NAMBSE EDUCATION CENTRE SLIGO APRIL 28 TH 2010

Admission Policies/Section 29 Appeals Codes of Behaviour/New Guidelines Current Legal Issues David Ruddy BL

Admission/Participation policies Section 29 appeals Education Act 1998 Section 15(2)(d) “A Board shall publish an admissions policy”

Requirements of Education Act Agreement of patron Equality Rights of parents to send child to the school of their choice

Education Welfare Act 2000 section 19 (1)Refusal must be in accordance with the admissions policy (2)School entitled to be supplied with all relevant information in application form (3)BoM communicates decision within 21 days

Refusing admission in exceptional circumstances The student has special needs such that, even with additional resources available from the DES, the school cannot meet such needs and/or provide the student with an appropriate education Student poses unacceptable risk to other students/staff/school property

Section 29 Appeals against BoM decisions Expulsion Suspensions for 20days or more Refusal to enrol

Westmeath VEC v Sec General DES & Section 29 Appeals Committee High Court 2009 VEC school refuses enrolment for a “transfer” application Right of appeal committee to over turn/rewrite admissions policy

St Mologas NS Balbriggan v Sec General DES & Section 29 Appeals Comm High Court 2009 Appeals Comm no rt to reverse decision of BoM Not a placement agency Function to ensure refusal was in accordance with valid enrolment policy

Scoil Mhuire Collcotts V Sec General Des & Section 29 Appeals Committee High Court 2009 Mainstream and autistic unit School full/waiting list No 1 offered only place available No 4 brings sec 29 appeal & wins Offer withdrawn from no 1 who brings sec 29 appeal & wins No 2 brings section 29 appeal & wins School brings Judicial review/case settled/Des approve additional resources

Lucan Educate Together NS v Sec General DES & Section 29 Appeal Committee High Court Autism outreach unit Pre condition in admissions policy Section 29 appeal Holds against school-Admission policy /in breach of recent legislation Issue re-writing admissions policy

Glenageary Killiney NS V Sec General DES & Sec 29 Appeals Comm 2009 School Full Non Church of Ireland family challenged refusal to enrol Section 29 appeal favours parents School success in High Court action

Mr&Mrs X v a Boys National school Equality Authority 2009 Boys school & co educ autistic unit School refuses to enrol non autistic girl Action for discrimination fails

Section 23(3) Education Welfare Act 2000 National Educational Welfare Board (NEWB) obliged to publish guidelines Clarifies issues for schools Codes of Behaviour/ The New Guidelines 2008

Teach pupils the rules Publish the code in the pupil’s Diary/ journal Parents requested to sign code as a condition of registration Implementing & Communicating the Code of Behaviour

“ Discipline in a school is a matter for the Teachers, Principal, Chairperson of BoM, & the Board itself; not a matter for the courts whose function at most is to ensure that the disciplinary complaint was dealt with fairly” Murtagh v BOM of St. Emer’s Primary School (High Court & Supreme Court) 1991

Responsibility of Board of Management (BOM) Policy and procedures must be in place for suspensions/expulsions Pupils/parents aware of the policy All staff aware of fair procedures

Sanctions Appropriate to age and development stage of pupil Should not impact disproportionately on particular groupings i.e. members of the travelling community, special needs pupils and international pupils. Importance of pupils’ understanding the purpose of sanctions

Special Educational Needs Pupils The code should be flexible enough to allow for implementation of individual behavioural management plans but, in the case of gross misbehaviour or repeated instances of serious misbehaviour when the safety and duty of care to others is at issue, the code takes precedence.

Mrs A (on behalf of her son B v A Boys National school Equality Authority 2009 Parents of autistic boy fail to prove discrimination by school in relation to discipline

must be a clear connection with the school and a demonstrable impact on it’s work before code of behaviour applies Applying sanctions to misbehaviour outside school Student A and Student B V A Dublin Secondary School High Court 1999

The period of suspension Guidelines recommend the following options/possibilities for BoM Principal - 3 days Principal - 5 days (approval of Chairperson) BoM should put a ceiling of 10 days max in relation to particularly serious incident

Grounds for suspension Proportionate response to behaviour that is causing concern Seriously detrimental effect on education of other students Threat to safety One single incident of serious misbehaviour may be grounds for suspension

Forms of suspension Immediate suspension Automatic suspension Rolling suspension Informal or unacknowledged suspension/voluntary withdrawal Open-ended suspension

Fair procedures based on the principles of natural justice (1) The right to be heard Rt to know what was alleged misbehaviour Rt to respond If possibility of serious sanction, rt to be heard by BoM Absence of bias

State (Smullen & Smullen) V Duffy 1980 High Court No right to legal representation at BoM meetings

M (a minor suing by his mother and next friend AM) v Principal and Board of governors of Good Shepherd Primary School High Court (Queen’s Bench Division) Belfast 2003 Principal breaches fairness of procedures

Expulsion Authority to expel should be reserved for the BoM This authority should not be delegated Seek assistance of support agencies Legal advice

Grounds for expulsion Behaviour is persistent cause of significant disruption to the learning of others or to the teaching process Continued presence of pupil constitutes a real and significant threat to safety Pupil responsible for serious damage to property

Automatic/expulsion for first offence BoM can impose automatic expulsion for certain prescribed behaviours Sexual assault Supplying illegal drugs to other pupils in the school Actual violence or physical assault Serious threat of violence against another pupil or member of staff

"The Shorts Case" Timothy O Donovan -V- BOM of De la Salle College Wicklow & (Section 29 Appeal Committee) High Court Jan 2009 Judge Hedigan Expulsion

"The haircut case“ Mary Knott (on behalf of her son David Knott) V Dunmore Community College January 2009 Equality Officer Decision School Discriminates against pupil

Kirpan Case Total ban on 12 yr old boy wearing kirpan The school violated an individual’s freedom of religion. Supreme Court of Canada

Mulvey (a minor) v Mc Donagh High Court 2004 Adopted DES guidelines i.e. bullying definition must be ; repeated ongoing sustained

Cross Referencing The code of behaviour should not be seen as a stand-alone document Anti-bullying policy must be part of code Health and safety statement Admission/enrolment policy

Time Frame It is expected that the process of audit and review will be completed by September 2010 Principal’s role is to lead the audit and review and ensure implementation of the code

Separated parent challenges School policy on p/t meetings A v A Primary School Equality Tribunal 2009

Male teacher fails in discrimination case James Martin Henderson v Board of Management of Scoil Iosagain Equality Tribunal Decision 2009

Appropriate Dress for Communion Christopher Carr v Gaelscoil Mhanister na Corran Midelton Co Cork Equality Tribunal 2009

Circular 60/99 Dismissal /suspension of teachers/principal teachers

School Principal dismissed Gertie Mc Nerney v Bom of St.Patrick’s Primary school Dromard,Moyne.co.Longford Employment Appeals Tribunal 2009

HSE V Information Commissioner High Court 2008 HSE must disclose confidential information given by teachers to social workers