The Board and Management of B. National School v The Secretary Genrral of the Department of Education and Skills & ors [2019] IEHC 738 (21 October 2019)

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	High Court of Ireland Decisions
You are here: BAILII >> Databases >> High Court of Ireland Decisions >> The Board and Management of B. National School v The Secretary Genrral of the Department of Education and Skills & ors [2019] IEHC 738 (21 October 2019) URL: http://www.bailii.org/ie/cases/IEHC/2019/2019_IEHC_738.html Cite as: [2019] IEHC 738

THE SECRETARY GENERAL OF THE DEPARTMENT OF EDUCATION AND SKILLS, JIM

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

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

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

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

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

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

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

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 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 makes no reference to

limited hours, for some unexplained reason. I granted leave on 4th September, 2019,

the primary relief sought being certiorari of the decisions of the appeal committee and the

10. I have now received helpful submissions from Mr. Feichín McDonagh S.C. (with Mr. Joe

Jeffers B.L.) for the Board of Management, from Mr. Conor Power S.C. (with Mr. Tony

McGillicuddy B.L.) for the respondents and from Ms. S.B., the mother of the pupil, who

appeared in person. On 25th September, 2019 I gave an ex tempore ruling granting

relief, on 18th October, 2019 I granted a partial stay on the order made, and I now take

11. The concluding statement of the principal to the appeal hearing summarised in one

sentence what the case is really about. According to the solicitor’s note, “In response the

principal stated that the school had a duty of care to everyone in the school”. That is the

core point. Almost incredibly, that fundamental point is not engaged with by the appeals

12. In fairness to decision-makers in this area, if one turns to s. 29 of the 1998 Act to find an

express test for expulsion, it is not there. To that extent the statute is unsatisfactorily

drafted. One has to find the test in caselaw. The applicant’s written submissions at para.

2 correctly summarised that caselaw by saying that “the task of the appointed appeal

committee is not a complex one. They are required to first consider the school’s code of

behaviour and/or policy relating to the expulsion of students and then apply that policy to

the behaviour of the student in question”. The function of the appeals committee is not

to impugn the policy but to apply it: see Lucan Educate Together National School v

Secretary General of the Department of Education & Science (Ó'Ceallaigh) and Others

[2011] IEHC 86 (Unreported, O’Keeffe J., 27th January, 2011), Board of Management of

Presentation College Athenry v. Secretary General of the Department of Education and

Skills [2017] IEHC 521 (Unreported, Ní Raifeartaigh J., 26th July, 2017); and the ex

tempore judgment of a strong Court of Appeal in Board of Management of Presentation

College Athenry v. Secretary General of the Department of Education and Skills

(Unreported, 10th August, 2017), per Ryan P., Kelly P. and Irvine J. concurring at para.

13. Indeed that principle is accepted by Mr. Power for the respondents here. In City of

Waterford VEC v. Department of Education and Science [2011] IEHC 278 (Unreported,

High Court, 27th July, 2011) at para. 16, Charleton J. summarised the test by saying that

the issue was “whether the behaviour of the pupil, taken within the proper context,

warrants the expulsion”. Allen J. noted in F.D. (a minor) v. Minster for Education and

Science [2019] IEHC 643 (Unreported, High Court, 13th September, 2019) at para. 64

that the consideration of the context does not extend to an inquiry into the quality of the

services available, or the responsibility of the school, or its contribution to the

misbehaviour due to any alleged deficiency in the service provided. It is true that Allen J.

also said at para. 63 that factors to be taken into account would include attempts by the

school at diverting, checking or correcting the behaviour. That seems to be a reference to

an obiter comment by Charleton J. at para. 17 of the Waterford V.E.C. case, as well as

something to the same effect at para. 65. However, the efforts of the school are

primarily to be taken into account as a contextual matter. The reference to those efforts

is not the conferral of a jurisdiction on the committee to make an evaluation of those

efforts. That is clear in para. 64 of Allen J.’s judgment. Mr. Power read para. 64 as

referable purely to the resources of the school. I don’t read it so narrowly. Whether the

school’s handling of the child’s behaviour is good, bad or indifferent is irrelevant to the

substantive issue, which is whether the child’s behaviour warrants expulsion in the light of

14. Ní Raifeartaigh J. in S.C. (a minor) v. Secretary General of the Department of Education

and Skills [2017] IEHC 847 (Unreported, High Court, 30th June, 2017) also referred to

the need for the committee to find the relevant facts. She also referred to the age and

maturity of the child although that is only really relevant substantively insofar as the

increased age and maturity since the incident means there will be no repetition.

