Megan, a First Tier Legal Advisor from Child Law Advice Service shares her advice on what to do if your child is excluded from school.
What can my child be excluded for?
A child could be excluded for disciplinary reasons, such as breaches of the behaviour policy, or refusal to listen to instructions. However a child could not be excluded for non disciplinary grounds, such as the actions of a parent or academic ability.
It is also unlawful to send a child home without formally recognising it as an exclusion.
What happens first?
When an exclusion is issued, whether fixed term or permanent, the Head Teacher should notify you of the period of the exclusion and their reasons for the exclusion, without delay.
They should also provide you with the following information in writing as soon as is possible:
- the reason for the exclusion
- the number of days the child is going to be excluded for, or letting you know that it is permanent
- your right to make representations to Governing Body about the exclusion, and how your child can be involved in this
- how these representations can be made
- whether or not you are legally entitled to attend a meeting with the governors (and your right to bring representation or a friend if you are entitled to attend)
- the days on which (during the first 5 days of exclusion) that your child must not be present in a public place
The decision to exclude permanently should be “in response to a serious breach or persistent breaches of the school’s behaviour policy; and where allowing the pupil to remain in school would seriously harm the education or welfare of the pupil or others in the school”.
When will I be able to meet the Governors?
Following exclusion, either fixed term or permanent, you may be entitled to attend a meeting with the Governing Body of your school.
If the exclusion is for less than 5 days:
Unfortunately you do not have a legal right to attend a Governing Body meeting.
You can make your representations in writing, and the Governors must consider them, however they cannot direct the child to be reinstated.
If the exclusion is for more than 5 but less than 15 days:
If you would like to make representations, you should make these in writing to the Chair of Governors. The Governing Body must consider reinstatement of your child within 50 school days.
If you do not want to make representations, the Governors are not required to consider reinstating your child.
If the exclusion is for more than 15 days or is permanent:
The Governing Body must consider the reinstatement of the pupil within 15 school days.
You have the right to attend a meeting and make your representations in person.
You are also allowed to bring a representative or friend to support you in the meeting. If the school is a Local Authority school, a Local Authority representative will also attend.
If the exclusion would cause a child to miss a public examination or national curriculum test:
The Governing Body must consider reinstatement of the pupil within 15 school days.
The Governing Body should also, as far as reasonably practicable, try and review the exclusion before the date of the test or exam; however you still have the right to make your representations.
What happens whilst I wait for the Governing Body meeting?
Fixed term exclusions:
The school should take reasonable steps to set and mark work for the first 5 days of the exclusion.
From there, the Governing Body should arrange for suitable full-time education for any pupil to begin no later than the sixth school day of the exclusion.
The Local Authority has a duty to provide education from the sixth day of the exclusion.
We would advise you to accept the school place that is offered by the Local Authority, even if you are not happy with the placement. If you refuse the placement, the Local Authority’s duty is discharged and therefore the duty would fall on you to home educate or find an alternative school.
What should I do following the request to make formal representations?
We would advise that firstly, you request the child’s educational record as well as the schools behaviour and exclusion policies.
Secondly, we would advise that you read the statutory guidance on school exclusions as this document sets out the legal process.
Thirdly, you may wish to read through the full Child Law Advice Service information guide or call their advice line on 0300 3305 485.
Fourthly, you should review and study the evidence which the Governing Body are under a legal duty to distribute before the meeting. This gives you the opportunity to put notes together and to challenge any information you are unhappy with.
Finally, you can request representation to help you challenge the exclusion. The School Exclusion Project or CEN Live (London only) provide free legal advice and representation to assist parents challenging an exclusion.
What happens if the Governing Body reinstates my child?
In the case of both a fixed term (over 5 days) and a permanent exclusion, if the Governing Body decides to reinstate a pupil, the school are under a legal duty to add an amendment to the child’s educational record which indicates the exclusion was overturned.
What if my child is not reinstated?
For fixed term exclusions:
There is no further right of appeal for a fixed period exclusion; however you are within your rights to make a formal complaint to the school to raise your concerns.
The complaint should be made in line with the schools own complaints procedure.
For permanent exclusions:
You have the right to escalate the appeal to the Independent Review Panel.
You have 15 school days from receiving the Governor’s decision to lodge your appeal to the Independent Review Panel and the Governing Body should give you details of when and where you should lodge this appeal. You should submit as much evidence as you feel is necessary to support your case.
You are also able to bring a claim of discrimination if you feel that the exclusion arose as a result of discrimination. If you feel this has been the case you may wish to contact the Child Law Advice Service for further advice.
What happens at the Independent Review Panel?
The Panel should meet within 15 school days of receiving your application (however, they can adjourn if necessary).
You have the right to make written and oral representations to the panel, and any evidence should be circulated at least 5 days before the review.
If you have requested a SEN Expert they can inform the panel of how SEN may have been relevant to the exclusion. If the SEN expert does not attend, but you have requested one, you can ask the hearing to be adjourned until an expert is available.
The Independent Review Panel will notify you, in writing, of their decision and the reasons for that decision.
The Independent Review Panel cannot direct reinstatement of the pupil. They can send it back to the Governing Body to reconsider their decision.
Even if you tell the panel that you do not want the child to return to the school, the Independent Review Panel should treat the case the same way.
If the Independent Review Panel does not recommend the Governing Body reconsider their decision, there is no further right of appeal. If you feel there have been errors you may want to contact the Child Law Advice Service for further advice.
What happens if the Governing Body has to reconsider?
Unfortunately this does not guarantee that the child will return to the school.
The Governing Body should reconvene within 10 days of the Independent Review Panel decision and should seriously consider whether the child should be reinstated, however the outcome could still be the same.
If the Governing Body offers to reinstate the pupil, you can refuse and an amendment will be added to the child’s educational record to explain that the decision has been overturned, and the basis for the Governors decision.
If you do wish for the child to return, the amendment will be added in the same way and the child will be able to return, however the school may request you attend a reintegration meeting.
If the Governing Body refuses to reinstate your child, unfortunately the options to challenge this are limited. You cannot take it back to the Independent Review Panel, but you could consider legal action through Judicial Review. You would need to find a Public Law Solicitor in your area to try and challenge this.
The Child Law Advice Service provides legal advice and information on family, child and education law affecting children and families in England. Their education advice ranges from admissions issues to exclusions as well as what to do if your child is being bullied to how to get help for your child if you suspect they have a Special Educational Need.