RWU, R (on the application of) v The Governing Body of A Academy

Factual and Procedural Background

The Plaintiff is a 15-year-old boy who was permanently excluded from an Academy by the Principal on 18 January 2024 following multiple suspensions for breaches of the Academy's Behaviour Policy. The Governing Body's Disciplinary Panel ("GDP") initially refused to reinstate him. This decision was quashed by an Independent Review Panel ("IRP"), which directed the governors to reconsider the case. Upon reconsideration, the GDP again decided not to reinstate the Plaintiff, as communicated in a letter dated 24 June 2024.

The Plaintiff applied for judicial review on 8 September 2024 challenging the reconsideration decision. An expedited hearing took place on 24 October 2024 before Fordham J, who granted permission for judicial review but dismissed the substantive claim and refused permission to appeal. This court was later ordered to hear the matter on a rolled-up basis, which occurred on 6 February 2025.

The Plaintiff had attended the Academy since Year 7 in September 2020. During Year 10, between 31 October 2023 and 5 December 2023, he was suspended five times for various behavioural incidents including swearing at staff, truancy, arriving at school under the influence of drugs, involvement in an incident bringing the school into disrepute, and failure to engage with the reintegration process. The Academy's Behaviour Policy allows for consideration of permanent exclusion ("PEX") upon a sixth suspension within a year.

The Academy implemented various support measures including a Multi-Agency Support Hub ("MASH") referral and a Pastoral Support Plan ("PSP") to address the Plaintiff's behaviour and vulnerabilities. The PSP was a structured 16-week intervention involving the Plaintiff, his father, and key Academy staff, aimed at supporting improvement in behaviour. Additional interventions included participation in community and counselling programmes, some of which the Plaintiff refused.

The permanent exclusion decision was made after the Plaintiff arrived late to school, was found in possession of cannabis and related paraphernalia, and following a physical altercation with his mother at the Academy. The Principal concluded that the Plaintiff’s persistent breaches of the Behaviour Policy, culminating in possession of a Class B drug on school premises, justified permanent exclusion to protect the welfare of others.

Subsequent to the PEX decision, attempts for a managed move to another Academy failed following the Plaintiff's arrest for possession of a knife. This incident was disregarded in the PEX proceedings. The Academy has safeguarding policies addressing Child Criminal Exploitation ("CCE") and County Lines, with a designated safeguarding lead responsible for referrals and interventions.

The GDP hearing on 18 March 2024 upheld the exclusion, considering the Principal's decision lawful and reasonable. The IRP hearing on 13 May 2024 applied judicial review principles and found no illegality or procedural impropriety but concluded the decision to exclude was irrational due to insufficient consideration of support interventions and lack of independent evidence. The IRP directed the governors to reconsider the decision.

At the reconsideration hearing in June 2024, the GDP reaffirmed the exclusion decision, now with additional information including the PSP and suspension reintegration notes. The governors acknowledged the Plaintiff’s persistent breaches and considered the exclusion a last resort, balancing the Plaintiff’s needs against the safety and welfare of the school community.

Following the reconsideration, further events included the Plaintiff’s arrest and a referral to the National Referral Mechanism ("NRM") as a potential victim of CCE, but these occurred after the final decision under judicial review and were deemed irrelevant to its lawfulness.

Legal Issues Presented

1. Whether the Governing Body’s Disciplinary Panel (“GDP”) misapplied the legal test for permanent exclusion, particularly regarding the requirement that allowing the pupil to remain in school would seriously harm the education or welfare of the pupil or others.
2. Whether the school owed a positive protection duty under Article 4 of the European Convention on Human Rights (“ECHR”) to consider the risk of Child Criminal Exploitation (“CCE”) in making the exclusion decision.
3. Whether the GDP failed to give conscientious and rigorous consideration to reinstatement following the Independent Review Panel’s direction, including proper assessment of the Plaintiff’s vulnerabilities and necessary justification to depart from the presumption of reinstatement.

Arguments of the Parties

Appellant's Arguments

• The Plaintiff argued that the school had a positive obligation under Article 4 ECHR to protect him from CCE by considering the impact of permanent exclusion on his vulnerability to exploitation.
• The legal test for permanent exclusion should be strictly construed to avoid exposing children to the risk of CCE.
• The GDP failed to properly apply the Independent Review Panel’s direction and did not adequately consider the Plaintiff’s vulnerabilities or the sufficiency of support interventions before deciding against reinstatement.
• It was submitted that the exclusion decision was quasi-prosecutorial and should be approached with similar safeguards as criminal proceedings, citing the European Court of Human Rights decision in VCL v United Kingdom.

