RESPONSE BY THE CHILDREN’S LAW CENTRE TO THE ‘SUSPENSION AND EXPULSION PROCEDURES: PROPOSALS FOR CHANGE’ CONSULTATION DOCUMENT (MARCH 2004)

1.0 Introduction

1.1 The Children’s Law Centre was established in 1997. It is an independent non-governmental organisation, which helps children and young people, parents, carers and professionals work with and understand the law relating to children. The Centre is founded upon the principles laid down in the United Nations Convention on the Rights of the Child, in particular:

• Children shall not be discriminated against and shall have equal access to protection.
• All decisions taken which affect children’s lives should be taken in the child’s best interest.
• Children have the right o have their voices heard in all matters concerning them.

The Children’s Law Centres Mission Statement is:

‘The Children’s Law Centre, using the law to promote, protect and realise children’s rights’.

1.2 The Children’s Law Centre is committed to:

1) Compliment existing services provided by the voluntary, community , statutory and legal sectors,
2) Work in partnership with children and other agencies committed to realising children’s rights;
3) Provide a comprehensive and accessible advice service on children’s rights and law as it relates to children and young people;
4) Involve young people in helping direct the work of the Centre through Youth@ clc;
5) Coordinate research and monitor the implementation of the United Nations Convention on the Rights of the Child;
6) Provide education and training programmes to all stakeholders to increase understanding of children’s rights legislation.

1.3 Our work involves day-to-day contact with children and young people, their parents/carers and professionals employed by the Education and Library Board’s regarding education issues.

1.4 The Children’s Law Centre welcomes the circulation of the ‘Suspension and Expulsion Procedures: Proposals for Change’ Consultation Document and the decision by Department of Education to facilitate a public consultation on the current suspension and expulsion procedures in Northern Ireland.

1.5 Our response to the Consultation Document will be particularly focused in relation to the effectiveness of the new proposals in ensuring that children and young people are heard throughout the suspension and expulsion process; that they are afforded a right of appeal to the relevant appeal processes; and that children and young people’s rights in education contained within Article 2, Protocol 1 of the European Convention and the United Nations Conventions on the Rights of the Child are always ensured. We shall also propose some additional amendments to the Consultation Document for consideration by the Department of Education, with the aim of enhancing and protecting the rights of children and young people in the suspension and expulsion process.

1.6 Concluding Observations of the United Nations Committee on the Rights of the Child

1.7 On 4th October 2002, The United Nations Committee on the Rights of the Child published a detailed report of its concluding observations, following consideration of the Governments report to the Committee regarding its compliance with the rights contained within the Convention in the United Kingdom of Great Britain and Northern Ireland.

1.8 Contained within paragraph 46 of this report, are the Committee’s observations in relation to education. It is of significance that three of the principle observations of the Committee are specific to the issues of suspension and expulsion from school. The Committee’s three relevant recommendations to the State are as follows:

a) ensure that legislation throughout the State party reflects Article 12 and respects children’s rights to express their views and have them given due weight in all matters concerning their education, including school discipline;

b) take appropriate steps to reduce temporary or permanent exclusions; ensure that children throughout the State have the right to be heard before exclusion and have the right to appeal against temporary and permanent exclusion , and ensure that children who are excluded do continue to have access to full time education;

c) undertake all necessary measures to remove all inequalities in educational achievement and in exclusion rates between children from different groups and to guarantee all children an appropriate quality education.

2.0 Involvement of children and young people in the consultation process

2.1 In order to comply with the requirements of S.75 of the Northern Ireland Act 1998, the Children’s Law Centre recommends that the current consultation document should be produced in a child-friendly format to allow for consultation with children and young people, who are the S.75 grouping most likely to be affected by the proposals contained within the consultation document. Leaflets should also be made available in different formats to include languages other than English, audio format and Braille. We would further suggest that the consultation period be extended for a reasonable period of time to allow for such consultation to take place.

2.2 With reference to paragraph 8.3 of the Consultation Document, it is stated that in addition to the current consultation, specific exercises have been commissioned to seek the views of pupils and parents. We would recommend that details of these exercises and an evaluation of the responses received be published to all interested parties to the consultation for consideration.

