The Board and Management of B. National School

• Jurisdiction: Ireland
• Judge: Mr. Justice Richard Humphreys
• Judgment Date: 21 October 2019
• Neutral Citation: [2019] IEHC 738
• Docket Number: [2019 No. 624 J.R.]
• Court: High Court
• Date: 21 October 2019

[2019] IEHC 738

THE HIGH COURT

JUDICIAL REVIEW

Richard Humphreys

[2019 No. 624 J.R.]

BETWEEN

THE BOARD OF MANAGEMENT OF B. NATIONAL SCHOOL

APPLICANT

AND

THE SECRETARY GENERAL OF THE DEPARTMENT OF EDUCATION AND SKILLS, JIM HAYES, BREDA QUEALY

AND

ALAN MCCORMACK

RESPONDENTS

AND

S.B.

NOTICE PARTY

Judicial review – Exclusion – Readmission – Applicant seeking certiorari of the decisions of the appeal committee – Whether the committee failed to address its statutory task

Facts: The child whose conduct was in issue in this case was, at the material time, a student in the applicant school, B. National School. The child assaulted not only teachers but also other students on numerous occasions and this series of attacks culminated in a major incident on 3rd April, 2019. The school board convened that evening and an interim suspension was imposed. A further hearing of the Board took place on 10th April, 2019. The Board met again on 23rd April, 2019 and 28th May, 2019 and decided to exclude the child permanently from the school. On 16th June, 2019, the notice party, the mother, exercised her right of appeal under s. 29(1) of the Education Act 1998. On 21st August, 2019, the appeal committee upheld the appeal and the Secretary General of the Department of Education and Science decided to require the school to readmit the child. The recommendation of the appeal committee was that the student be re-enrolled on limited hours, although the direction of the Secretary General made no reference to limited hours. The High Court (Humphreys J) granted leave on 4th September, 2019, the primary relief sought being certiorari of the decisions of the appeal committee and the Minister. On 25th September, 2019, Humphreys J gave an ex tempore ruling granting relief. On 18th October, 2019, he granted a partial stay on the order made. He took the opportunity to give a formal written judgment.

Held by Humphreys J that the committee failed at the most elementary level to carry out its clear remit and its approach was wholly unlawful. He held that the attempt made on behalf of the respondents to pass off the appeals committee’s fundamentally flawed approach as merely stating context lacked intellectual credibility for two major reasons: firstly, these matters were not stated to be contextual; secondly, the core issues were not dealt with. He held that the decision of the committee was riddled with irrelevancy. He held that if the implementation of the occupational therapists’ recommendations had been relevant, which it was not, that was not put to the principal. He held that the reasons were manifestly irrational. He held that no reasonable person could view the child’s behaviour as anything other than a serious threat to the rights of other students to an education and the right to bodily integrity of both staff and students. He held that no reasonable appeals committee could allow the appeal on the basis of the evidence which had been put before the court. If he was wrong about the decision being irrational and if, which he did not accept, it would be open to a hypothetical appeals committee to consider that expulsion was disproportionate, he held that no adequate reasons were given for the decision that the expulsion was disproportionate. Regarding the complaint that the Secretary General departed from the committee’s recommendation that the re-engagement of the student should be for limited hours initially, Humphreys J noted that there was no stated reason for that departure so if for no other reason than a lack of articulation of reasons, the decision of the Secretary General was flawed on that basis also.

The order made on 25th September, 2019 was that: (i) the order made at the leave stage that there be a reporting restriction under s. 45 of the Courts (Supplemental Provisions) Act 1961 to prevent publication of matters tending to identify the school, the student or the mother would continue; (ii) reliefs D1 to 3 in the statement of grounds regarding certiorari of the decisions and consequential directions would be granted; and (iii) costs would be granted to the applicant against the respondents including reserved costs, to be taxed in default of agreement, certifying for two counsel for the leave application. On 18th October, 2019, Humphreys J granted a stay on the order for costs (which had not been applied for by the respondents until then), and a stay on remittal of the matter back to the appeals committee in the event of an appeal, with liberty to apply.

Reliefs granted.

