Challenging a school suspension

28 November 2016

A child being suspended from school can be a distressing experience for all involved, in particular the child who is facing suspension. A school suspension is a severe sanction and as such can have serious consequences for a child both emotionally and academically.

Challenging a school suspension

There is no formal appeals process by which to challenge a school’s decision to suspend a child from school. This can result in parents left feeling helpless about their child’s suspension. There is however an option for a child to challenge the decision by means of seeking a judicial review.

Judicial review is a form of court proceeding in which the judge reviews the lawfulness of a decision or action, or a failure to act, by a public body exercising a public function. In such a case, a school is classed as a public body exercising a public function.

The law on school suspensions is governed by the Schools (Suspension and Expulsion of Pupils) Regulations (NI) 1995 as amended by the Schools (Suspension and Expulsion of Pupils) (Amendment) Regulations (NI) 1998.

In addition to this statutory guidance, all schools must have a scheme for the suspension and expulsion of pupils, based upon the Regulations and guidance from the Education Authority.

The Regulations state that a school may only suspend a child for a serious breach of school rules and only after all other strategies and disciplinary measures have failed - it is ordinarily meant to be a measure of last resort.  There are also a series of legal rules governing the process for suspension:

  • A pupil may only be suspended by the Principal;
  • Before a decision is made to suspend, the Principal should take appropriate steps to gather relevant information;
  • The initial period of suspension cannot exceed 5 school days;
  • A pupil cannot be suspended for more than 45 school days in a school year;
  • If the Principal wishes to extend the initial period of suspension, they must have the approval of the Chair of the Board of Governors;
  • The Principal must also give written reasons for the extension and the period of the extension to the parent.

Then, once a pupil is suspended, the Principal must immediately invite the parent(s) to visit the school, in order to discuss the suspension.

The cases of Re Kean [1997] NITB 109 and Re M [2004] NICA 32 both involved successful judicial review challenges to the decision to suspend a child from school.

In Re Kean, Mr Justice Coghlin (as he then was) accepted that a judicial review application could be made to challenge a school decision to suspend a pupil on the grounds of procedural irregularity. The court in that case held that the suspension of the pupil amounted to a breach of basic fairness and that the suspension should be removed from the pupil’s school record. In that case, the judge said that basic fairness required that the pupil should have been given an opportunity to consider the case being made against her by other parties and the headmaster, and make comment about that, and have those comments taken into consideration, before the decision to suspend was made.

The more recent case of Re M, which reached the Northern Ireland Court of Appeal, involved the decision of a principal to suspend a pupil from school for 5 days following an investigation of an incident where drugs were alleged to have been brought into the school by another pupil and handled by the pupil. The decision to suspend was made the following day without any consultation with the parents, nor were they afforded an opportunity to challenge any of the material which the principal purported to take into account in arriving at his decision to suspend their child. At first instance, Mr Justice Girvan (as he then was) accepted that the decision to suspend was procedurally unfair. In the circumstances, the Court held that there was time available to involve and consult the parents of the pupil, who was too young to protect his own interests or to know how to consider or challenge the evidence put up against him.

A judicial review case must be brought before the court quickly and in any event within three months of the decision or action being challenged. These time limits mean applications should be made as soon as possible after a decision is made, or action is taken.

If you or your child are affected by a school suspension, it is best to seek legal advice promptly. Legal aid can be available, particularly where the interests of a child are at stake, and especially when court proceedings are required. Please do not hesitate to contact our education law solicitor, Brian Moss for a confidential consultation.

 

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