3.0 Summary proposals contained within the ‘Suspension and Expulsion Procedures: Proposals for Change’ Consultation Document at Section 7:

3.1 Paragraph 7.1 – Suspension and Expulsion Schemes

3.2 The Children’s Law Centre generally supports the proposal that all schools should be required by law to use the same model scheme for the suspension and expulsion of pupils and that a universal scheme should be prepared by the Department of Education in consultation with all interested parties.

3.3 A wide consultation process should take place once the universal scheme has been drafted, which shall include consultation with children and young people, their parents and voluntary and community sector organisations representing children and young people. The Department of Education should produce a child-friendly draft of the universal scheme for the purposes of consultation with children and young people.

3.4 The Department of Education should also consider relevant guidance issued by the Department for Education and Skills in England and appropriate guidance issued in other jurisdictions. The Children’s Law Centre would recommend reference to ‘Improving Behaviour and Attendance: Guidance on Exclusion from Schools and Pupil Referral Units’ (DfES Guidance 0354/2004), (last updated in March 2004), which includes factors to be considered before making a decision to exclude a pupil from school; alternative strategies and early intervention; exceptional circumstances where a one off incident may lead to a permanent exclusion: the LEA’s responsibility to provide full time education for excluded pupils and reintegration of excluded pupils into mainstream schools; and new funding arrangements for money to follow the excluded pupil into a suitable alternative educational placement.

3.5 The Children’s Law Centre does not support the proposal that an employing authority may apply to the Department of Education for approval to detract from or vary its application of the universal scheme. The universal scheme should be agreed with all employing authorities in the first instance, otherwise we will return to the current situation where we do not have a uniform approach to suspension and expulsion in all grant aided schools.

3.6 Paragraph 7.2 – Initial and extended suspensions

3.7 The Children’s Law Centre would welcome the publication of specific guidance for schools on the proper use of the suspension sanction. Such guidance should build on the guidance currently available in ‘Pastoral Care: Promoting Positive Behaviour’ which indicates some of the considerations which should be made prior to a decision to suspend and details some types of behaviour which should not normally lead to suspension.

3.8 We strongly recommend that the pupil’s rights in the suspension process should be placed on a statutory footing and the Suspension and Expulsion (NI) Regulations 1995 should be amended to ensure that children’s and young people’s voices are always considered as an integral part of the suspension process. A pupils should always be given the opportunity to state their version of events and to explain their behaviour e.g. if there was any provocation involved, in advance of a principal’s decision to suspend.

3.9 We recommend that the 1995 Regulations should also be amended to include a requirement that suspension from school should only ever be used as a sanction to address a pupil’s behaviour. E.g. it should never be used to allow time to investigate an incident further.

3.10 Recently updated English guidance entitled ‘IMPROVING BEHAVIOUR AND ATTENDANCE; GUIDANCE ON EXCLUSION FROM SCHOOLS AND PUPIL REFERRAL UNITS’ identifies some exceptional circumstances where a pupil may be removed from school, although the pupil is not subject to a formal exclusion. There are two situations where this measure is deemed to be appropriate under English guidance:

a) Where a pupil is accused of committing a serious criminal offence, which took place outside the school’s jurisdiction. Although the principal would have insufficient evidence to warrant excluding a pupil from school, there may be compelling reasons for removing the pupil, in the interests of the individual and the school community as a whole, pending completion of a police investigation . Head teachers may authorise the pupil’s absence for a fixed period with the agreement of the parents and are also empowered under Section 29(3) of the Education Act 2002 (England) to arrange for pupils to be educated off site, with or without the consent of the parents. The head teacher is responsible for the continuing education of the pupil during this period and must keep the situation under review.

b) On health and safety/medical grounds. If a pupil causes an immediate and serious risk to other pupils and staff the principal may send them home from school following consultation with the parents. This measure would only be appropriate on medical grounds .

