Expulsion from a school of a pupil might cause a breach of Protocol 1 Art.2 ECHR, but only where the pupil had no access to alternative educational facilities. If the cause of that unavailability was the action or inaction of the local education authority, then the authority would be liable, rather than the school.Trial of liability in an action for damages against the head teacher and governing body of a Milton Keynes school. The claimant ('AH') claimed damages under s.6 and s.8 Human Rights Act 1998 following his exclusion from the school following a fire on 8 March 2001. AH and two other boys were suspected of involvement and excluded pending police enquiries. They were charged on 29 March and the exclusion continued, with work for AH's SATs examinations being sent home. On 18 June, the Crown Prosecution Service discontinued proceedings. A re-integration meeting was arranged for 13 July but AH and his family did not attend. The reasons for this were disputed. The school then wrote saying that his name would be removed from the school roll, and did so some time after 7 September 2001. Since 21 January 2002, AH had attended another school. AH argued that there had been a breach of his rights under Art.6, Art.14 and Protocol 1 Art.2 of the European Convention on Human Rights.HELD: (1) Art.6 applied only to the determination of civil rights and obligations and to criminal charges. It had no application to what was conceded not to be a civil right (or obligation) and was not a criminal charge. (2) Art. 14 was not engaged in the circumstances either. (3) The duty created by Protocol 1 Art.2 was imposed on the state and not on any particular domestic institution. It did not create a right to be educated in any particular institution or in any particular manner. Expulsion from a school of a pupil might cause a breach of Protocol 1 Art.2, but only where the pupil had no access to alternative educational facilities. If the cause of that unavailability was the action or inaction of the local education authority, then the authority would be liable, rather than the school. This was the position whether or not the expulsion from school was lawful under domestic law. (5) Under domestic law, AH's absence was exclusion. The temporary exclusion was reasonable, pending the possible criminal proceedings, as was the headteacher's decision, in these circumstances, not to interview AH. (7) However, the exclusion was not lawful, as it was neither permanent nor for a fixed period. An indefinite temporary exclusion was not known to the law. In addition, none of the requirements of s.65(1) or s.65(3) School Standards and Framework Act 1998 were complied with. (8) Subsequent fixed periods of exclusion also failed to comply with the provisions of the 1998 Act and once the maximum 45 days' temporary exclusion expired on 6 June, as nothing was done to resolve AH's position, his exclusion after that date was unlawful. (9) The removal of AH from the school roll in the autumn of 2001, was also unlawful. Neither the school nor the LEA made reasonable enquiry to locate him before his removal. (10) Although the decisions to exclude the claimant and to remove him from the roll were unlawful, and could have been challenged by judicial review, they did not give rise to a liability in damages for breach of his rights under Art.2, First Protocol, ECHR.Claim dismissed.

[2003] EWHC 1533 (QB)

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