Denying Children’s Rights
By Stealth

In Year 1 of our School Exclusions Inquiry we found a boy of Black Caribbean heritage with Special Educational Needs (SEN), eligible for free school meals is 168 times more likely to be excluded from school than a White British girl without SEN, from a more affluent family.

Est. read time: 19 min
O   n 24 April 2013 we published our Year 2 report “Always Someone Else’s Problem” on illegal exclusions. Supported by a survey of teachers, it details the scale and nature of children illegally excluded. At a conservative estimate, this affects thousands of children in several hundred schools’.

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The Department for Education has been forced to withdraw its statutory guidance on school exclusions which came into force less than a month ago, on 5 January 2015.

Lawyers acting for the Communities Empowerment Network (CEN) and Just for Kids Law (JKL), organisations that uphold children’s rights and provide advocacy and representation for excluded children and their parents/carers, threatened legal action against the Secretary of State for Education, Nicky Morgan, over her failure to consult on the new guidance and the DfE’s attempts to surreptitiously pass it off as simply providing minor clarifications and updates for governors and headteachers on the previous (2012) guidance on school exclusion.

On 9 December 2014, the government published its new guidance: ‘Exclusion from maintained schools, academies and pupil referral units in England – Statutory guidance for those with legal responsibilities in relation to exclusion’, noting that ‘This guidance replaces the document of the same name published in September 2012 for schools in England and applies to exclusions that occur after 5 January 2015’.

The Secretary of State did not consult on the provisions of the new guidance, although they fundamentally increased the powers of headteachers to exclude children.

The 2012 guidance stated:

Good discipline in schools is essential to ensure that all pupils can benefit from the opportunities provided by education. The Government supports head teachers in using exclusion as a sanction where it is warranted. However, permanent exclusion should only be used as a last resort, in response to a serious breach, or persistent breaches, of the school’s behaviour policy; and where allowing the pupil to remain in school would seriously harm the education or welfare of the pupil or others in the school.

The decision to exclude a pupil must be lawful, reasonable and fair. Schools have a statutory duty not to discriminate against pupils on the basis of protected characteristics, such as disability or race. Schools should give particular consideration to the fair treatment of pupils from groups who are vulnerable to exclusion. (My emphasis).

The 2015 guidance states:

Headteachers should be confident in using exclusion where they deem it to be a lawful, reasonable and fair sanction. The use of exclusion should reflect the importance of good behaviour for the education and welfare of all pupils. In considering whether to exclude a pupil, headteachers should weigh up the seriousness, or persistence, of the pupil’s behaviour, together with the impact of not excluding the pupil on the school as a whole and the integrity of its behaviour policy.

Whilst every effort should be made to identify pupils at risk of exclusion, and to put in place strategies to address problematic behaviour, adopting a blanket approach of never excluding pupils may undermine the school’s ability to maintain discipline.

It is for the headteacher to decide whether a child’s behaviour warrants permanent exclusion, though this is a serious decision and should be reserved for:

a serious breach, or persistent breaches, of the school’s behaviour policy; or
where a pupil’s behaviour means allowing the pupil to remain in school would be detrimental to the education or welfare of the pupil or others in the school.

Allowing pupils an opportunity to present their case before taking the decision to exclude will help ensure that the decision is fair, although this may not always be practicable.

My emphasis

So, the 2015 guidance removes: ‘permanent exclusion should only be used as a last resort’ coupled with ‘where allowing the pupil to remain in school would seriously harm the education or welfare of the pupil or others in the school’ and makes it legal for headteachers to permanently exclude only for ‘a serious breach, or persistent breaches, of the school’s behaviour policy’.

The Guardian reports Nicky Morgan as defending the new guidance thus:

“Parents tell us that school discipline is one of their number one concerns. But all too often we hear of headteachers unsure of their powers to exclude pupils, and of anxious parents concerned that unruly pupils disrupting their child’s education are not being properly dealt with,” she said.

“Allowing teachers to properly discipline disruptive pupils and exclude the worst-behaved pupils can benefit all by deterring poor behaviour and freeing up teachers’ time and energy, allowing them to focus on what they do best – teaching and inspiring our next generation.”

One wonders who those headteachers are that are ‘unsure of their powers to exclude pupils’ and why they remain unsure despite the plethora of Education Acts and Statutory Guidance on Exclusion there has been since 1999. Morgan says that ‘allowing teachers to properly discipline disruptive pupils and exclude the worst-behaved pupils can benefit all
.’, but she does not say how that would benefit pupils who, for any number of complex reasons, clearly have problems managing their behaviour.