3.11 A further circumstance that CLC has identified as problematic for schools is where an allegation is made by one pupil against another, of sexually inappropriate behaviour in the school. A principal would be required to instigate the school’s child protection procedures and it is likely that an investigation in respect of the allegations would be conducted by social services and/or PSNI. We would recommend that schools should not suspend a pupil from school pending the outcome of these investigations.

3.12 None of the above scenarios fall within current suspension and expulsion procedures and there needs to be consultation regarding the appropriate measure to be taken by schools to ensure the safety and welfare of the individual pupil and other pupils at the school. We recommend that specific guidance should be issued by the Department of Education clarifying a school’s duties and responsibilities in these situations. It would also be necessary to ensure that there is a mechanism for appeal against any decision taken by a principal in such circumstances.

3.13 Paragraph 7.3 – Monitoring of suspension procedures and practice

3.14 CLC generally welcomes the proposal that monitoring of procedures should be co-ordinated by an external agency rather than by the schools. Current Department of Education Guidance contained within Paragraph 158 of ‘Pastoral Care: Promoting Positive Behaviour’ states that schools should monitor their use of suspension, to ascertain if there are any emerging patterns of suspension and where necessary to institute remedial action.

3.15 One of the recommendations that CLC made in our Human Rights Audit of Education Law chapter entitled ‘The Law Relating to School Suspensions and Expulsions in Northern Ireland’ (submitted to the DE in 2002) was as follows:

‘Effective monitoring strategies must be put in place by CCMS and the Education and Library Boards/Inspectorate to ensure that all principals and Boards of Governors act in compliance with the law relating to suspensions and expulsions. The Department of Education should introduce regulations and appropriate sanctions to ensure that school managers are acting with procedural propriety’.

3.16 CLC would be agreeable with the proposal that ETI be responsible for overseeing the monitoring of school’s procedures and practice, however, we would be concerned that information would be collated and reported upon on an annual basis. We would recommend that ETI produce an annual report and statistical analysis of the number of suspensions and expulsions in each Board area and the reasons for suspension and expulsion. If such information was published annually it could then be used to inform strategies for dealing with emerging disciplinary issues in schools. (We note from paragraph 7.21 of the report that the final proposal of the Working Group is that suspension and expulsion data be collated and used to inform best policy and practice throughout the education sector).

3.17 We further recommend that the Department of Education should consider what may constitute an appropriate sanction for any school that consistently fails to comply with the regulations and guidance.

3.18 Paragraph 7.4 - Education provision during periods of suspension

3.19 We refer to the proposal to amend Article 86 to clarify the school’s responsibility to provide education to a suspended pupil. We agree with current departmental guidance which states that during a period of suspension, the school should set collect and correct a pupil’s work . Indeed, the school should be responsible for the pupil’s education for as long as the pupil remains on the school roll and the school is receiving funding to maintain that pupil’s education. However, in any circumstance where the school defaults in its duty to provide a suitable education, it is ultimately the responsibility of the Education and Library Board to step in and make educational provision for the child. Therefore, we would support the introduction of the school’s responsibility as a statutory duty, provided that this does not in any way dilute the overarching responsibility of the Education and Library Board. There will always be circumstances where it is impractical for a school to make appropriate provision for a child otherwise than at school during a period of suspension. This may be due to a lack of resources available to the school, for example, where a child has a specific learning difficulty, attention deficit disorder or a statement of special educational needs.

3.20 Paragraph 7.5 – Good practice guidance for school

3.21 CLC welcomes guidance which would define the school’s responsibility in provision of work to be completed at home and facilitating the taking of any public examinations.

3.22 We also note that at paragraph 4.5 of the Consultation Document that it is recommended that the Department issue guidance, specifying that ‘a pastoral support programme should be in place by the school to help reintegrate pupils who have been suspended from school for a continuous period in excess of 10 days’. Building on this proposal, we recommend as follows:

3.23 In the case of any suspension from school, the principal should be responsible for the immediate preparation of an educational plan for the suspended pupil detailing the reason for suspension, the type of educational provision to be made, any steps to be implemented by the school to assist the pupil’s reintegration to school and, where necessary, details of any advice or assistance sought and/or received from outside agencies. This education plan should take effect from the date of suspension.

