflicting Interests: Exclusion, The Individual and The School Community. Education Law Journal. 2(4): 202

Hancox, N.

2000 Exclusion of Pupils from School. New Law Journals. 150(6936): 746

Leventhal, Z.

2005 Case Reports: Exclusion. Education Law Journal. 6(3): 201

Leventhal, Z.

2006 Case Reports: Human Rights. Education Law Journal. 7(3): 191

Mountfield, H.

2000 Implications of the Human Rights Act 1998 for the Law of Education. Education Law Journal. 1(3): 146

Monk, D.

2004 Case Commentary- Re L (A Minor By His Father And Litigation Friend) – Undermining Authority? Challenging School Exclusions and the Problems of ‘Reinstatement’. Child and Family Law Quarterly. 16(1):87

Sutherland, I.

2008 New Guidance on Exclusion from School. Education Law Journal. 9(3): 182

Legislation, Guidance and Official Publications:

Department for Children, Schools, and Families. Providing Full-Time Education from Day Six of a Permanent Exclusion: Implementation and Good-Practice Guidance for Local Authorities (Revised April 2007). Accessed 10.12.08 http://www.dcsf.gov.uk/exclusions/uploads/Day%206%20guidance%20for%20LAs%20100107.pdf

Department for Children, Schools, and Families. Providing Full-Time Education from the Sixth Day of any Fixed Period Exclusion: Implementation and Good-Practice Guidance for Schools, including PRUs (Revised April 2007). Accessed 10.12.08

http://www.teachernet.gov.uk/_doc/11386/Day%206%20guidance%20for%20schools%20250407.pdf

Department for Education and Skills, Improving Behaviour and Attendance: Guidance on Exclusions from Schools and Pupil Referral Units 2007. Accessed 11.12.08

http://www.teachernet.gov.uk/wholeschool/behaviour/exclusion/guidance2007/

Department for Education and Skills, Improving Behaviour and Attendance: Guidance on Exclusions from Schools and Pupil Referral Units 2008. Accessed 09.01.09

http://www.teachernet.gov.uk/wholeschool/behaviour/exclusion/2008guidance/

Education Act 1996

Education Act 1997

Education and Inspections Act 2006, Part 7.

The Education (Provision of Full-Time Education for Excluded Pupils) (England) Regulations 2007 No.1870