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Demos, children and school uniform

September 20th, 2011 by James Cornwell

The duty under s.11 of the Children Act 2004 (and the statutory guidance in relation to the duty) to safeguard and promote the welfare of children has received detailed consideration by the Divisional Court (Pitchford LJ and Supperstone J) in Castle & others v Commissioner of Police for the Metropolis [2011] EWHC 2317 (Admin) http://www.bailii.org/ew/cases/EWHC/Admin/2011/2317.html.

The case arose out of the demonstrations against the increase in tuition fees and abolition of EMA in November 2010. The three claimants were school children, aged 16, 16 and 14 respectively, who were peaceful participants “kettled” by the police in Trafalgar Square for several hours. They challenged their containment by way of judicial review alleging, amongst other things, breach of s.11 of the 2004 Act and breach of ECHR, Articles 5, 8, 10 and 11. Section 11 applies to a number of public authorities, including the police, and requires that “Each person and body to whom this section applies must make arrangements for ensuring that (a) their functions are discharged having regard to the need to safeguard and promote the welfare of children; and (b) any services provided by another person pursuant to arrangements made by the person or body in the discharge of their functions are provided having regard to that need (s.11(2)). There is also an obligation in discharging this duty to have regard to guidance issued by the Secretary of State (s.11(4)). The claimants argued that this required the Met’s planning for policing the demonstrations to embrace the need to safeguard and promote the welfare of children, so as to ensure that children would not be confined within crowd containment or were confined for the minimum period necessary.

The parties adopted different approaches to the scope of s.11: the Met argued that the duty only applied to institutional  matters, such as planning and training, rather than the operational decisions to implement and maintain containment on the day of the demonstration; while the claimants argued that the requirement to have specific regard to their duties towards children applied to those operational decisions.

The Court sided with the claimants on this issue. Applying the obiter dicta remarks of Baroness Hale in ZH (Tanzania) v SSHD [2011] UKSC 4 and In re E (Children) (Abduction: Custody Appeal) [2011] UKSC 27 that the purpose of s.11 was to incorporate the UK’s obligations under the UN Convention on the Rights of the Child, including that the rights of children be a primary consideration in decision-making, the Court held that the chief officer’s statutory obligation was not confined to training and dissemination of information, rather “[i]t is to ensure that decisions affecting children have regard to the need to safeguard them and to promote their welfare”. This did not mean that the duties and functions of the police had been redefined and the impact of the duty would depend on the function being performed. However, in performing his duty to detect and prevent crime a police officer must, as the circumstances require, have regard to the statutory need.

The Court then considered whether a breach of the s.11 duty always renders a decision unlawful. The Court concluded that it was unlikely that, in the general performance of police work, there would be circumstances where that would be the case, because “it will be in rare circumstances that the failure to have regard to the statutory need will have any relevant impact upon or will qualify the ambit of the power [a police officer] is exercising”. However the duty would still be relevant to the issue of lawfulness of the containment. The Court further held that in the context of the duty on the Met to avoid interference with freedom of movement and therefore, where practicable, plan for alternatives to containment, the s.11 duty required that planning, either in advance or at the time the decision to contain was made, should, where appropriate, embrace the need to safeguard children and promote their welfare.

Applying these principles to the facts, the Court held that at the planning stage the Met did have regard to the statutory need. The officer in charge received, shared and sought further intelligence on the possible involvement of schoolchildren and at the planning stage there was no occasion to make specific arrangements for the management of children because there was no intelligence that they would attend in significant numbers. The officer had reminded his subordinates to protect the needs of the vulnerable, which was intended to include children. The Court further held that the claimants had not suggested any alternative to containment. There had been a plan to release vulnerable persons and officers on the ground and in a police helicopter repeatedly sought to identify child demonstrators, particularly those in school uniform (the claimants were not in school uniform), so that they could be released.  Nor, the Court held, was the period of containment of excessive duration. The Court therefore concluded that, while s.11 requires chief officers of police to carry out their functions in a way that takes into account the need to safeguard and promote the welfare of children, that duty had been discharged.

Conversion to academy status for a number of schools has been put on hold owing to financial issues

September 19th, 2011 by Holly Stout

Conversion to academy status for a number of schools has been put on hold owing to financial issues.  Some schools have benefitted from PFI rebuilding projects, funded by bank loans which authorities are currently repaying.  On schools converting to academy status, banks have become concerned about whether authorities would remain liable for PFI repayments.  Read more about it in the Guardian here: http://www.guardian.co.uk/education/2011/sep/16/schools-academies-bank-pfi-deals.  It’s not quite clear from the Guardian report what the issue is.  Any liability under a PFI contract could be transferred from the authority to the school when the Secretary of State makes a transfer scheme under s 8 of the Academies Act 2010.  However, it may be that the issue in these cases is either that no specific provision has been made, or that the banks are concerned about the strength of any newly-formed academy’s covenant and wish the authority to remain liable for repayments.  Perhaps a reader ‘in the know’ could clarify?

AUXILIARY AIDS FOR CHILDREN WITH DISABILITIES

September 13th, 2011 by James Goudie QC

In response to a recommendation made by the Lamb Inquiry into parental confidence in the SEN system, whose Report was published on 16 December 2009, an amendment was made to the Bill that is now the Equality Act 2010 (“the Act”), so that schools would not be excluded from the third requirement of the “reasonable adjustments” duty, namely the requirement to provide auxiliary aids and services.

However, although most of the Act is now in force, this requirement has not yet been brought into force.

On 12 September 2011 the Department for Education issued a Consultation, for response by 5 December 2011, on implementing this requirement in England.  Parallel consultations will be taking place in Wales and in Scotland.

The Consultation seeks responses on two main issues: firstly, the date when the new obligation should be brought into effect, including consideration of whether there are reasons why it should not be commenced at all, or should be commenced earlier or later than September 2012; secondly, whether Regulations under Section 22 of the Act would be necessary or desirable to define the extent of the obligation on schools and local authorities to provide auxiliary aids as part of their duty to make reasonable adjustments for disabled pupils.

James Goudie QC

Education law news round-up

September 2nd, 2011 by Edward Capewell

As people return from their no doubt well-earned summer holidays, there is much to be found in the news which is of interest to education lawyers (and indeed normal people too).

First up, the GTCE has been busy regulating the profession before its forthcoming abolition by the provisions of the Education Bill 2011. On 2nd September 2011, it found teacher Benedict Garrett, otherwise known as ‘Johnny Anglais’, guilty of unacceptable professional conduct and issued him with a reprimand. Something of a moral debate has broken out over whether teachers who earn money on the side in the sex industry are suitable material for the classroom. Unfortunately the GTCE committee’s judgment is not currently available on their website, but you can read Mr Garrett’s take on the whole affair here.

Secondly, the first free schools have been opening their doors. For help on what a free school really is (in strict terms it is simply an academy under the Academies Act 2010) readers of this blog cannot go far wrong with Joanne Clement’s paper on academies which is to be found here. There is also a helpful short paper which has been written by the staff of the House of Commons library which you can find here.

Elsewhere, the DfE has published new statutory guidance on teachers’ pay and conditions and new national minimum standards for residential special schools and boarding schools. When Parliament returns from recess, the Education Bill 2011 will continue its journey through the House of Lords committee stage with a meeting on 12th September. It is now not very far away from receiving Royal Assent.