3.24 In relation to longer periods of suspension (for more than 15 days), additional guidance should be introduced detailing the shared role between the school, the local Education and Library Board and any other appropriate agencies, in ensuring that there is an ongoing review of the educational provision for the suspended child, plans for reintegration to school after the period of suspension and any support measures which may be necessary to assist a smooth reintegration process.

3.25 English guidance recommends that a head teacher, when considering whether to exclude a pupil for more than 15 days, should plan as follows:

a) how the pupil’s education will continue during the period of exclusion;
b) how the time might be used to address the pupil’s problems; and
c) together with the school’s maintaining LEA, what educational arrangements will best help with the pupil’s reintegration into the school at the end of the exclusion…

The guidance also recommends that the head teacher should arrange a reintegration meeting with parents at the end of the period of exclusion to consider the parent’s role in assisting with reintegration into school.

3.26 In accordance with recommendations that CLC made in our Human Rights Audit of Education Law chapter entitled ‘The law relating to school Suspensions and Expulsions in Northern Ireland’, CLC continues to recommend that any pupil may be only suspended from school beyond a period of 15 days with the approval of the Education and Library Board.

3.27 CLC’s recommendations for procedures to review suspensions and educational provision being made after a period of 15 days may be summarised as follows:

• Amendment of current legislation to reduce the maximum period of suspension, which may be authorised by a school’s Board of Governors to 15 days.

• For an inquiry panel to be set up by each Education and Library Board, (perhaps with a similar constitution to the Suspension and Expulsion Panel currently set up by the Board to consider decisions regarding he expulsion of pupil’s from controlled schools), to consider whether it is appropriate to continue the period of suspension beyond 15 days and the issue of what educational provision is being made to the pupil while they are out of school.

• A school Board of Governor’s should only be in a position to suspend a pupil for more than 15 days, where they have attained the approval of this inquiry panel to do so. The panel must be satisfied that adequate educational provision is being made to the suspended pupil, for the period while the pupil is out of school.

• If it is clear from the panel’s investigations and enquiry that a pupil is not receiving adequate educational provision during his/her period of absence form school, they may direct the Education and Library Board to make suitable arrangements for educational provision, in accordance with its duties under Article 86 of the Education (Northern Ireland) Order 1998, pending satisfactory resolution of the matter.

3.28 Paragraph 7.6 – Appeals against the decision to suspend

3.29 The current law in relation to school suspensions provides that a child may be excluded from school for a period of up to 45 days, yet there are no procedural rights of appeal open to either parent or child against a decision to suspend. The Children’s Law Centre has grave concerns in relation to this matter, as it would appear to contravene the right to natural justice and due process, under our common law and is in breach of the recommendations of the United Nations Committee on the Rights of the Child.

3.30 CLC’s recommendations for procedures to appeal against decisions to suspend may be summarised as follows:

• Legislation should be amended to introduce a right of appeal against suspension from school. The right of appeal would be in respect of a decision to suspend a pupil for any period.

• An independent inquiry panel (perhaps with a similar constitution to the newly constituted Expulsion Appeals Tribunal or as part of it’s new remit) should be set up (by each Education and Library Board or on a regional basis) to consider the circumstances surrounding a school’s decision to suspend a pupil from school and adjudicate on the lawfulness of the suspension imposed.

• The panel should be given powers to order reinstatement of a child to school, where the suspension is found to be unlawful.

• In accordance with Article 12 of the United Nations Convention on the Rights of the Child, the right of appeal should be accessible to children and young people as well as their parents.

• Parents and children should be given the right to appear at the independent inquiry panel hearing and make any representations accordingly. Parents and children may require representation at the hearing.

• Formation of such a panel would present an alternative form of redress for pupils/parents, to the existing Article 101 complaint process and the right to initiate judicial review proceedings, both of which have been criticised as inappropriate measures by the Department of Education.

• New regulations should be drafted detailing the constitution, procedures and criteria to be considered by the panel in reaching its decision.