The government’s punitive approach to school students is epitomised not just by Morgan’s vigorous defence of the stealthily introduced new guidance, but by this:

Whilst every effort should be made to identify pupils at risk of exclusion, and to put in place strategies to address problematic behaviour, adopting a blanket approach of never excluding pupils may undermine the school’s ability to maintain discipline.

Surely, that is a matter for the particular school and its pastoral arrangements and no doubt its preference for extending ‘distributed leadership’ to its students and having them mentor and support their peers, as well as assisting in the management of the school’s behaviour policy.

Or, is putting this gratuitous advice in the guidance a way of taking a side-swipe at the 25% (approximately) of schools that do operate a nil exclusion policy and still succeed in delivering the right and entitlement of all their students’ to an education and in ‘teaching and inspiring our next generation”, to use Morgan’s own words?

Anthony Robinson of Scott-Moncrieff & Associates LLP, formerly a senior advocate with the Commission for Racial Equality and the Equality and Human Rights Commission, acting on behalf of Just for Kids Law and CEN put the Secretary of State for Education on notice that if she did not withdraw the new guidance, she would be legally challenged for failing to consult upon it and for inaccurately representing it, in effect, as insubstantial modifications and as not introducing any substantive changes to the 2012 guidance.

In response to the legal arguments put to Nicky Morgan about her department’s unlawful attempts to introduce that guidance without consultation, the DfE took the unprecedented step of deciding to withdraw the guidance that has been in force since 5 January 2015, arguing as follows:

The Department is concerned to ensure that the right decisions are made about the guidance; and considers that a case has been made about the process followed in modifying the guidance and for it to be reconsidered to make absolutely sure that all relevant matters have been taken into account.

In those circumstances, it is considered that litigation would not be in the public interest, or indeed in the interests of those whose interests you serve. The school reform minister, Nick Gibb intends therefore to withdraw the 5 January 2015 guidance on Monday 2 February 2015 with a view to a reconsideration of it and a fresh decision being made as to the appropriate form of such guidance going forward.

It is worth remembering that this is happening at a time when David Cameron is trumpeting on relentlessly about that quintessential British value – ‘the Rule of Law’:

In a Mail on Sunday article he said that values including freedom, tolerance of others, accepting personal and social responsibility, and respecting and upholding the rule of law were not optional. “We need to be far more muscular in promoting British values and the institutions that uphold them,” Cameron wrote. Rejecting the moral relativism of some of his critics, he said: “A genuinely liberal country believes in certain values, actively promotes them and says to its citizens: this is what defines us as a society.”

A couple years ago, I was shouted down at a headteachers conference for daring to make the following observations which I thought was basic common sense and incontrovertible, i.e., that goodness was not made in schools and that some headteachers were capricious in their dealings with students and with their parents, not least in their efforts to deny them the right to challenge the headteachers’ decisions and the schools’ practices; that such conduct was tantamount to denying school students the very rights that teachers and headteachers join trade unions to safeguard.

Those observations were not born of mischievous intent, but were based on first hand evidence I had gathered over 25 years in my capacity as a parent advocate, chair of a parents organisation and founder/trustee of the Communities Empowerment Network (CEN), an organisation that has dealt with an average of 1,000 excluded students each year since 1999.

Over that 15 year period, it has been fascinating to watch year on year the demands from teaching unions and headteachers’ lobbies for changes to Circular 10/99, the statutory guidance on school exclusions. The constant clamour for those changes became even more voluble as schools were required by government not only to improve standards and raise achievement, but to position themselves as near as possible to the top of the schools’ league tables.

With that came a concentration on academic achievement as measured by test and examination results and the incentive to invest as little teaching resource as possible in those who demonstrate by their attitude, disposition and behaviour that they are not disciplined people, let alone disciplined learners with high aspirations and a focus on attainment.

This latter group is most likely to be found in lower sets, among the worst performing percentile and among the excluded, fixed term or permanent, despite their ability. They are also the ones most likely to be on the radar of teachers and the school’s management team and the subject of staff room chatter.

As a consequence, there is often a view among staff that such students have forfeited their right not just to schooling and teachers’ high expectations, despite their own low aspirations, but to rights ‘per se’. It is therefore a small step from that position to the view that they should not expect to be afforded the same rights as everybody else, despite the fact that precisely because of their profile they are likely to be disbelieved, bullied, provoked to react in ways that get them punished, or to act in ways that are indicative of their lack of self confidence, self esteem and self management skills.

This scenario constitutes in itself a form of exclusion, long before formal exclusion, fixed term or permanent, is used as a sanction for contravening the school’s behaviour or uniform policy. It is a form of exclusion that manifests in the mutual but seldom articulated agreement that the school does not like the student any more than they love the school.

