AC-2024-LDS-000204 - [2025] EWHC 1983 (Admin)

Introductory

As it was argued before me, the focus of this challenge is not on the School’s Policy itself. The Policy is not said to be otherwise than a lawful policy which the School is in principle entitled to adopt and apply.

Nor is it being contended that, considered on their own terms as individual responses to individual instances of misconduct, each of the decisions within the scope of the claims was otherwise than a response provided for by the Policy. No complaint is made, in other words, that the Policy was not followed in imposing the sanctions prescribed in the circumstances arising (I do, however, explore this further below).

The specific focus of this challenge is instead on the relationship between the decisions impugned and the antecedent history of sanctioning each Claimant with removal from classroom teaching. It is a challenge to the cumulation of sanctions withdrawing the Claimants from whole-classroom teaching, particularly the sanction of isolation.

The Claimants’ cases are that they were each sanctioned, in the decisions complained of, against a background of repeated similar sanctioning. Mr Squires KC puts that background this way, in his skeleton argument:

Lydia spent 83 days in isolation for the 2023-24 academic year. That was over 500 hours and 43% of the academic year. This was in addition to more than 14 days’ suspension, meaning she was either isolated or suspended for nearly 100 days, over 50% of the academic year. In the first 7 weeks of the 2024-25 academic year, prior to her filing proceedings, she was isolated for a further 10 days and suspended for 2 days.

Luke spent 43 days in isolation in the 2023-24 school year as at 12 June 2024. That was over 279 hours and 26% of the academic year. This was in addition to at least 20 days’ suspension, meaning he was either isolated or suspended for 39% of the academic year. In the first 3 weeks of the 2024-25 academic year, prior to his issuing proceedings, Luke was isolated for a further 4 days and suspended for 2 days.

Elise spent 28 days in isolation in the 2023-24 school year, as at 12 June 2024. That was over 180 hours and 17% of the academic year. This was in addition to at least 44 days’ suspension, meaning she was either isolated or suspended for 44% of the academic year.

The Claimants say the decisions they complain of are rendered unlawful when viewed in this context. Their challenge comes at what is said to be the source of that unlawfulness in a number of different ways. But each seeks to impugn the decision-making in question by reference to its addition to an overall pattern or aggregation of similar decisions and their cumulative effects.

Facts and Evidence

The claims came to trial without its having been clearly resolved between the parties the extent, if any, to which they turned on disputed questions of fact – specifically as to what the School did or did not do when it made sanctioning decisions about the Claimants, what did or did not happen when the Claimants were serving periods of isolation, and what the impact, cumulative or otherwise, of the sanctioning decisions was on the Claimants.

At trial, Mr Squires KC proposed there were few if any relevant disputes of primary fact with which I needed to concern myself: to the extent that I might be required to focus on factual matters, I could straightforwardly do so by inference. Mr Coppel KC, leading counsel for the Trust, by contrast identified what he considered to be a number of significant disputes of fact, and proposed accordingly that I could and should direct myself extensively to the series of witness statements provided by Mr Moncur, the School’s headteacher, in order to resolve them.

The parties were at least able to agree on the approach by which I should be guided in approaching fact-finding questions in judicial review proceedings, and I have accordingly addressed myself to the helpful summary provided by Chamberlain J in R (F) v Surrey County Council [2023] EWHC 980 (Admin), [2023] 4 WLR 45at [50]:

In my judgment, the correct approach is as follows:

(a)

If invited to resolve a dispute of primary fact, the court should consider carefully whether any pleaded ground of challenge really requires resolution of the dispute. In most cases, the answer will be that the resolution of the dispute was for the decision-maker, not the court: the court's supervisory function does not require it to step into the shoes of the decision-maker and therefore does not require it to resolve the issue for itself.

(b)

Where the resolution of a dispute of primary fact is necessary, the court usually proceeds on written evidence: see e.g. Talpada, [2]. The court will generally do so if – as here – no application to cross-examine has been made before the start of the substantive hearing.

(c)

There is no absolute rule that the court must accept in full every part of the statement of a witness who has not been cross-examined, whether the statement is adduced for the claimant or the defendant. The court can reject evidence in a witness statement if it “cannot be correct” (Safeer , [16]-[19] and Singh, [16]). That might be so if it is contradicted by “undisputed objective evidence… that cannot sensibly be explained away”: S v Airedale, [18]. But there are also examples of courts rejecting evidence given in witness statements as, on balance, inconsistent with other written evidence: see e.g. Talpada, [48].

(d)

In some cases, the court may be unable to resolve a conflict of written evidence on a question of primary fact. In that situation, “the court will proceed on the basis that the fact has not been proved”: Talpada, [2]. This will be to the disadvantage of whichever party asserts the fact. That will generally be the claimant, because in judicial review the claimant generally bears the burden of proving all facts necessary to show that the decision challenged is unlawful. Thus, the principle that the defendant's evidence is to be preferred, save where it “cannot be correct”, arises because of the difficulty of satisfying the burden of proof where there is a conflict in written evidence, not because evidence adduced on behalf of a defendant is inherently more likely to be true than that adduced on behalf of a claimant.

