CM, R (on the application of) v The Independent Review Panel of PQR Academy Trust

Article 4 ECHR may require a school considering permanent exclusion to take account of a credible suspicion that a child has been trafficked or exploited, or faces a real and immediate risk of such treatment. The court assesses that threshold objectively, without hindsight, by reference to information known or which ought to have been known to the school. A general increase in vulnerability following exclusion is insufficient. Even where the threshold is met, Article 4 does not automatically require reinstatement. The obligation is to take appropriate protective steps. Where no Article 4 obligation arises, a decision-maker’s failure to address Article 4 expressly will not ordinarily be material if the child’s vulnerabilities and the consequences of exclusion were substantively considered under the applicable exclusion guidance.

The claimant, a child with social, emotional and mental health needs and safeguarding vulnerabilities, challenged the decision of an Independent Review Panel upholding her permanent exclusion from an academy. The claim originally relied on four grounds, but only the Article 4 ECHR ground proceeded to substantive determination. The claimant argued that the risk of criminal exploitation and the effect of exclusion on that risk required the matter to be remitted to the IRP. The Trust argued that the evidence did not establish an Article 4 protection duty and that the claimant’s interests had been considered in substance. The central issue was whether an Article 4 protective obligation arose at the relevant decision-making stages and, if so, whether the IRP had materially erred in law.

1. Claim dismissed. The IRP had made no material error of law. There was no Article 4 protective obligation in relation to the claimant at the material times.
2. Applying R (RWU) v A Governing Body of A Academy and London Borough of Southwark and the Court of Appeal’s judgment in that litigation, a school must take account of circumstances giving rise to a credible suspicion that a child has been trafficked or exploited within the meaning of the Palermo Protocol, or faces a real and immediate risk of such treatment. Judicial review courts may decide objectively whether the threshold was met, but must avoid hindsight and consider only information known, or which ought to have been known, to the school.
3. It was insufficient that permanent exclusion might increase the claimant’s vulnerability or make her more susceptible to criminal activity. The evidence identified a possible risk of recruitment into county lines drug trafficking, but contained no evidence that recruitment had begun, that the claimant had been exploited or groomed, or that she was close to being recruited. The risk was therefore not real and immediate.
4. Even if the threshold were met, Article 4 would not automatically require reinstatement. The protective obligation is to take appropriate steps. Permanent exclusion consistent with the statutory exclusion framework and genuinely required to protect other pupils and staff would rarely be prohibited by Article 4, although the obligation might require other steps such as reporting suspicions to the police or social services.
5. The court rejected the proposed rule that a mere prima facie case of an Article 4 obligation required the IRP to follow a structured process or reconsider the exclusion. Under R (SB) v Governors of Denbigh High School and Belfast City Council v Miss Behavin’ Ltd, the question is whether Convention rights were infringed, not whether the decision-maker followed a particular human-rights reasoning process. The IRP had considered the claimant’s vulnerabilities, the harm exclusion might cause, the support provided and the relevant guidance. Any failure to address the newly raised Article 4 argument expressly was immaterial.

The claim challenged an Independent Review Panel decision dated 12 July 2023, which upheld the governing body’s decision to confirm the claimant’s permanent exclusion. The First-tier Tribunal had separately dismissed discrimination claims concerning earlier fixed-term exclusions.