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Truancy and exclusion: Right of appeal in education law

Title: 1. Patrick Thomas is a 14 year old pupil at Haringey Catholic High School, which is a voluntary aided school. On Tuesday 22 February 2005 the mothers of two girls in Patrick's class wrote to the head teacher complaining about Patrick's behaviour in a design and technology class the previous day. One of the girls, Lenora, told the head teacher that she and Patrick had been messing around in the class and he tripped her up before pulling her by the legs across the floor and looking 'up her legs'. She also stated that she thought that Patrick had 'pinched my bum' as they left the classroom at the end of the lesson. The other girl, Charlotte, confirmed that she had seen Patrick pull Lenora across the floor by the legs, and she saw Patrick near Lenora as they left the classroom. The teacher had not seen either incident. On Thursday 24 February 2005 the head teacher wrote to Patrick's mother, Ms Thomas, telling her that he has permanently excluded Patrick first because of the incident on Monday, which the head teacher stated was sexual harassment, and second because of Patrick's poor attendance record.

This is the first time that Ms Thomas realised that Patrick has been playing truant. She discovers that Patrick missed 50 sessions of school in the Autumn Term 2004 and has missed 30 sessions so far in the Spring Term 2005. Ms Thomas does not think that Patrick should have been permanently excluded.

Advise Ms Thomas: (a) on her rights of appeal in relation to Patrick's permanent exclusion including the remedies that are available; and

(b) On her legal position in relation to Patrick's truancy, considering any possible penalties, orders or charges that may be imposed.

a) In respect to the actions of the teacher and the exclusion of Kevin, she may complain via the independent complaints procedure under Section 29 of the Education Act 2002. If this complaints procedure does not aid Mrs. Thomas and provide a fair hearing in an appeals process for Patrick, then she may complain directly to the Secretary of State (DfES) to deal with an appeal if the LEA or school has acted unreasonably with the actions taken with her son, i.e. no reasonable body would have made the decision. This follows the guidelines of judicial review and natural law where a proper investigation needs to take place. Judicial review falls within two grounds; illegality (ultra vires); and breach of natural justice. This has been confirmed in Council of Civil Service Unions v Minister for the Civil Service (GCHQ case)[1] by Lord Diplock, who split breach of natural justice into two types; irrationality; and procedural impropriety. In this case procedural impropriety is most likely because the teachers did not investigate properly. Procedural Impropriety is the main arm of the traditional breach of natural justice, as irrationality is too hard to prove. In legal terms this arm refers to the breach of two very central rules to justice which are; the right to a fair hearing; and the rule against bias. Therefore if the proven decision has not allowed the individual make their case before it has been decided or have an appeals process to challenge it then the first rule may be broken. Whereas the second rule simply refers to the decision maker allowing personal preferences or dislikes to influence his decision in a way that no reasonable decision maker would. Standing or sufficient interest is a two-tier test but the main pitfall as indicated is locus standi but in order to get a fuller picture both tiers will be introduced. The test was clarified by Lord Donaldson in R v Home Secretary, ex parte Swati[2] which said the person must have an arguable case, which was real and not a theoretical possibility. Therefore it must exclude hopeless cases and as per Nolan J in R v inspector of Taxes, ex parte Kissane[3] leaves a fairly low threshold of cases to be able to show standing. The second tier traditionally restricted to circumstances whereby the individual must have ‘some right, interest or legitimate expectation deserving of legal protection has been detrimentally affected’[4]. However in late this has been expanded to include situations where ‘the alleged abuse of power appears to be of such severity or substance that a member of the public or community served by the public body is justified in bringing it before the courts[5]. Therefore this would provide grounds for appeal of the decision under the Education Act 2002.

b) Under the current law a parent is criminally liable if she does not ensure that her son regularly attends school, if he is between the ages of 5 to 16. Patrick is 15 therefore she is responsible for ensuring that her son goes to school on a regular basis. Under the Education Act 1996 (EA) this offence is of strict liability and can even be enforced if all reasonable steps have been taken by the parent to ensure that her school-age child is attending school. The EA deals with various steps, for example if a child is not registered with a school or has not attended their designated school for some time the school in conjunction with the Local Education Authority can issue a school attendance order, which must be complied with in no less than 15 days. The school attendance order is dealt with under the EA 437 (1) to (3). If the parent can prove that the child is being educated in another manner suitably, e.g. home schooling then the order may be discharged; otherwise the parent must ensure that their child sufficiently attends school until they pass school age. Otherwise they can be prosecuted for their child’s truancy, which results in a fine of up to £2500 and/or 3 months imprisonment/community service. As a strict liability offence all that needs to occur is the sufficient breach of the attendance order. The act contains in Section 443(2) the provision whereby on acquittal the order be rescinded, but there is the added safeguard in subsection (3) that the parent may be subject to future orders. It must be noted that the school and LEA need not begin action via an attendance order, but may bring proceedings automatically through Section 444 (1), where subsection (2) makes this section refer directly to non-boarder establishments:

If a child of compulsory school age who is a registered pupil at a school fails to attend regularly at the school, his parent is guilty of an offence.

