Who would make excuses for sexual violence in schools? Part 4
A legal case reveals the difficulties faced by schools in keeping children safe.
The story so far…
I have previously written about sexual assault in schools, and those who advocate keeping young people who commit sexual assault in school:
Blog Series: Who would make excuses for sexual violence in schools?
A disturbing case
I would like to add to this a recent case where a school rightly decided to exclude during the aftermath of allegations of sexual assault. This case is interesting because of those who fought to overturn the exclusion. Unfortunately, the case received almost no media coverage. What I have found out about the case comes from the full details of the High Court judgment, which can be found here, and this brief summary of the legal issues by one of the lawyers representing the school.
A 16-year-old pupil at the school (referred to in the judgment as "A Pupil") was under police investigation for the oral rape of a minor. The complainant in the case was also a pupil at the school. During the investigation, it was found that A Pupil had "indecent images of sexual acts involving a minor" on his phone. While the investigation was ongoing, the school was not in a position to exclude the pupil for the alleged crime, however, the police warned the school that:
“[A Pupil] is still under investigation for the offence of rape.
He does not have any conditions in place.
If he was found to be contacting the victim in regards to the offence, directly or via third-party he would be arrested for a further offence.
It has not be [sic] a request from police that he be excluded from school, I was advised this was the policy at the time.”
The school subsequently excluded A Pupil, not for the alleged offence itself, but for "...sending obscene pictures of a sexual act involving a minor, to another student who is the alleged victim of such an act". The school also determined that "allowing [A Pupil] to remain in the school would seriously harm the education or welfare of others in the school".
What happened next
The parents of A Pupil appear to have done all they could to oppose the exclusion. Written representations were made to the panel of the governing body considering the decision. A representative of A Pupil questioned the headteacher at these meetings. When the governors upheld the decision to exclude, there was an appeal to the Independent Review Panel (IRP), and the judgment explicitly mentions the involvement of solicitors. Curiously, however, reluctance by one of A Pupil’s parents (or their representatives) to agree to a remote video hearing during Covid meant that the IRP hearing did not take place until months after A Pupil had finished year 11 and started college. By this time, (and about a year and a half after the investigation had begun) the police had decided not to take any further action against A Pupil over the original allegations. It is not entirely clear to me how, given that A Pupil did not deny having or sharing “indecent images of sexual acts involving a minor”, there was no charge for this offence. There was no prospect of A Pupil being able to return to the school given his age. Nevertheless, the IRP asked the governing board to reconsider its decision because:
there had not been a written risk assessment due to bureaucratic obstacles and Covid-related delays;
police investigations had made it hard for the panel of governors to consider all the evidence.
The panel of governors reconsidered their decision and, unsurprisingly given that it was undisputed that A Pupil had the images on his phone and had shared them, decided to uphold their original decision. There are many complications in this case. The standard of evidence for exclusions is "the balance of probabilities" not proof beyond a reasonable doubt. It was on the “balance of probabilities” that governors concluded that A Pupil was responsible for the alleged victim being sent a video of child abuse. There is an argument here that, given the police did not take action, A Pupil should also avoid anything negative appearing on his "educational record". But, of course, just because somebody isn’t convicted of a criminal offence, it does not mean they did nothing that could be grounds for exclusion. It was undisputed that A Pupil had the images on his phone; had shared the images, and that the distribution of the images had caused distress to the complainant in the rape case.
The panel took the view before, and continued to do so now, that, given the context of the allegations and that it is not in dispute that [A Pupil] held the images on his phone, interactions between the girl and [A Pupil] had the real potential to cause significant distress to her, however unintentional or casual the interaction. This distress would be even more likely and significant within the overall circumstances of an allegation of rape which was at the time being actively investigated by the police and in which [A Pupil’s] involvement had been suspected, especially as the girl was below the age of consent. The panel were concerned that during their hearing, and subsequently at the appeal and in all submissions, very little consideration of the impact on the victim has been evidenced by [A Pupil], even around the admitted holding of sexual images.
It should be noted that, if the aim was to keep A Pupil's educational record clean, there were other options available which A Pupil's mother rejected. This had been discussed in the original decision of the panel of governors:
The Panel noted that the school had previously discussed the possibility of alternative arrangements with [the Claimant], recognising the significant limitations of long-term use of the “inclusion room”. [The Claimant] was opposed to a managed move to a boys’ school, and the school was minded that given the advice it had received regarding the serious safeguarding situation, it was not considered suitable to arrange a managed move to a mixed sex school. Whilst the Panel noted that at the time of the Hearing [the Claimant] had not changed her view, it is of the view that a discussion with both ought to have taken place and might have helped explore other options and to help all parties understand the situation but on the balance of probabilities it would not have altered the outcome. The Panel heard how the clear preference of the parent was, and remains, to have [A Pupil] return to mainstream school.
And it still wasn’t over
The final chapter in this saga is perhaps the most revealing. Even though it was far too late for A Pupil to return to the school, a case for judicial review was pursued in the High Court. Efforts were made to overturn the exclusion on three grounds. Firstly, a risk assessment hadn't been completed. This was despite the fact there were good reasons for this, and that it had been A Pupil's parent who objected to producing a risk assessment when the panel of governors was reconsidering their decision. Secondly, it was argued that the panel of governors should have reconsidered the exclusion decision from scratch, rather than just addressing the points made by the IRP. This argument involved a novel interpretation of the exclusions guidance, rather than an established procedure. Thirdly, it was argued that the school was biased against Pupil A. None of these grounds convinced the court, and the request for legal review was dismissed.
I encourage you to read the judgment, but my summary (and I have no legal training) would be that the complaints here were based on technicalities that were beyond the capacity of a school to address. Some points in the judgment emphasise that complaints were made about decision-makers not using correct legal language:
This view was not expressed in the language that a lawyer would use, but the Panel was comprised of educationalists, not lawyers.
.... it was not improper for a Panel member to consider whether the requirement to record the risk assessment in writing was a “technicality” (using that word as a layperson would to mean that it was a procedural rather than a substantive matter).
This gives the impression that those who upheld the exclusion decision were criticised for not having the legal expertise of professional lawyers. The whole case here looks like an attempt to make it as difficult as possible for schools to exclude. There was little doubt that Pupil A's behaviour (regarding the images on his phone) was grounds for exclusion; there was only doubt over whether the school had done all the right paperwork and used all the correct language.
Are we the baddies?
While some of the blame should probably go to the family of A Pupil, it is worth noting that their lawyers, at least in the High Court, were "instructed by Just For Kids Law". This is a group that campaigns against school exclusions. I believe that the legal action in this case risked making schools far less safe, particularly for victims of sexual violence.
Inevitably, Just For Kids Law is funded by respectable charities, who are probably unaware that they may be helping to fund cases of this type. I was aware Lewis Hamilton's Mission 44 charity had funded Just For Kids Law. School leaders should be aware that Just For Kids Law also appears to receive funding from BBC Children in Need and Comic Relief. These are two charities for which schools do a lot of fundraising. It's disturbing to think that schools could be raising money to fund legal action against schools for daring to keep their pupils safe.