RWU (by his litigation friend LTA), R (on the application of) v The Governing Body of A Academy

The Court of Appeal refused permission to appeal against the Administrative Court's judgment dismissing the claimant's judicial review challenge to a permanent exclusion (PEX) from a secondary academy. The key legal issues were whether the school and governors had to interpret and apply the statutory PEX test compatibly with an Article 4 ECHR positive obligation to protect a child at risk of child criminal exploitation (CCE), and whether the governors had given sufficiently conscientious consideration to reinstatement as directed by an independent review panel (IRP). The court accepted that a PEX decision must be made compatibly with any Human Rights Act 1998 duty, but held that the Article 4 protection duty had not been triggered on the facts at the relevant time (no credible suspicion of a real and immediate risk of trafficking or exploitation had been shown). The judge below (Fordham J) had therefore been correct to find no Article 4 breach and to dismiss the claim on that ground. The Court of Appeal also upheld the judge's factual evaluation that the GDP had not acted unreasonably in its reconsideration and that the claimant had not established that the IRP's direction had been misapplied in a way that required intervention.

This is an appeal from an Administrative Court decision (Fordham J, [2024] EWHC 2828 (Admin)) dismissing a judicial review challenge to the decision of the governing body of A Academy to refuse reinstatement after a principal's permanent exclusion of a 15-year-old pupil. The pupil had a rapid sequence of suspensions in late 2023 and was excluded on 18 January 2024 after being found in possession of cannabis, a lighter, a vape and a substantial sum of cash. The governing body upheld the exclusion; an independent review panel (IRP) quashed that decision and directed reconsideration; on 24 June 2024 the governors reconvened and again refused reinstatement. The claimant applied for judicial review arguing, inter alia, that (i) the governors failed to construe the PEX test compatibly with the Article 4 ECHR positive protection duty to guard against trafficking and exploitation (CCE), and (ii) the governors failed to give proper conscientious consideration to reinstatement after the IRP's direction. The claimant sought, among other relief, mandatory reinstatement.

The court identified three legal issues for examination: (i) whether an Article 4 positive protection duty is relevant to the PEX decision; (ii) if relevant, whether on the facts at the date of the decision the Article 4 duty was triggered because the authorities were or ought to have been aware of circumstances giving rise to a credible suspicion of a real and immediate risk of trafficking or exploitation; and (iii) whether the governors’ reconsideration complied with the IRP direction and was lawfully reached.

The Administrative Court had accepted that public authorities (and thus schools when the duty is engaged) must act compatibly with Article 4 where the threshold is met, but found on detailed fact-finding that neither the school nor statutory agencies had reached the credible suspicion threshold by 18 January 2024 or by 24 June 2024. The judge emphasised that designated First Responders (police and local authority) did not consider the threshold met at the relevant time and that subsequent events could not be used with hindsight to upset the lawfulness of the exclusion decision. He therefore dismissed the Article 4 ground and rejected the claim that the governors’ reconsideration was so defective as to require quashing. On appeal the Court of Appeal applied the appropriate standard of review to factual findings and concluded that Fordham J’s evaluation was not wrong; permission to appeal was refused.

The court also considered (but did not decide) ancillary arguments about whether a school decision to exclude could ever be analogous to quasi-prosecutorial decisions; it expressed scepticism about that analogy but left the point for another case.

Appeal dismissed. The Court of Appeal held that, while schools must act compatibly with the Human Rights Act 1998 and any Article 4 protection duty where triggered, on the facts the Article 4 duty was not engaged at the relevant dates and the Administrative Court had not erred in its factual evaluation or legal reasoning. The governors’ reconsideration did not disclose unlawfulness requiring intervention.

Appeal from the Administrative Court (Fordham J) [2024] EWHC 2828 (Admin). Stuart-Smith LJ ordered a rolled-up hearing; the Court of Appeal heard the matter on 6 February 2025 and delivered its judgment on 19 February 2025 ([2025] EWCA Civ 147).