2 February 2015
Just for Kids Law welcomes withdrawal of Department for Education guidance making it easier for schools to permanently exclude pupils
The Department for Education has today (2 February) announced it is withdrawing controversial new child exclusion guidance, following the threat of legal action by Just for Kids Law, supported by Communities Empowerment Network.
The changes to existing exclusion guidance were introduced on 5 January 2015, without consultation or warning, and removed the stipulation that schools should use permanent exclusion only ‘as a last resort’.
Under the previous guidance, introduced in 2012, a child should only be permanently excluded from school in circumstances where allowing them to remain would ‘seriously harm the education or welfare of the pupil or others in school’. Under the January 2015 guidance, this threshold was substantially lowered to: ‘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.’ [emphasis added]
Just for Kids Law believes the new policy was unlawful, because of the failure to consult before its introduction; and because it takes no account of the likely disproportionate impact on ethnic minority pupils and children with special educational needs (contrary to the DfE’s Public Sector Equality Duty).
Just for Kids Law sent Department for Education lawyers a ‘pre-action protocol’ letter on 19 December 2014, 10 days after the new guidance was first announced, setting out our concerns and indicating that we intended to challenge the changes in the high court, if they went ahead.
Despite receiving this letter, the new guidance was introduced on 5 January 2015; Just for Kids Law wrote a second letter the same day giving more details about our concerns, and asking for a detailed response before beginning legal action.
On 30 January 2015, we received a letter from the Department for Education lawyers indicating the guidance was to be withdrawn on 2 February, by school reform minister Nick Gibb.
The Department for Education wrote:
‘The Department [for Education] is concerned 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 for it to be reconsidered to make absolutely sure that all relevant matters have been taken into account.’
The letter added that ‘equalities issues will form an integral part of that reconsideration.’
Just for Kids Law education solicitor Rachel Knowles said:
‘We are pleased and relieved that the government has now withdrawn these changes, which would have been highly damaging to many vulnerable young people. We are encouraged to hear the department say that equality issues will be at the heart of any new guidance, and look forward to a full public consultation on the issue.’
Just for Kids Law was supported in its challenge to the guidance by Communities Empowerment Network, a charity which supports parents whose children have been excluded from school.
CEN wrote to government on 19 January 2014 saying:
‘CEN can provide overwhelming evidence that the exclusion system impacts disproportionately on ethnic minority pupils and their families, as well as those with special educational needs, some of which also have a disability.’
Just for Kids Law has been approached by nine children and their families who have been permanently excluded from school since the introduction of the new guidance on 5 January.
Rachel Knowles said:
‘The number of children who have come to us since the changes, must only be a tiny proportion of those affected nationwide. We call on the Department for Education to clarify as a matter or urgency what happens to children in this situation, so their education is not disrupted any more than necessary.’
Copies of the Government Solicitors’ letter and Just for Kids Law’s pre-action letters are available on request.
For more information, contact: Fiona Bawdon: FionaBawdon@justforkidslaw.org or Caroline O’Dwyer carolineo’firstname.lastname@example.org 020 3174 2279 mobile: 07984 095793
NOTES FOR EDITORS
- Just for Kids Law is an award-winning charity which provides legal and other support to young people in difficulties with the law and campaigns for improvements in youth justice www.justforkidslaw.org
- The previous guidance will now be reinstated and is called ‘Exclusion from maintained schools, Academies and pupil referral units in England: A guide for those with legal responsibilities in relation to exclusion’ and was introduced in September 2012.
- Communities Empowerment Network (CEN) provides advice, support and representation following school exclusions www.cenlive.org
- Just for Kids Law was represented pro bono by Steve Broach, a social welfare law barrister at Monckton Chambers.
- CEN were advised pro bono by Anthony Robinson, consultant solicitor with Scott-Moncrieff & Associates.