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

An Article 4 ECHR protection duty is triggered only where the relevant state authority knows, or ought to know, circumstances giving rise to a credible suspicion that a child has been trafficked or exploited, or faces a real and immediate risk of this. A risk that permanent exclusion will increase a child’s vulnerability to criminal activity is insufficient.

On an appeal concerning a first-instance evaluation of facts, the appellate court does not undertake the evaluation afresh. It intervenes only where the decision is wrong, such as through an identifiable error or flaw in reasoning. Even if the Article 4 threshold were crossed, it would not automatically require a school to reinstate a permanently excluded pupil.

The claimant, a 15-year-old pupil, was permanently excluded after repeated suspensions and an incident in which he was found at school with cannabis, related items and cash. The governing body declined to reinstate him. An independent review panel quashed that decision and directed reconsideration, but the governing body again refused reinstatement on 24 June 2024.

Fordham J granted permission for judicial review but dismissed the claim: [2024] EWHC 2828 (Admin). The claimant sought permission to appeal on the basis that Article 4 ECHR required the Academy to recognise a positive protective duty arising from a risk of child criminal exploitation, and to conduct an Article 4-compliant reconsideration. The central issue was whether the known circumstances met the credible-suspicion threshold for that duty when the impugned decision was made.

1. Permission to appeal was refused. Bean LJ, with whom Jeremy Baker and Holgate LJJ agreed, held that the Article 4 protection threshold had not been met when the governors refused reinstatement on 24 June 2024.

2. The applicable threshold, derived from Rantsev v Cyprus and Russia (2010) 51 EHRR 1 and applied in R (TDT (Vietnam)) v SSHD [2018] EWCA Civ 1395, requires actual or constructive awareness of circumstances giving rise to a credible suspicion that the child has been trafficked or exploited, or faces a real and immediate risk of that occurring. It is not enough to show that permanent exclusion may increase vulnerability to criminal activity.

3. The Academy had identified safeguarding concerns, made a MASH referral and shared information with the police and local authority. The latter bodies, which were designated First Responders, did not make an NRM referral before the impugned decision. Later events and the subsequent positive reasonable-grounds decision could not retrospectively establish the Article 4 trigger. Fordham J’s finding that the threshold was not crossed was not wrong.

4. The court applied the restrained appellate approach in evaluative cases. It was insufficient that the Court of Appeal might have assessed the material differently; there had to be an identifiable flaw showing that the first-instance decision was wrong. No such flaw was established.

5. Although unnecessary to the outcome, the court stated that crossing the credible-suspicion threshold would not automatically oblige a school to reinstate a pupil. It also expressed serious doubts, without deciding the point, that permanent exclusion involves a quasi-prosecutorial function analogous to criminal prosecution.

• Court of Appeal (Civil Division): Following a rolled-up hearing, refused permission to appeal after full argument.
• High Court, King’s Bench Division, Administrative Court: Fordham J granted permission for judicial review but dismissed the substantive claim and refused permission to appeal: [2024] EWHC 2828 (Admin).
• Independent Review Panel: Quashed the governors’ initial refusal to reinstate and directed reconsideration. On reconsideration, the governors again declined reinstatement.