So, although teachers and headteachers would go to the wall in defence of their right to representation and a fair hearing if they were accused of incompetence, dishonesty, lack of capability, or worse yet, sexual or racial harassment, schools feel justified in denying students the right to challenge headteachers’ decisions to exclude them, especially when they feel they have not been given the chance to speak in their own defence, or when it is clear to them that the headteacher or governing body is automatically preferring a teacher’s version of events to theirs, or similarly that of a student whom the school regards as more ‘valued’, whether on account of ability, performance, class, gender or race.

Teachers, headteachers and non-teaching staff in schools are unionised and their unions are thankfully ‘muscular’ in defending their members’ hard won rights. Lawyers paid for by those unions are called upon to represent school staff, or/and to advise union officers who appear at hearings to represent their members. Such staff would consider it unthinkable for anyone to suggest that there should not be ‘parity of arms’ at such hearings, or that they, whether as complainants or as defendants, should not have the same level of knowledge and information on which the other side is relying in order to make their case.

Yet, over the last 15 years, teaching unions have demanded more and more powers to exclude students and to debar independent appeal panels from being able to return them to their schools, even when those panels conclude that the exclusion was illegal and the governing body had no right to endorse it. The government reconstituted the membership of independent appeal panels, making it mandatory that a headteacher sat at each hearing.

Parents and parent advisory groups complained that the government was thereby loading the dice against students and parents, especially if the headteacher concerned had a ‘zero tolerance’ mindset when it came to matters of students’ behaviour and discipline, but those objections did not make an iota of difference.

Then, following the Education Act 2011, the 2012 guidance weakened the status of Independent Appeals Panels as far as students and parents were concerned and reconfigured them as Independent Review Panels, with no power to direct a governing body to reinstate an excluded pupil. The final decision is made by the governing body/Academy Trust.

There were 3,900 permanent exclusions in secondary schools in 2012/13, with ‘persistent disruptive behaviour’ accounting for 30.8 per cent of all permanent exclusions. In state-funded primary schools exclusions for physical assault against an adult is a slightly more common trigger for a permanent exclusion, accounting for 31.3 per cent of all primary permanent exclusions.

What is especially disturbing about the DfE statistics is the high number of students with special educational needs that are excluded, despite the lip service that is paid to ‘inclusive education’ and schools’ need to have regard to the Equality Act 2010. Schools were required to comply with the Public Sector Equality Duty of the Act during the period covered by these statistics. The requirements which the following section of the 2015 guidance highlights have not changed since 2010:

Under the Equality Act 2010 (“the Equality Act”), schools must not discriminate against, harass or victimise pupils because of their: gender, race, disability, religion or belief, or sexual orientation; because of a pregnancy / maternity; or because of a gender reassignment. For disabled children, this includes a duty to make reasonable adjustments to policies and practices.
The public sector equality duty means that, in carrying out their functions, schools must also have due regard to the need to:

eliminate discrimination, harassment, victimisation and other conduct that is prohibited by the Equality Act;
advance equality of opportunity between people who share a protected characteristic and people who do not; and
foster good relations between people who share a protected characteristic and people who do not; in particular by having due regard to the need to tackle prejudice and promote understanding.

These duties must be taken into account when deciding whether to exclude a pupil. Schools must also ensure that their policies and practices do not indirectly discriminate against pupils by unfairly placing them at a greater risk of exclusion than others. Provisions within the Equality Act allow schools to take action to deal with particular disadvantages that may affect a specific group, where this can be shown to be a reasonable and proportionate way of dealing with such issues.

(Page 7)

Despite that, however, the DfE reports that:

Pupils with special educational needs (SEN) (with and without statements) account for 7 in 10 of all permanent exclusions.

Pupils with SEN without statements are around ten times more likely to receive a permanent exclusion than pupils with no SEN.

Pupils with a statement of SEN are around six times more likely to receive a permanent exclusion than pupils with no SEN.

Pupils with SEN also have the highest rate of fixed period exclusion.

Pupils with SEN without statements are around six times more likely to receive a fixed period exclusion than pupils with no SEN.

Pupils with a statement of SEN are around nine times more likely to receive a fixed period exclusion than those pupils with no SEN.