There are available defences under this section in respect to the attendances in subsection (3):

(3) The child shall not be taken to have failed to attend regularly at the school by reason of his absence from the school-

(a) with leave,

(b) at any time when he was prevented from attending by reason of sickness or any unavoidable cause, or

(c) on any day exclusively set apart for religious observance by the religious body to which his parent belongs

Therefore if the parent can prove that the attendances are primarily due to one of or a combination of the above defences then no liability is present. The DfES deals with educating parents and children in respect to the criminal liability of truancy. It also illustrates the powers that Education Welfare Officers, Police Officers and Headteachers have in respect to truants, which include penalty notices; whereby no court case occurs much like a parking fine or a speeding ticket; whereby failure to comply with the penalty will result in further prosecution under Section 444 of the EA.

Another alternative to prosecution for those parents who endeavour to get their children to attend school is the parenting contract; whereby the school and LEA provide the necessary support for their child(ren) to attend school and the parent agrees to meeting certain requirements. Failure to comply with the agreement will result in further prosecution. Also the police have been further empowered by Section 16 of the Crime and Disorder Act 1998; whereby the police can remove a truant to their designated place of education, which provides proof in respect to the parent’s liability in addition to attendance records. Therefore Parliament and the DfES is now taking truancy seriously, because in many cases it is believed that irresponsible parents attribute to the truancy and anti-social behaviour of their children; hence the evoking of strict liability against the parents. In addition to these criminal proceedings in respect to truancy, the LEA and schools can deal with anti-social behaviour of a child via compelling the parent to act. This is most popularly done through a civil parenting order, which has been available since February 2004, which consists of a civil court order compelling the parent to satisfy certain requirements, which may include parenting classes and other requirements to improve the behaviour of their child. This behaviour may include anti-social behaviour in the classroom or truancy. Such an order can be entered into when the child has been excluded for bad behaviour permanently or twice in a 12 month period; or when it is believed the parent is a vitiating factor in their child’s behaviour.[6]

Therefore if Ms Thomas does not ensure that schooling is received then criminal liability will be imposed.

AND

2. Explain briefly why the Higher Education Act 2004 was passed and advise Middlesex University on the impact of the Act on the remedies available to its students.

The HEA 2004 was passed because there was no recourse to justice for students in respect to equality through out the Higher Education system. In fact there were many breaches of judicial review grounds. The act was passed to create fairness and equality on these grounds and well as ensuring that all students were treated equally throughout the country. Also the previous system was breaching students’ basic rights under Article 6 of the ECHR. Therefore the Higher Education System needed to be brought into line, especially since the incorporation of the Article through the ECHR. Therefore disciplinary hearings should follow the same avenues as courts and the case law. Therefore prior to the HEA 2004 there may have been a claim under the ECHR for students that were subject to unfair disciplinary hearings at universities etc The right to a fair and public hearing 6(1) is the one section of Article 6 that is applicable to both civil and criminal hearings and quasi-policing has caused problems in this area. Therefore in relation to criminal trials which include the rights contained in sections 6(2) and 6(3) this section is broadly interpreted to include all the rights in the subsequent sections[7]. The case of Kraska v Switzerland[8] decided that all areas of Article 6 have to be fulfilled in order to ensure a fair hearing; for example if there is not equality of arms, i.e. an equal defence to prosecution, then it is not a fair hearing.[9] The English Legal System has gone to the European Court of Human Rights (ECtHR) on numerous occasions in relation to all aspects of Article 6 that apply to a fair hearing in a court, which has included; how the rules of evidence affect the fairness of the trial. This should equally apply in universities in respect to evidence of breaching the code of conduct. For example, although the rules of evidence are usually left to the domestic court, the ECtHR decided there must be the rule of pre-disclosure of evidence by the prosecution to the defence in order to ensure a fair trial[10]. In the case of Rowe and Davis v UK[11] there was a finding of an unfair trial when the prosecution failed to give the presiding judge important documents in order to decide if there should be pre-disclosure to the defence. This is not a hard and fast rule, especially when it is a case of protecting the public interest and immunity is granted from pre-disclosure[12]; however as this is such as important rule to the right to a fair trial there must be extenuating circumstances that gives the prosecution immunity from pre-disclosure. However it has been argued by Wadham and Mountfield that the cases of Fitt and Jasper may be reargued is been domestic courts in line with Rowe and Davis.[13] Therefore if these rules are not adhered to in universities this could harm the future of the individual therefore the HEA 2004 was enacted. This act allows students the ability to try various methods for remedies; the first is voluntary co-operation and reconciliation through the Office of the Independent Adjudicator for Higher Education; and the second is court action against the university and the decision of the disciplinary hearing. These are remedies that were not available before and hopefully create fairness and equality for students through out the country.