15. Applying the law to the facts here, it is clear that there were a whole series of

fundamental failures by the appeals committee. Firstly, they failed to consider the

school’s code of behaviour. Astonishingly there is no reference whatsoever to that code

of behaviour in the decision. Lamely, a member of the committee, Mr. Alan McCormack,

tried to justify this by saying that “reference was made to the code of behaviour during

the course of the hearing and we were aware of its contents”. That is not remotely a

substitute for engaging, within the terms of the actual decision, with the code on which

the jurisdiction of the committee was founded. A court, for example, would not be

regarded as dealing competently with a matter if it declined to engage with its

fundamental jurisdictional parameters in a judgment merely on the basis that they were

16. Secondly, the decision failed to identify expressly the behaviour. Rationally, the

committee could only have upheld the school’s case as to behaviour because there was no

contest, at least as regards the behaviour on the 3rd April, 2019. The earlier behaviour

however was also highly relevant. Mr. McDonagh very legitimately described the 3rd

April, 2019 as the straw that broke the camel’s back. But one can say on reflection that

most of the earlier behaviour would have justified expulsion in itself. That didn’t become

irrelevant just because the school didn’t act at that earlier point.

17. Mr. McCormack at para. 29 says in effect that the behaviour was not mentioned because

it was not contested. That is certainly not an adequate engagement with the totality of

the facts. The decision minimises if not completely side-lines the behaviour before 3rd

April, 2019 and it fails to particularise either the previous behaviour or the culmination of

18. Thirdly, the decision failed to apply the code to the behaviour. Indeed it failed to apply

19. Fourthly, it failed to consider the effects of the behaviour on staff and students. That was

the core point made by the principal in her admirably succinct summation at the end of

the hearing. In that context the appeals committee failed to consider the likelihood of

recurrence. No reasonable decision-maker could have said that there was no risk of

repetition given the history of behaviour by the child in question. Indeed Mr. Power

accepted that he was not submitting that a reasonable person could have concluded that

there was no risk of repetition. That concession it seems to me is fatal to any suggestion

20. The committee failed at the most elementary level to carry out its clear remit and its

approach was wholly unlawful. The attempt made on behalf of the respondents to pass

off the appeals committee’s fundamentally flawed approach as merely stating context

lacks intellectual credibility. That is for two major reasons. Firstly, these matters were

not stated to be contextual. The matters considered by the committee were stated to be

“the following reasons”. Secondly, this was not just a case of introducing irrelevancies.

The core issues were not dealt with. One of the fundamental reasons why the core issues

need to be dealt with and expressly articulated is that such a process ensures that the

decision-maker addresses its mind to the correct statutory test. Both the school’s code of

behaviour and the actual decision made by the school come well within the guidelines

issued by the NEWB permitting expulsion. All of the elements potentially justifying

expulsion set out in the NEWB guidelines apply here: a significant disruption to other

students, threat to safety, damage to property, violence and assault.

21. It is remarkable – one might add by way of postscript almost unbelievable - that there is

no reference to health and safety in the appeal committee’s decision. At the level of

principle, it would be wrong to consider expulsion merely as a sanction or to adopt a

purely “offender-centred” view of the process. Expulsion is primarily a mechanism to

vindicate the rights of others, both other students and staff members. The point was

made classically by John Rawls in A Theory of Justice (Harvard University Press, 1971).

One is not entitled to unlimited rights - only to the greatest liberty equal to that of others.

A person cannot exercise a right (for example to education) in a way that even through

no fault of his or her own (due to illness or disability) interferes with the corresponding

rights of others or the right to bodily integrity of any other person (in this context, either

students or staff, or indeed both). The appeals committee or a school does not have the

right to permit or require a student to be present in that school if that presence is in

breach of the rights of others, whether students or staff, and it would be a breach of the

constitutional rights of persons not before the court to allow, still less require, a student

to attend the school if that attendance would interfere with the rights of others in that

school, whether students or staff, and whether to a right to an education or to bodily

22. One might contextualise the point by adding by way of postscript that the really toxic

feature of the jurisprudence spawned by the Warren Court and its European and Irish

imitators (right down to the present) is the way in which it renders marginal, if not

constitutionally invisible, the rights and interests of the wider community and of persons

not before the court. The “rights” of the person (alleged to be) behaving in an antisocial

way are set up to be worshipped, with no significant acknowledgment of the interests and

rights of persons who are voiceless in the specific proceedings. Thus constitutional

invisibility was afforded to the rights of victims of crime in Mapp v. Ohio 367 U.S. 643

