1. Introduction

This commentary examines the Court of Appeal’s decision in RWU, R (on the application of) v The Governing Body of A Academy ([2025] EWCA Civ 147), where a 15-year-old student challenged his permanent exclusion from an Academy. The boy, referred to throughout as the Claimant, had a disciplinary record that culminated in the Principal’s decision to permanently exclude him in January 2024. An Independent Review Panel (IRP) initially directed that the Governing Body (GDP) reconsider reinstatement, citing concerns over procedures and support interventions. Ultimately, the GDP decided not to reinstate the Claimant, and the Claimant sought judicial review of that decision.

In resisting permanent exclusion, the Claimant advanced arguments relating to the State’s obligation under Article 4 of the European Convention on Human Rights (ECHR), contending that his perceived vulnerability to child criminal exploitation (CCE) should have been a salient factor preventing his exclusion. However, both the High Court and the Court of Appeal refused permission to appeal, holding, among other points, that the factual threshold for triggering an Article 4 “positive obligation” had not been met at the relevant time. This judgment provides further clarity on the nature of, and evidential requirements for, the Article 4 duty in a school setting, and how such obligations interface with the need to maintain discipline and safety.

2. Summary of the Judgment

The Court of Appeal upheld the High Court judge’s finding that there was no “credible suspicion” threshold of child criminal exploitation at the time of the permanent exclusion. Consequently, no positive Article 4 ECHR duty was triggered, and the Academy’s decision to exclude permanently was lawful.

The Claimant, who had been repeatedly suspended for disruptive and drug-related behavior, was found in possession of drugs and cash on school grounds, prompting the Principal to impose the final sanction. Although concerns about possible gang involvement and exploitation were raised, the Court noted that the Academy had made appropriate safeguarding referrals to social services and the police and had not been advised to refrain from exclusion by any authority.

In analyzing whether there was any basis to overturn the permanent exclusion, the Court also rejected the argument that the disciplinary decision amounted to a quasi-prosecutorial function which would attract heightened scrutiny under Article 4 ECHR. Ultimately, the Court concluded that the Governor’s Disciplinary Panel’s decision had been fair, and the facts at the time did not meet the threshold for a positive obligation to intervene on the grounds of potential child criminal exploitation. Permission to appeal on these grounds was therefore refused.

3. Analysis

A. Precedents Cited

The judgment drew extensively on:

• R (TDT (Vietnam)) v SSHD [2018] EWCA Civ 1395: Important for clarifying when a duty of protection under Article 4 (prohibition of slavery and forced labor) arises in the context of child trafficking or exploitation. The “credible suspicion” test requires that authorities be aware or ought to be aware of circumstances giving rise to a real and immediate risk of trafficking or exploitation.
• Rantsev v Cyprus and Russia (2010) 51 EHRR 1: Further defines the State’s positive obligations under Article 4, emphasizing that the obligations should not impose disproportionate burdens on authorities but do require investigative and protective steps where credible suspicion exists.
• VCL v United Kingdom (2021) 73 EHRR 9: Although relied upon by the Claimant’s representatives to argue that punishing (or prosecuting) a child at risk of exploitation may contravene Article 4, the Court here concluded that the school’s disciplinary procedure was not analogous to formal prosecution.
• Home Office Guidance on Criminal Exploitation of Children and Vulnerable Adults and Modern Slavery Statutory Guidance: Emphasized that CCE is often a form of modern slavery, triggering possible National Referral Mechanism (NRM) action. However, local authorities and police are the designated First Responders, rather than schools themselves.

B. Legal Reasoning

The Court first confirmed that permanent exclusion should be a “last resort,” particularly where young people may be vulnerable to criminal or social harms if removed from mainstream education. Nonetheless, schools retain a duty to maintain discipline and can lawfully exclude students who repeatedly breach the school’s behavior policy.

Central to the Claimant’s argument was that removing him from school exposed him to an increased risk of criminal exploitation and that this risk triggered a positive obligation under Article 4 ECHR. The judge, however, found that neither the Academy nor the police and local authority—both designated First Responders—had credible evidence of actual exploitation at the time of the exclusion. While the Academy had recorded concerns and initiated safeguarding referrals (including a MASH referral), none of these triggered the threshold demanding non-exclusion as a protective measure.

The Court concluded that the proper test is whether a “credible suspicion” has arisen of trafficking or exploitation that mandates protective interventions. Any lesser suspicion, or mere concern about a student’s behavior patterns, is insufficient. Significantly, the Court rejected characterizing the school’s decision as a penal or prosecutorial step, reaffirming that head teachers must be free to exclude students who pose a risk to the wider school community, so long as no actual breach of Article 4 obligations has been shown.

C. Impact

This judgment clarifies that unless there is credible evidence of, or immediate risk of, exploitation, a school can proceed with permanent exclusion without running afoul of Article 4 ECHR. The Court’s reasoning underscores:

• The importance of documented referrals and safeguarding measures for vulnerable pupils. Even if the child is ultimately excluded, showing the school’s awareness and steps to involve external agencies protects it against procedural or rights-based challenges.
• That “credible suspicion” under Article 4 is a sufficiently high threshold such that schools need not, in every instance of suspect association or risk, refrain from exclusion. A balancing is required between the child’s protection and the rights to education and welfare of other pupils.
• The boundaries of headteachers’ disciplinary powers remain intact in the face of modern slavery concerns, provided the circumstances do not clearly point to a duty of immediate, protective intervention.

5. Conclusion

RWU v The Governing Body of A Academy provides valuable guidance on how Article 4 ECHR obligations interface with school disciplinary processes. It reaffirms the principle that schools may legitimately exclude pupils for serious or repeated misconduct without contravening Article 4, unless at the time of exclusion there exists a well-founded, “credible suspicion” of trafficking or exploitation. Procedurally, schools should demonstrate adherence to their own policies, consider relevant safeguarding guidance, and coordinate with competent authorities when risks of CCE arise.

For future cases, this decision underscores that courts will not impose an absolute bar on exclusion just because there exists a general concern about exploitation. Rather, the decisive factor remains whether a concrete threshold of credible suspicion has been reached, requiring comprehensive protective measures. This maintains an important balance: preserving robust disciplinary powers for schools, while ensuring that real indicators of exploitation or trafficking are not overlooked.