Cunningham, R (on the application of) v Sacred Heart School

A defect in the composition of a school governing body does not necessarily invalidate its proceedings. Under paragraph 12(5) of the School Governors (Procedures) (England) Regulations 2003, proceedings remain valid despite a vacancy or a defect in a governor’s election, appointment or nomination. The statutory saving provision is intended to prevent decisions being unravelled because of technical defects. The “not reasonably practicable” test for appointing certain former-pupil or child parents requires evidence that practical steps to appoint a current parent were considered. Judicial review relief may also be refused where proceedings were brought substantially out of time and another remedy, such as employment proceedings, can provide effective relief.

The claimant was head teacher of Sacred Heart Roman Catholic Primary School. Following disciplinary proceedings, he was dismissed and his appeal was rejected. He sought judicial review of the governing body’s decision to establish the disciplinary and appeal panels, contending that the governing body was improperly constituted because insufficient foundation governors were eligible to be parent governors.

Permission was confined to whether the governing body which appointed the panels was properly constituted. The court considered the school’s Instrument of Government, the School Governance Constitution (England) Regulations 2007, and the statutory saving provision in the School Governors (Procedures) (England) Regulations 2003.

1. The claim was dismissed. The governing body’s proceedings on 13 October 2008 were valid, and the decision to establish the disciplinary and appeal panels was not quashed.
2. The court was doubtful that repeatedly treating former parents as foundation governors eligible to be appointed as parent governors, many years after their children had left the school, complied with the Instrument of Government or the School Governance Constitution (England) Regulations 2007. The recruitment difficulties and illness of the parish priest did not establish that it was not reasonably practicable to appoint a current parent. Practical steps towards that appointment had to be considered, and none had been shown.
3. Even assuming that the governing body was improperly constituted, paragraph 12(5) of the School Governors (Procedures) (England) Regulations 2003 applied. The provision protects proceedings from invalidity arising from a vacancy or a defect in the election, appointment or nomination of a governor. Its purpose is to avoid the inconvenience and disruption of unraveling decisions because of technical defects.
4. The court also indicated that relief would have been refused in the exercise of discretion. The claim was brought considerably outside the three-month period after the dismissal decision, and the claimant had chosen to pursue an appeal on the merits before commencing judicial review. His employment tribunal proceedings could provide reinstatement and compensation, so the judicial review would have achieved little beyond expense and delay.

This was a first-instance judicial review claim. Permission had previously been granted on a confined issue by Irwin J, but no appellate history is stated in the judgment.