S.C. (A Minor) v Secretary General of the Department of Education and Skills

• Jurisdiction: Ireland
• Judge: Ms Justice Ní Raifeartaigh
• Judgment Date: 30 June 2017
• Neutral Citation: [2017] IEHC 847
• Court: High Court
• Docket Number: RECORD NO: 2017/156 JR
• Date: 30 June 2017

[2017] IEHC 847

THE HIGH COURT

Ní Raifeartaigh J.

RECORD NO: 2017/156 JR

S.C. (A MINOR, SUING BY HIS MOTHER AND NEXT FRIEND N.C.)

Applicant

AND

SECRETARY GENERAL OF THE DEPARTMENT OF EDUCATION AND SKILLS, SEAN SLOWEY, HILDA MCHUGH

AND

PAT DELEA

Respondent

THE BOARD OF MANAGEMENT OF ST. MUNCHIN'S COLLEGE

Notice Party

Judicial Review – Education Law – De Novo Appeal – Applicant seeking an order quashing the decision of the Appeal Committee confirming his expulsion from secondary school – Whether the Appeal Committee had properly reviewed the case and reached their own decision without relying on the decision of the school board

Facts: The applicant, S.C., was a 14-year-old boy who was expelled from St. Minchin’s Diocesan College in Limerick for behaviour including the smoking of a cannabis joint. The initial decision to expel S.C. was made after a hearing by the Board of Management. During the hearing it was submitted, inter alia, that S.C. had smoked the joint outside of school premises and therefore the behaviour did not violate the cited school policy. The decision of the Board was appealed to an Appeal Committee who upheld the decision to expel. The applicant sought judicial review of the Appeal Board’s decision arguing that there was procedural unfairness, objective bias, and that the decision was disproportionate. The applicant argued that procedural unfairness at the time of the Board of Management hearing was relevant as the Appeal Committee relied heavily on the Board’s decision when reaching their conclusion.

Held by Ní Raifeartaigh J that an Appeal Committee established pursuant S.29 of the Education Act 1998 should focus its decision on the behaviour of the pupil and the context within which that behaviour occurred. Although stating that a denial of fair procedures can undermine the fairness of the decision making process, Ní Raifeartaigh J held that the relevant decision making process for the court to review was that of the Appeal Committee and not the Board of Management. The Appeal Committee hearing is a de novo hearing, which requires the appellate body to exercise its own judgment without any regard to the decision made by the first instance body. Ní Raifeartaigh J was not satisfied that the Appeal Committee had reached its own independent conclusions, specifically on the factual issue of whether S.C. had smoked on the school premises. The focus of the should have been whether the child’s behaviour warranted expulsion, not whether the Board’s decision was justified. Decision of the Appeal Committee quashed and matter remitted for rehearing by a newly constituted Appeal Committee.

Relief granted.

JUDGMENT of Ms Justice Ní Raifeartaigh delivered on the 30th day of June 2017

1 This case concerns the expulsion from secondary school of a 14-year old boy. It comes before the Court by way of judicial review proceedings in respect of a decision of an Appeal Committee, established by the respondent pursuant to section 29 of the Education Act 1998, upholding the decision of the school in question to expel the child. It is alleged that the decision of the Appeal Committee is invalid by reason of a number of breaches of fair procedures; that the decision itself was disproportionate; and that an incident occurred at the conclusion of the hearing which gives rise to a problem of objective bias on the part of the Committee.

2 In broad terms, it may be said that the immediate precipitating factor for the child's expulsion related to the smoking of a cannabis joint, but that there were previous issues, such as two incidents for which he had been suspended, and a history of “mitching” from school. At the time of his expulsion, the child was in second year at the school and was 14 years old. He has not attended school since his expulsion in May, 2016, although he has received some home tutoring and attends a study club in the University of Limerick. To date, he has not been able to secure a place at another school in Limerick.

3 The applicant child will be referred to throughout this judgment as S.C. or simply S. His mother will be referred to as Ms. N.C.

The school's Code of Conduct and Expulsion Policy

4 The Code of Behaviour for St. Munchin's Diocesan College includes the following within its examples of unacceptable behaviour: ‘Smoking in school, out of school while in school uniform or on school trips and school related activities’ (emphasis added) and ‘The use/misuse of drugs as defined in the school's substance abuse policy.’