Bibliography:

Card, R and Ward, R, 1994, The Criminal Justice and Public Order Act 1994 Bristol: Jordans.

DfES Website: www.dfes.gov.uk

DfES Higher Education Website: www.dfes.gov.uk/hegateway

DfES Parent Centre Website: www.parentcentre.gov.uk

DfES, Parenting Orders which can be found at: http://www.parentcentre.gov.uk/publishContent.cfm?topicAreaId=177

Dworkin R. Rights as Trumps, in J Waldron Theories of Rights, (1984, New York, Oxford University Press)

Dworkin R. Taking Rights Seriously, (1977, London, Duckworth)

H. Fenwick, 2002, Civil Liberties and Human Rights (3rd Edition), London, Cavendish

M, Freeman, 2002, Human Rights, Cambridge, Polity

HMSO, 2004, Explanatory Notes to the Higher Education Act 2004, can be found at: http://www.legislation.hmso.gov.uk/acts/en2004/2004en08.htm

M. Ignatieff, 2001, Human Rights, Princeton, Princeton University Press

Jason-Lloyd, L, 2003, Quasi-Policing. London: Cavendish Publishing.

M. Jefferson, 2001, Criminal Law (5th Edition), Harlow, England, Longman Publishing

P. Jones, 1994, Rights, Basingstoke Hamps, Palgrave

Jowell, Cooper, 2001, Understanding Human Rights Principles, Oxford, Hart Publishing

Middlesex University: www.mdx.ac.uk

Middlesex University Human Resources, Equal Opportunities Statement can be found on the Middlesex University’s Website at: http://www.mdx.ac.uk/24_7/news/docs/hrps8.pdf

Middlesex University Regulations can be found at: http://www.mdx.ac.uk/regulations/am.htm#f2

S. Millns, N. Whitty, 1999, Feminist Perspectives on Public Law, London, Cavendish Publishing

Morton, J, 1994, A Guide to the Criminal Justice and Public Order Act 1994 London: Butterworths

A. Mowbray, 2001, Cases and Materials on the European Convention on Human Rights, London, Butterworths

C.R. Munro, 1999, Studies in Constitutional Law, London, Butterworths

M. Reddy, 2004, The Office of the Independent Adjudicator for Higher Education: Preparing for the Statutory Scheme, Edu LJ 5(4)

E. Shorts, C. de Than, 2001, Human Rights in the UK, London, Sweet & Maxwell

G. Slapper, D. Kelly, 1999, The English Legal System (4th Edition), London, Cavendish Publishing

J.C. Smith, 1999, Smith & Hogan: Criminal Law (9th Edition), London, Butterworths

Keir Starmer, 2002, European Human Rights Law: The Human Rights Act 1998 and the European Convention on Human Rights, London, Legal Action Group

Josephine Steiner & Lorna Woods (2001) Textbook on EC Law (7th Ed), London, Blackstone Press

R. Stone, 2002, Textbook on Civil Liberties & Human Rights (4th Edition), Oxford, Oxford University Press

J. Symonides, 2000, Human Rights: Concept and Standards, Aldershot, Unesco Publishing

J. Wadham & H. Mountfield, 2001, Human Rights Act 1998 (2nd Edition), London, Blackstone

Stephen Weatherill (2000) Cases & Materials on EC Law (5th Ed), London, Blackstone Press

Zander, M 2003, The Police and Criminal Evidence Act 1984 (4th Edn.) London: Sweet and Maxwell

1


Footnotes

[1] (1998) 21 EHRR 269

[2] [1986] 1 WLR 477

[3] [1986] 2 All ER 37

[4] Alex Carroll, 2002, 305

[5] Ibid

[6] DfES, Parenting Orders which can be found at: http://www.parentcentre.gov.uk/publishContent.cfm?topicAreaId=177

[7] Airey v Ireland (1979) 2 EHRR 305

[8] (1993) 18 EHRR 188

[9] Neumeister v Austria (1968) 1 EHRR 91

[10] McGinley and Egan v United Kingdom (1999) 27 EHRR 1; Edwards v UK (1992) 15 EHRR 417

[11] (2000) 30 EHRR 1

[12] Jasper v UK (2000) 30 EHRR 1; Fitt v UK (2000) 30 EHRR 1

[13] Wadham, Mountfield, 2001, 88


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