Respondent's Arguments

• The Academy and GDP contended that the exclusion decision was lawful, reasonable, and a last resort, properly balancing the safety of the school community with the Plaintiff’s needs.
• The Article 4 positive obligation did not impose an automatic bar to exclusion, nor did it require reinstatement absent a credible suspicion of immediate risk of trafficking or exploitation known to the school at the time.
• The local authority and police, as designated First Responders, had not identified a triggered protection duty at the relevant times, and the Academy acted appropriately in collaboration with these authorities.
• The subsequent events post-dating the reconsideration decision were irrelevant to the lawfulness of the exclusion decision.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
R (TDT (Vietnam)) v SSHD [2018] EWCA Civ 1395	Clarification of the Article 4 positive obligation and the duty of designated public authorities to protect potential victims of trafficking and exploitation.	Used to assess whether the Academy owed a positive protection duty under Article 4 ECHR in relation to the Plaintiff’s risk of CCE; court found no such duty triggered at the relevant times.
VCL v United Kingdom (2021) 73 EHRR 9	Recognition that prosecuting victims of trafficking may conflict with the State’s duty to protect them under Article 4.	Invoked by the Appellant to argue that the exclusion decision was quasi-prosecutorial and required heightened protection measures; court expressed doubts about this analogy.
Rantsev v Cyprus and Russia (2010) 51 EHRR 1	Establishes the credible suspicion threshold for triggering State protection duties under Article 4 in trafficking and exploitation cases.	Applied to define the threshold for the Article 4 duty in the context of the Plaintiff’s case; court concluded the threshold was not met at the time of the exclusion decision.
R (R) v Chief Constable of Greater Manchester Police [2018] 1 WLR 4079	Standards for appellate review of factual findings and identification of errors in reasoning.	Guided the court’s approach to reviewing the trial judge’s factual findings, supporting deference to his detailed and careful evaluation.
R (DB) v Chief Constable of Police Service of Northern Ireland [2017] UKSC 7	Emphasizes the primacy of first-instance factual findings and the limited role of appellate courts in reassessing facts.	Supported the court’s decision to uphold the trial judge’s findings on the Article 4 duty and exclusion lawfulness.
Afriyie v Commissioner of Police for the City of London [2024] EWCA Civ 1269	Clarifies the standard for appellate review where mixed issues of fact and law arise, particularly regarding reasonableness and proportionality.	Referenced in argument about the standard of review but the court maintained deference to the trial judge’s conclusions.
Dallison v Caffery [1965] 1 QB 348	Legal principles governing objective reasonableness in assessing use of force and mixed fact-law issues.	Cited in relation to the standard for evaluating mixed questions of fact and law, relevant to the court’s review approach.

Court's Reasoning and Analysis

The court examined whether the Article 4 positive protection duty under the Human Rights Act 1998 applied to the Academy’s decision to permanently exclude the Plaintiff. It acknowledged that public authorities have a duty to take appropriate measures to protect individuals at credible risk of trafficking or exploitation. However, the court found that the threshold for triggering this duty—the existence of a credible suspicion of a real and immediate risk—was not met at the time of the exclusion decision or the reconsideration.

The court noted that the local authority and police, as designated First Responders, did not consider the threshold crossed and did not make an NRM referral until after the reconsideration decision. The Academy had made safeguarding referrals and engaged with relevant agencies but was not informed of any triggered protection duty.

The court emphasized that the lawfulness of the exclusion must be assessed based on the information available at the time, without hindsight. It accepted the trial judge’s detailed factual findings that the Academy and GDP had considered CCE risks appropriately within their powers.

Regarding the IRP’s findings of irrationality, the court recognized concerns about insufficient scrutiny of support interventions and lack of independent evidence. Nevertheless, the GDP’s reconsideration addressed some of these issues by reviewing additional information and reaffirming the exclusion decision as lawful and reasonable.

The court also considered submissions that the exclusion decision resembled a quasi-prosecutorial process but expressed skepticism about this analogy and declined to accept it as a basis for overturning the decision.

In reviewing the appeal, the court applied established principles of appellate restraint on factual findings, affirming that the trial judge’s conclusions were not “wrong” in law or fact.

Holding and Implications

The court REFUSED PERMISSION TO APPEAL and upheld the decision of Fordham J dismissing the judicial review claim.

The court held that the Academy’s permanent exclusion decision and the GDP’s reconsideration were lawful, reasonable, and made in accordance with statutory and human rights obligations. The Article 4 positive protection duty did not apply at the relevant times, and the exclusion decision did not contravene the Plaintiff’s rights under the Human Rights Act 1998.

The direct effect is that the Plaintiff’s exclusion stands and no reinstatement order is made. The court did not establish any new precedent but reaffirmed the applicable legal framework governing permanent exclusions and the limited circumstances in which Article 4 duties arise in educational disciplinary contexts.