We at CEN have drawn attention to the worrying trend of exclusions by academies and free schools, many of whom are basically ignoring the Equality Act 2010, as research conducted by Race on the Agenda (ROTA) in 2013 found:

Out of the 78 free schools opened in 2011 and 2012:

Only 7.7% have published one equality objective
Most seem to be unaware of the Equality Act
Less than 25% have made reference to the Equality Act 2010 in their key documents and policies’

CEN will shortly be publishing its own research findings, looking behind the DfE’s figures and presenting the views of students, parents, headteachers, governors and local authority exclusion officers about independent review panels (IRP), their functioning and powers. Preliminary findings indicate that:

The shift to the independent review panel format in September 2012 where panels can only quash and direct the governing body to consider the decision was overwhelmingly unpopular with parents and most local authority officers, while heads took less issue with these changes overall.

According to the Department for Education (DfE) statistics, of the 300 IRPs decisions made in 2013-13, 210 or 71.8 of these were upheld, while 50 were quashed and 40 recommended for reconsideration by the governing body. Of the 90 cases either directed or recommended for reconsideration by governing bodies, only 20 of these students were reinstated.

Therefore, although 30% of exclusion decisions have been deemed flawed enough by independent review panels to merit either directing or recommending reconsideration, only 22% of the cases sent back to governing bodies for reconsideration resulted in a student being reinstated. Overall, only 6.6% of reviewed decisions result in a student returning to their school.

The much higher success rate of the sample could be connected to CEN representing many of these parents at the IRP stage, or parents who came to CEN for support had stronger cases. Yet, despite the sample of parents being dramatically more successful at the IRP stage than the average appellant, most parents as well as many local authority officers and some head teachers have serious concerns about changes to the process.

A Wilful, Wasteful and Discriminatory War on Our Children

Despite the careful and fact-rich research conducted by the Children’s Commissioner and the evidence Dr Atkinson has presented to government of the extent of illegal exclusions across the country, as well as the impact of the exclusion regime on the most vulnerable of school students, the government has gone on pursuing its agenda to not just endorse and collude with existing illegal practice, but to extend the scope headteachers and governors have for denying fundamental rights to school students and their parents/carers.

In the first of her reports, ‘They Never Give Up on You’, Dr Atkinson recommended that the pre-2012 Independent Appeal Panels should be reinstated. That report critiqued the IRPs which replaced them and drew attention to the opinion of the Joint Committee on Human Rights which stated that the IRP model breached Article 13 of the European Convention on Human Rights regarding the right to a fair trial:

Recommendation 6: To ensure an effective safeguard against unreasonable exclusions exists, the Education Act 2011 should be amended to reinstate Independent Appeal Panels, as they were constituted prior to the (2011) Act.

That recommendation was roundly dismissed, with the government failing to address the critical argument relating to ‘the right to a fair trial’:

DfE Response to recommendation 6

The Government believes that the replacement of independent appeal panels with independent review panels provides for a fair and accessible process for considering exclusion decisions in a way that takes account of the impact that poor behaviour can have on the education and welfare of other pupils. There are no plans to seek the revocation of the provisions of the Education Act 2011.

A number of the report’s other recommendations are similarly dismissed by the DfE, including a recommendation to carry out research into illegal exclusions as well as one regarding the alleged unlawful conduct of academies.

Ofsted, for its part, has refused to monitor compliance with the Public Sector Equality Duty following a recommendation from the Children’s Commissioner, although they have said they will look at how relevant duties are put into action. Again, that is in spite of the indisputable evidence in the reports of the Children’s Commissioner and bodies such as ROTA and the Runnymede Trust.

So, six months before a general election, the government chooses to issue statutory guidance that effectively hands over to schools limitless power to exclude students, with a toothless and cynical veneer of an appeal procedure to act as the only body to which excluded students and their parents could call headteachers to account.

Yet, everyone knows that provision ‘otherwise than at school’ for excluded students is something of a lottery when it comes to quality and ethos, let alone the fact that student’s know that those places are not highly regarded by schools themselves, let alone by colleges and employers. Indeed, for far too many students they represent the ante-chamber of the young offender institution.

The government nearly got away with putting the roof on a structure that has been in the making for some years, an edifice that houses a two track schooling system, with structurally defined school rejects who, in the famous words of Tony Blair, need to be ‘taken out of circulation’ in mainstream education so that schools could, in Nicky Morgan’s words, ‘focus on what they do best – teaching and inspiring our next generation’.

I wonder if those two have the same speech writer?

It is surely time for some ‘class action’ by parents and students up and down the land in defence of children’s rights and especially in response to the scandalous practice that is school exclusion in this country. This situation calls for mobilisation and collective action on the part, not just of campaigning organisations such as CEN and Just for Kids Law, but parents groups and student action groups all around the country, as well as progressive lawyers with a concern for human rights and for children’s right not to have their life chances compromised by the state so early in their social, emotional, moral and academic development.

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