3.31 Paragraph 7.7

3.32 With reference to the comment that school suspensions should not be imposed until the school has established all the facts, English guidance recommends that where a parallel criminal investigation/proceedings are likely in respect of an incident which occurred in school, the head teacher and governing body may make a decision to suspend a pupil on the basis of the facts available to them. The expulsions appeal panel may however adjourn its decision pending the outcome of the criminal investigation/proceedings . It is necessary for the position to be clarified within the Northern Ireland jurisdiction in similar circumstances.

3.33 In our Human Rights audit report, CLC previously recommended that the Department of Education should introduce statutory regulations and supporting guidance to assist all staff in addressing how to conduct proper investigations into incidents, keeping adequate pupil records and following proper procedures when taking witness statements. We would also recommend that this information be incorporated into the proposed ‘universal scheme’.

3.34 The Department of Education may also wish to consider implementing a course of INSET training to advise and assist teachers in compiling accurate records and to address procedures for taking witness statements.

3.35 We recommend that the pupil’s rights within the suspension procedure should be put on a statutory footing. New legislation would reflect Article 12 of the United Nations Convention of the Rights of the Child and the United Nations Committee’s recommendation that children should be afforded the right to express their views and to have them given due weight in all matters concerning their education, including school discipline. In advance of any decision to suspend, the principal should ensure that the pupil is afforded an opportunity to give their version of events and confirm any reasons for their behaviour.

3.36 We further recommend that a new statutory duty be introduced, requiring a principal to consult with parents/guardians prior to making a decision to suspend their child from school. In the interests of natural justice and procedural fairness, it is our view that parents/guardians should be informed of any allegations made against their child and provided an opportunity to respond, prior to a decision to suspend, particularly where the child cannot reasonably be expected to protect their own interests due to age or capacity.


3.37 In the recent Northern Ireland case of M (a Minor), Re Application for Judicial Review , the court considered the suspension of an 11 year old child for ‘knowingly handling and promoting cannabis resin’ in school. The court examined the procedures followed by the school principal in detail and concluded that the decision to suspend M was unfair. The reasons for the decision may be summarised as follows:

a) There was sufficient time for consultation with parents, as the suspension was not imposed with immediate effect. The principal did not apparently consider the case as one that called for an exceptional immediate suspension since the incident occurred on the 14th April and the decision to suspend was not made until the 15th April.
b) The child in this case was too young to protect his own interests and so the parents should have been informed.
c) There was no evidence that alternative measures to suspension were considered.
d) All of the children involved in the incident were given the same sanction, irrespective of their individual role. The court referred to the decision as a ‘group suspension’.
e) There was no evidence that any further investigation took place following the decision to suspend M for five days.
f) At the hearing, the school did not purport to stand over the reason for suspension and accepted that M was not knowingly promoting drugs in school.

3.38 The Consultation Document refers to ‘time out periods within school’ to allow in-school investigations to be completed. We understand that this may be proposed for a period of up to two days. We would recommend that guidance should require principals to ensure that parents are informed of this decision in advance; appropriate supervision arrangements are put in place; and that the child receives continuing education and access to the Northern Ireland Curriculum during the course of an investigation.

3.39 If the proposal to introduce ‘time out periods within school’ were to be given effect and appropriate facilities and resources were made available to all schools to allow in-school investigations to be completed, it is difficult to envisage any circumstances where a principal would need to suspend a pupil from school with immediate effect.

3.40 Paragraph 7.8 – Advice leaflets

3.41 CLC welcome the publication of advice leaflets for parents. We would also recommend that the Department of Education make leaflets available in a child-friendly format for children and young people. Leaflets should be made available in different formats to include languages other than English, audio format and Braille.

3.42 Paragraph 7.9 – Differential impact of expulsion procedures

3.43 CLC would welcome the creation of a ‘common expelling authority’. It is proposed that all of the existing schemes for suspension and expulsion be unified to produce one ‘universal scheme’ and one body should therefore be responsible for ensuring that proper procedures are followed by all grant-aided schools. We are agreeable that this common expelling authority may take the form of an independent panel, operating in the same manner as the current Suspensions and Expulsions Panel in the Boards for controlled schools.