(1961) and The People (DPP) v. Kenny [1990] 2 I.R. 110, or to the right of the

community to environmental protection in Wicklow County Council v Fortune (No 2)

[2013] IEHC 255, to take two of the most egregious examples. The present case is

comparable insofar as the appeal committee managed to produce a decision that

grotesquely rendered irrelevant the real harm inflicted by the child on others and the

likelihood if not certainty of future risk of harm on such innocent persons. To treat

expulsion as an “offender-centred” process is inherently to load the dice against victims of

such behaviour. The core issue is not whether a good plea in mitigation can be launched

or whether the school could have done better – it is whether there is or has been a risk to

the rights of others. The present case is the reductio ad absurdum of the notion that

expulsion is a purely disciplinary process that is essentially about the expelled child and

his or her rights. Only a conceptual and jurisprudential misunderstanding of that

magnitude can explain a decision so radically unhinged from common sense as the one

23. The decision of the committee is riddled with irrelevancy. In particular, it states that it is

“noteworthy and significant” that the student had not incurred any serious infractions in

the academic year of 2018 to 2019. That statement is now retrospectively being

interpreted as referring to no suspensions and I will deal with that issue later. The

decision goes on to refer to alleged “serious deficiencies in the management of [C’s]

behaviour”, the alleged “scope for improvement in responding to [C’s] behavioural

difficulties” by “lack of clarity regarding the quality of communication between the school

and the [relevant area] community mother programme” and alleged “lack of clarities

around the dissemination of information regarding the change in [C’s] medication …and

how that might affect his behaviour”, and an allegation that occupational therapy reports

have not been consistently followed. All of these are fundamentally irrelevant matters

save in terms of context, whereas in the decision they are elevated to being “the following

reasons” for upholding the appeal. Reference to the student’s age and maturity is also

made. That is of marginal relevance at best, as I have discussed above. It is hard to see

how it is really relevant here and the decision certainly does not explain how it is

24. It is true that Charleton J. in the V.E.C. case at para. 17 and Allen J. in F.D. at para. 63

and 65 referred to the efforts of the school but as I have mentioned earlier, that is

relevant to the substantive issue only in the limited circumstances where clear steps could

be taken which would mean there would be no future risk to others in the school. That

has no relevance here. Those judgments should not be read as meaning the school’s

handling of a student is up for debate in every case. At best those matters are only

25. If the implementation of the occupational therapists’ recommendations had been relevant,

which it was not, that was not put to the principal. That does not strictly speaking arise

because those recommendations were not relevant; but if I am wrong about that I would

have quashed the decision on this ground also. Mr. Power was forced into making the

somewhat embarrassing argument that the mother made the complaint in her evidence

so that satisfied fair procedures, even though he agreed that it did not appear to have

been put to the principal. That is of course an unstateable proposition. If the school is

going to be criticised, that has to be put to the school’s witness. That is Fair Procedures

101. The point does not arise anyway because the issue was not relevant and was

unlawfully elevated by the committee into a “reason” for its decision.

26. The reasons are manifestly irrational to an almost astonishing extent. 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. No reasonable appeals committee could allow the appeal on the basis of the

27. The decision is also separately irrational in the sense that it said that no serious

infractions had occurred in the current academic year. Whether that means no incidents

or no suspensions (as the respondents now, I must add by way of postscript, implausibly,

contend) does not really matter because the committee failed to draw the necessary

conclusions from the student’s behaviour. The statement in the decision that the

expulsion is disproportionate and did not respond to the needs of the circumstances is

totally other-worldly. It is manifest that the presence of the student is likely to be a

threat to others and it would be irrational to conclude other than that the decision of the

28. If I am wrong about the decision being irrational and if, which I do not accept, it would be

open to a hypothetical appeals committee to consider that expulsion was

disproportionate, no adequate reasons are given for the decision that the expulsion is

disproportionate here. The decision is quite obscure in any event, although given the

other fundamental flaws involved, its opacity is, in fairness, probably not its worst

29. Strictly this complaint does not arise because the decision falls anyway but the complaint

is made that the Secretary General departed from the committee’s recommendation that

the re-engagement of the student should be for limited hours initially. 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 is flawed on that basis also.

30. Mr. McDonagh asks “how is this school supposed to be run going forward” on the basis of

the committee’s decision. No credible answer has been put forward to the that question.

(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 will continue;

(ii). reliefs D1 to 3 in the statement of grounds regarding certiorari of the decisions and

(iii). costs will 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

32. On 18th October, 2019 I granted a stay on the order for costs (which hadn’t 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.

Result: Reliefs granted

High Court of Ireland Decisions