5 In turn, the ‘Policy on Substance Use’ for St. Munchin's College provides:

‘Students using or found in possession of illegal drugs will be removed from class or current school activity and An Garda Síochána and the students” parents/guardians will be informed. Furthermore, students suspected of using or being in possession of illegal drugs are liable to be removed from class or school activity pending an inquiry. The Principal and/or Deputy Principal and the appropriate Year Head should be informed at once and the student's parents/guardians requested to come to the College as soon as possible. The incident of use or possession will be investigated as fully as possible and the findings carefully recorded. Confidentiality should be observed during the period of investigation. In some cases it may be necessary to seek outside assistance, such as legal advice and/or the involvement of An Garda Síochána. A student using or in possession of illegal drugs will be suspended. However, parents need to be aware that the student may be expelled for the offence.’

6 The school's Suspension and Expulsion Policy includes under the heading of ‘Suspension’ certain examples of circumstances under which suspension may be imposed, which include: ‘Smoking anywhere in school uniform and/or on school outings’; ‘the possession of alcohol or any illegal substance on school premises or at school events’ (emphasis added); ‘possession, use of, or supply of drugs or misuse of any substance in the school grounds, on school trips or during any school related activity. This also applies to students coming and going to school and at any time in school uniform.’ (emphasis added)

7 Under the heading “Expulsion”, the same document states:

‘Expulsion is the ultimate sanction imposed by the school on a student and as such, will only be exercised by the Board of Management in relation to cases of extreme indiscipline. In cases where the Principal judges that a student's actions are such that expulsion should be considered, the Principal will refer the matter to the Board of Management. Given the severity of the potential sanction, the school, in accordance with the principles of natural justice, will investigate extreme indiscipline cases thoroughly in advance of any hearing that could result in expulsion.

Expulsion will be considered in cases where the indiscipline of a student is so pervasive that teaching and learning become extremely difficult and where school authorities have tried a series of other interventions, and believe they have exhausted all possibilities of changing the student's behaviour. Such cases include but are not limited to:

• The student being so disruptive that he is seriously preventing other students from learning.

• The student being uncontrollable or grossly insubordinate to school management or other staff members and not amenable to any form of school discipline or authority.

• The student's behaviour being a danger to himself or to others.

• When guarantees of reasonable behaviour following repeated suspensions are not forthcoming or are not being met.

• The student's conduct acting as a source of serious bad example and having an adverse influence on other students in the school.’

8 It goes on to provide for exceptional circumstances where the Board may form the opinion that a student should be expelled for a first offence:

‘The kinds of behaviour that will result in a proposal to expel on the basis of a single breach of the Code of Behaviour include but are not limited to

• A serious threat of violence against another student or member of staff.

• Any act of violence or physical assault.

• Supplying drugs to others in or out of school.

• Sexual assault.

• Sexual harassment.

In the interest of ensuring a fair and even-handed system for the imposition of expulsion, the Board of Management will take account of the following factors in determining expulsion:

• The nature and seriousness of the behaviour.

• The context of the behaviour.

• The impact of the behaviour.

• The interventions tried to date.

• Whether expulsion is a proportionate response.

• The possible impact of the expulsion.’

9 As regards the procedures prior to expulsion, the document provides as follows:

‘Part A: A detailed investigation will be carried out under the direction of the Principal

In investigating an allegation, in line with fair procedures, the Principal will:

• Inform the student and her parents/guardians about the details of the alleged misbehaviour and that it could result in expulsion.

• Give parents/guardians and the student every opportunity to respond to the complaint of serious misbehaviour before a decision is made and before a sanction is imposed.

Part B: A recommendation will be given to the Board of Management by the Principal

Where the Principal forms the view, based on the investigation of the alleged misbehaviour, that expulsion may be warranted, the Principal makes a recommendation to the Board of Management to consider expulsion. The Principal will:

• Inform the parents/guardians and the student that the Board of Management is being asked to consider expulsion.

• Ensure that parents/guardians have copies of records of the allegation against the student, copies of records of the investigation and written notice of the grounds on which the Board of Management is being asked to consider the expulsion.

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