3.44 In addition to the setting up of this Independent Panel, we also welcome the introduction of a team of independent assessors who may act as advocates for parents and children throughout the course of the suspension and expulsion process. We feel that this idea merits further consideration by the Department of Education as a means of ensuring that all parents and particularly children, have access to independent representation. The two proposals of the Independent Panel and the independent assessors should not be mutually exclusive.

3.45 Paragraph 7.10 – Expulsion – The Threat

3.46 Departmental guidance already states ‘Schools should not (therefore) suggest that the parents should transfer their child to another school, unless formal procedures have been instituted. The parents must be informed that they have the right to appeal against the expulsion to an independent appeal tribunal, and be told how to do this. If it is found that the school has not complied fully with current legislation and the terms of the relevant scheme, the appeal will be upheld’ .

3.47 The universal guidance should stipulate in strong terms that those pupils should never be unlawfully excluded from school and that schools should have no reason to deviate from the procedures detailed in new regulations and the universal scheme.

3.48 Paragraph 7.11

3.49 CLC welcome the publication of advice leaflets for parents. We would also recommend that the Department of Education make leaflets available in a child-friendly format for children and young people. Leaflets should also be made available in different formats to include languages other than English, audio format and Braille.

3.50 Paragraphs 7.12 & 7.13 – The Consultation Process

3.51 On consideration of the current guidance in respect of the consultation process, ‘Pastoral Care in Schools: PROMOTING POSITIVE BEHAVIOUR’ simply recommends that every effort should be made to arrive at satisfactory plans for the child’s future education . The current CCMS ‘Scheme for the Suspension and Expulsion of Pupils’ (Revised May 2002) is more prescriptive. Appendix 9 of this document sets of the Chairperson’s agenda for the pupil consultative meeting. There is a checklist included for consideration of appropriate future educational provision. Appendix 10 provides a pro forma for completion by the Chairperson on foot of which the Chair should record a ‘Summary of Discussions’ relating to the child’s future educational provision.

3.52 CLC recommends that current regulations be amended to clarify procedures to be followed at the consultative meeting to include:

a) Details of options for future education which must be considered at the consultative meeting;
b) Placing a new statutory duty on the Chairperson to make a formal written record of the options considered;
c) Introducing a new statutory duty for the child to be invited to attend the consultative meeting and for their views on future educational provision to be considered;
d) Introducing a new statutory requirement to give due consideration to any guidance issued by the Department of Education, Education and Library Boards and CCMS, including the Universal Scheme.
e) The regulations (and guidance) should also stipulate the role of independent assessors at the consultative meeting, should they be introduced as means of representation for parents and/or pupils.

3.53 We would also agree that the outstanding issues raised under paragraph 5.14 of the Consultation Document should be addressed in new guidance.

3.54 Paragraph 7.14 – Expulsion Appeal Tribunal

3.55 CLC would agree to the establishment of a regional independent tribunal.

3.56 In relation to the issue of time limits to progress to hearing, it is proposed that appeals should be disposed of ‘without delay’. This reflects the current legal position under Schedule 2, Regulation 4(8) of the Schools (Expulsion of Pupils) (Appeal Tribunals) Regulations (Northern Ireland) 1994.

3.57 We would recommend that the regulations introduced to govern the newly constituted tribunal should stipulate that the tribunal should meet to consider an appeal within 15 days of the date that the appeal notice is lodged. This would reflect the current legal position in England .

3.58 There may be circumstances where it is appropriate to adjourn proceedings beyond the 15 day time limit proposed. This is most likely in circumstances where information is awaited that should be taken into consideration by the tribunal in reaching a decision. The decision to adjourn should be taken by the tribunal panel or by the Chairperson. The pupil and/or his parents should have a right to request an adjournment.

3.59 With reference to the review group findings in paragraph 5.18 of the Consultation Document, we would suggest that with proper planning and resources, a newly constituted independent panel may not experience the same operational difficulties as highlighted by Clerks of the tribunal in Education and Library Boards.

3.60 New regulations will need to be drafted in respect of Independent Tribunal Panel procedures, to include constitution of the panel, the remit of the panel, criteria to be considered, powers of direction, time limits for hearing an appeal and the procedures for any application for adjournment.