JUDGMENT of Mr. Justice Richard Humphreys delivered on the 21st day of October, 2019

1 The child whose conduct is in issue in the present case is now an eight year old boy who at the material time was a student in the applicant school. He is on the autistic spectrum. A witness called by the mother at the appeal hearing under s. 29 of the Education Act 1998 said that the child was on the child protection list due to the mother's mental health. The education welfare officer gave evidence that the child was on that list due to neglect, and met the threshold for being taken into care. The school's concern in relation to the child involved a very large number of incidents, mostly of violence, of which there were approximately 37 between September, 2018 and April, 2019.

2 Unhappily, despite the school going to some lengths to manage the child's behaviour, the child's mother made a complaint to the Garda Síochána that the child allegedly had been put in a bathroom at one point. One would certainly not conclude from the material on the papers that the teachers or the SNAs acted inappropriately in relation to the child; and given that the fact that the child assaulted teachers and SNAs on numerous occasions, a complaint to the Gardaí is not necessarily the most satisfactory way of thanking them for their efforts.

3 The child assaulted not only teachers but also other students on numerous occasions and this series of attacks culminated in a major incident on 3rd April, 2019. The class teacher stated in a memorandum to the appeal hearing that “on the morning of the incident in question [C] had made it very clear to me that he had a plan to get us into trouble and was mentioning a ‘plan’ numerous times”. A note of the incident by an SNA exhibited by the respondents noted that according to her “on the bus [C] was saying ‘my mum is cross with the school I'm gonna get this school into trouble’“.

4 In the course of that incident the child assaulted five staff members. One was punched in the face and one struck with a hurley. Two of those staff members required hospital treatment and were absent from work for a period of time. Considerable damage was also caused to the school.

5 The school board convened that evening. The mother attended and an interim suspension was imposed. The principal was to be asked later at the appeal hearing why someone did not just take hold of the child. She replied that there was an incident in 2017 when a child was restrained and it was reported to TUSLA. The advice then was that nobody should restrain a child unless trained to do so, but the staff were against a restraint policy “as they are concerned about allegations being made against them”. That is a sad commentary on the Irish educational system. Allegations of that kind are easy to make and can be hard to disprove and certainly are potentially enormously disruptive for those at the receiving end. It is unacceptable that teachers in very difficult situations can be left exposed in the manner highlighted here.

6 The school has in accordance with s. 15 of the 1998 Act and s. 73 of the Education (Welfare) Act 2000 published a number of policies and codes including a code of behaviour. The code of behaviour relevant to the present case recognises that misbehaving conduct can be minor, serious or gross, and that gross misbehaviour includes assault on a member of staff or a pupil. The code itself recognises the need to protect other children in the school. The National Education and Welfare Board published guidelines in 2008 under s. 23(3) of the 2000 Act relating to expulsion and I will return to those later.

7 A further hearing of the Board took place on 10th April, 2019. The mother was written to and invited to attend and be represented. The Board met again on 23rd April, 2019 and 28th May, 2019 and decided to exclude the child permanently from the school. On 16th June, 2019 the mother exercised her right of appeal under s. 29(1) of the 1998 Act. The notice of appeal does not really address the core statutory issues. The applicant's solicitor states that at the appeal hearing the chair “made it clear that the appeal was to be conducted … without legal representatives” and that “I did attempt to intervene on two occasions. I was quickly rebuked by the chairperson and reminded that I was present as an observer only and not entitled to make representations or address the committee”.

8 According to counsel for the respondents, solicitors in the past have on occasion been permitted to make submissions but more generally they were allowed to be present to advise, but anything further was not encouraged. The inference seemed to clearly be that solicitors were not allowed to make submissions except on exceptional occasions, but counsel didn't seem to want to say that expressly. One can observe obiter that if such a policy was adopted, it would be an extraordinary approach by the appeals committee that would be fundamentally disrespectful of the constitutional right of the school to fair procedures and legal representation: see O'Brien v. PIAB [2005] IEHC 101 (MacMenamin J., 11th March, 2005); [2008] IESC 71. I do not need to make any finding however because that question was not a ground for relief on these pleadings.

9 On 21st August, 2019 the appeal committee upheld the appeal and the Secretary General of the Department of...