School Exclusions Can Be Life-Changing. All Children And Their Families Should Have The Right To Legal Advice

Exclusions have ramifications that are every bit as serious for young people as many of those that can happen in criminal and family courts
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To many, the idea of a pupil getting a lawyer to represent them at school feels strange. It’s the kind of thing that might make for a low-quality skit in a late-night comedy sketch show; a snappy-dressed lawyer in an undersized plastic chair whispering advice in an 8-year-old’s ear.

For many, there’s something quite unsettling about the idea that the relationship between pupils, parents and teachers should be so confrontational, so formalised, and so heaped with bureaucracy that a lawyer should be necessary. After all, we would like to think that the actions a school takes, including interventions such as punishments, will be done in the young person’s interests and to improve their engagement.

But there’s a problem with seeing school exclusions as an intervention, or “punishment”, like any other as highlighted recently by MPs in the House of Commons Education Committee report Forgotten Children: alternative provision and the scandal of ever-increasing exclusions.

The issue is that exclusion is not an ordinary intervention – if it’s even an intervention at all. “Intervention” in schools’ jargon, means an act to improve the state of the young person’s access to their education. Interventions may be further educational support such as tutoring, help with emotional regulation, or sports therapy. They can also include punishments such as detention, isolation or prohibition of extra-curricular activities.

But exclusions are none of these things. They do not – nor are they intended to – improve a young person’s relationship with the school. They do not address any of a pupil’s needs or difficulties. And, whilst punishments are meant to improve poor behaviour, the evidence that exclusions overwhelmingly do more harm than good is incontrovertible and widely accepted. Therefore, exclusion is not for the student’s benefit. It is not for the parent’s benefit. It is for the school’s benefit. This point was starkly highlighted in the Education Committee’s report. It found that “off-rolling”, or the process of removing troublesome students from schools’ books, to improve stats and rankings or just generally make life easier, was a major issue.

There are obviously going to be cases where exclusion is used in good faith in the interests of other pupils. However, this doesn’t change the fact that off-rolling is a serious problem, or that it will be difficult – and often impossible – for excluded pupils and their families to identify where this unlawful practice has taken place, let alone to effectively challenge the school over it.

And here’s the point. A school may be reasonably entitled to expect a parent to help improve a pupil’s behaviour. But parents cannot reasonably be expected to help the school get rid of their child. This conflict of interest places the two parties at odds. The inevitable consequence? Exclusions are a case of Parent v. School.

This is true regardless of whether the exclusion was, as a matter of fact, lawfully done. And just as in the case of a criminal charge, a young person has the right to defend themselves, the right to examine the case against them, and the right to have an independent person decide their fate. Because for many, exclusion is life-changing.

Fortunately, there are rules to do just that: ensure schools only use exclusions when it is reasonable to do so, and make sure students get a fair hearing. But these rules are no good if families cannot make effective use of them. The Government’s exclusions guidance, if parents and families find it, is 60 pages long. The Special Educational Needs and Disabilities Code of Practice, which they may also need, is 290 pages long. Families may need statutes and case law, a familiarity with the public law principals of judicial review and an understanding of whether their case involves an actionable case of discrimination. And all of this needs to be learned before the governors’ hearing takes place – within 3 weeks of the exclusion being administered.

What’s more, the governors who oversee an exclusion are the excluding school’s governors. They have a relationship with the headteacher and may have an obvious interest in off-rolling due to the same pressures as those experienced by the headteacher. Families can, of course, appeal further to an Independent Review Panel (IRP). However, an IRP does not have the final say and cannot bind a school to overturn an exclusion. Therefore, the final say rests with the Governors of the excluding school. In addition, the potential for families to have an advocate of their own is low. Really low. Outside of London, it’s pretty much non-existent because there are simply no organisations offering this service. Inside London there are a small handful of organisations who routinely help with this issue and they simply do not have capacity to help everyone.

So, school exclusions have all the hallmarks of a legal conflict; opposing interests between sides, a complicated body of rules, judgement by a panel and high stakes for those involved. However, it lacks two things: a guarantee of an independent arbitrator, and the right of access to advice and representation for the accused. This is probably why the Education Committee recommended that the Government introduce both these things in their report. These recommendations are very welcome.

It is unfortunate that advisors and representatives should be necessary in schools at all. But exclusions have ramifications that are every bit as serious for young people as many of those that can happen in criminal and family courts. We shouldn’t let our squeamishness about addressing this issue head-on result in miscarriages of justice.

Alex Temple is a Trainee Solicitor at Just for Kids Law