3.61 We would agree with the proposals for constitution of the panel contained within paragraph 5.22 of the Consultation Document that there should be a legally qualified Chairperson appointed to the panel on a salaried basis.

3.62 In relation to the training proposals at paragraph 5.23, we would recommend that all panel members also receive specific children’s rights training.

3.63 Section 9 of the Justice (Northern Ireland) Act 2002 requires lay magistrates to complete a course of training approved by the Lord Chancellor or to give an undertaking in writing before appointment. We would recommend that a similar approach be taken in respect of the training of Independent Panel Members. All panel members and particularly the Chair should be required to complete the training provision offered before taking up their duties.

3.64 In addition, we recommend that the new regulations should address the following issues:

1) The child’s right to appeal an expulsion to the Independent Appeal Panel.
2) The child’s right to seek independent representation.
3) The child’s right to attend the hearing and to speak on his or her own behalf if he or she wishes to do so.

We strongly recommend that the Legal Services Commission be approached formally by the Department of Education and asked to consider the issue of granting Legal Aid to children and their parents/guardians to enable them to obtain legal advice and representation for expulsion appeals. The current position is that Green Form advice and assistance may be obtained in respect of expulsion appeals. This does not cover the cost of representation at an Expulsion Appeal Hearing.

3.65 Matters which the Independent Expulsion Appeal Panel may consider in reaching a decision: We would recommend that the new regulations stipulate that the panel should consider substantive and procedural issues leading to the decision to expel.

3.66 With reference to the English guidance on this issue , we would propose that the Independent Expulsion Appeal Panel should be in a position to consider the following:

a) On the basis of the evidence submitted and the representations made, the panel should decide whether, on a balance of probabilities, the pupil did what he or she is alleged to have done:
b) The panel should consider the basis of the principal’s decision and the procedures followed by the principal and the Board of Governors, having particular regard to :

i. Whether they complied with the law;
ii. Whether they had regard to guidance issued by the Department of Education, the local Education and Library Board, CCMS and the Universal Scheme;
iii. Whether they followed the relevant policy documents published by the school;
iv. The fairness of the expulsion in relation to the treatment of other pupils involved in the same incident;
v. The panel should consider whether expulsion was the correct disciplinary sanction to impose in the circumstances;
vi. The panel should decide whether it is appropriate to order reinstatement of the pupil at school, having particular regard to the best interests of the individual pupil and other pupils at the school.

3.67 Paragraph 7.15 – Education provision after expulsion

3.68 CLC welcomes the proposal made and further recommends that legislation be introduced (or that Article 86 of the Education (NI) Order 1998 be amended) placing a new statutory duty on the Education and Library Boards that a pupil should be returned to full time education within 15 days of the date of expulsion.

3.69 We would further recommend that legislation should be introduced or amended to provide specific statutory definitions of what would constitute ‘full-tine education’ and ‘suitable education’ provision by the Board.

3.70 We do not accept the arguments detailed in paragraph 5.28 of the Consultation Document that the Boards should maintain maximum flexibility in the type and quantity of educational provision to be made. Full time provision is specifically recommended in the concluding observations of the United Nations Committee of the Rights of the Child. Resources should be made available to ensure that the Boards have the capacity to ensure full-time education for all expelled pupils. We agree that it may be appropriate to educate some children with the aid of a tailored package, which may include some provision in a mainstream school, complimented by further provision in an alternative education project or a pupil referral unit in order to address the child’s individual needs. Provision could also be supplemented by home tuition to ensure that a wide curriculum is accessible and that the child receives full time hours.

3.71 We accept that there may be some exceptional circumstances where it may not be in the child’s best interests to return within 15days to education on a full time basis. There should be further consultation in relation to the circumstances which may prevent a child from accessing full time education hours and the mechanisms that should be put in place by the Education and Library Board (and any other appropriate agencies) to assess, meet and keep under review such children’s individual needs. The regulations should reflect the findings of this consultation.

3.72 Paragraph 7.16 & 7.17 – Vulnerable pupils

3.73 CLC agrees that expulsion is an inappropriate way of meeting the needs of pupils with special educational needs.

3.74 A separate procedure should be ensured for all children with special educational needs who may be vulnerable to the threat of expulsion from school. The procedure should involve consultation between the principal, school-based SENCO, Special Educational Needs Section staff from the Board, Educational Psychology, Education Welfare, parents and the pupil (and any other appropriate agencies involved with the child) to identify the pupil’s needs and arrange for educational provision to meet these needs. This may include a fresh assessment and/or a review of the child’s current educational placement. CLC recommends that all children who are registered with special educational needs and have been placed by their school on the Code of Practice for Identification and Assessment of Special Educational Needs should be afforded access to this procedure, rather than the normal disciplinary route, which may lead to expulsion.

3.75 CLC recommends the introduction of new guidance which would incorporate the procedures to be followed by schools, in order to identify, meet and to keep continuously under review the changing needs of pupils with special educational needs. Such guidance should reduce the numbers of pupils who may be vulnerable to expulsion from school.

3.76 With reference to the Code of Practice, CLC requests a comprehensive review of the existing document and a public consultation to identify recommendations for change.

3.77 With reference to paragraph 6.2 of the Consultation Document, CLC does not advocate the use of suspension as a measure for respite to allow a school to review its options. This is not an appropriate use of a suspension, which should be a disciplinary sanction only.

3.78 Paragraph 7.18 – Admission to another school

3.79 CLC agrees that schools must comply with a time limit of 15 days to notify parents of any decision regarding an admissions application.

3.80 With reference to paragraph 6.6 of the Consultation Document, all decisions made by schools, in accordance with Articles 13-15 of The Education (NI) Order 1997 should be subject to a right of appeal by parents and pupils.

3.81 CLC recommends that the remit of the Admissions Appeal tribunal be extended to allow appeals against decisions to refuse admission on the basis that admission would be prejudicial to the efficient use of resources; detrimental to the educational interests of the child; or that the child does not meet the academic standards of a grammar school. Article 15(2) of the Education (NI) Order 1997 should be repealed to allow an extension of the tribunal’s remit to hear such appeals. New legislation would need to be introduced to amend existing legislation.

3.82 In any other circumstances where a school refuses admission to a child or fails to respond to an application for admission within the prescribed 15 day period, the Board should direct the school to admit the child to the school, as it is empowered to do so under Article 42 of the Education (NI) Order 1996.

3.83 We would recommend that the Board should direct the school to admit the pupil within a period of 15days of a parents request that the Board issue an Article 42 direction.

3.84 The school should comply with the direction by arranging for the pupil’s admission as a registered pupil with immediate effect. I.e. the next school day after the direction by the Board is communicated to the school.

3.85 We would recommend that Article 42 be amended to include details of the above procedures and time limits proposed.

3.86 The Department of Education should issue guidance to schools detailing the new procedures and reminding schools that it would be unlawful for them to refuse admission, when directed to do so by either the Admissions Appeal Tribunal or the Education and Library Board.

3.87 Paragraphs 7.19 & 7.20 – Prevention strategies

3.88 CLC would have reservations in relation to the proposal that children with behavioural problems may be transferred to another school within a voluntary cluster group so that they may be given a fresh start in a new educational environment. Appropriate safeguards should be in place to ensure that the ‘new’ environment is suitable to meet the child’s individual educational needs.

3.89 CLC would be reluctant to comment further on the proposed formation of voluntary cluster groups until we have sight of the ‘pre-agreed’ rules for schools and an evaluation report in respect of the pilot scheme which is operative within the Belfast Education and Library Board area. We would recommend that this information be published for further consultation by all interested parties (rather than just schools), prior to introduction of this measure as a future preventative strategy.

3.90 Paragraph 7.21 – Suspension and Expulsion Data

3.91 CLC agrees with this proposal.






Should you have any queries in relation to this submission please contact Kathryn Stevenson, Solicitor, at the Children’s Law Centre

Tel No: 028 90 245704
Fax No: 028 90 245679
e-mail: kathrynstevenson@childrenslawcentre.org