The Statutory Test for Lawfulness

Grounds 1 and 3 of the challenge propose ‘breach of [the] statutory duty’ imposed by section 91 of the Act. Since s.91 applies only to disciplinary penalties other than suspension and exclusion, Grounds 1 and 3 are necessarily focused on the sanction of isolation.

There is no suggestion made that the sanction of isolation is in itself unlawful. Isolation – or removal – is a sanction recognised by the national Guidance, provided for in detail in the Policy, and, I am told, in widespread use (under various names) in schools across the country. There is no material dispute in the present case it is intended to, and does, take its place as an important deterrent sanction. It acts as a buffer stage between serious, escalating or persistent misconduct and the sanction of suspension. Suspension has a major impact on students, both in temporarily removing them from supervised education, and because (as provided for in the School Discipline (Pupil Exclusions and Reviews) (England) Regulations 2012), the accumulation of 45 days’ suspension in an academic year is the maximum a school can impose, and hence in practice a trigger for permanent exclusion from a school. Isolation is also intended to provide a secluded environment, with minimal external stimuli and distractions, in which students can regulate and reset their emotions, be supported to gain insight into their behaviour choices and develop strategies for change, and apply themselves to their curriculum work under close supervision. For students with special difficulties in regulating their conduct, it may be coupled with other interventions, or served in tailored therapeutic environments. It is intended to be an opportunity and a support mechanism as well as a penalty.

Importantly, isolation or removal is also the principal mechanism available to a school, short of suspension, for temporarily relieving staff and other students from intolerably disruptive behaviours, including in the classroom, which have resisted other solutions and which jeopardise others’ learning, wellbeing or safety.

Nor is there any in-principle challenge in the present claim to (a) the specific ‘incremental’ manner in which days in isolation are imposed, (b) the imposition of further isolation in response to misconduct in or breaches of isolation, or (c) the role of isolation in the procedure for ‘reintegration’ of a student returning from suspension. All of these are, of course, provided for in the Policy, to which objection is not made. And s.90 of the Act confirms in principle that a disciplinary penalty may be imposed for conduct which consists of a failure to comply with a previous penalty.

The present claim proposes instead that sanctioning these particular Claimants with isolation was not lawful on the occasions objected to because that was not ‘reasonable in all the circumstances’ (s.91(3)(b)). Ground 3 proposes that repeatedly imposing isolation on the Claimants, and therefore the repetitious quality of the decisions objected to, amounted to imposing disproportionate and otherwise unreasonable disciplinary penalties. Ground 1, as argued before me, proposes that not only does s.91 prohibit penalties which are (objectively) unreasonable, it renders unreasonable, and therefore unlawful, any penalty imposed otherwise than by a process of individual consideration of its proportionality to all the individual circumstances of a pupil. In particular, it is argued, it requires consideration of the impact of the sanction on the pupil, its likely effectiveness, and review of the alternatives available. Ground 1 proposes that the School failed to consider the cumulative impact, effectiveness and alternatives, in the decisions challenged, and thereby rendered its decision-making unlawful.

It is proposed therefore that s.91 imposes both a procedural duty (Ground 1) and a substantive duty or a duty of outcome (Ground 3). Mr Squires KC derived the procedural duty by reading s.91(6) as directed in effect to the individual member of staff contemplating the imposition of the sanction. He notes the reference in s.91(6)(a) to ‘proportionality’ and reads that in its widest sense as a key general determinant of reasonableness. He notes the reference in s.91(6)(b) to matters ‘known to’ the decision-maker; he argues that the (non-exhaustive) list there points to ‘a holistic assessment including of a child’s wider vulnerabilities which might make the penalty unsuitable for them, and any circumstances which may have contributed to a course of poor behaviour’.He argues that s.91 is directed to the protection of children being sanctioned, and that that must necessarily require ‘contemporaneous consideration of proportionality by the decision-maker’. He says: ‘If a child has been isolated 30, 50, 80 days already in a school year, and that is leading to no perceptible improvement in behaviour (and indeed may be counter-productive), and if it is having a profound impact on the child’s education, self-esteem, socialisation etc that is obviously relevant to any determination of whether imposing ‘a penalty’ on them on a particular occasion is proportionate’.

Whether s.91 creates a procedural duty or not was agreed by the parties to be a question of statutory interpretation and therefore a question of law. I was taken to no authority directly on point to help me resolve it. That is perhaps not surprising. Section 91 is not on the face of it a complex or unusual provision, and the suggestion that it imposes a discrete procedural duty is not, so far as I have been made aware, anywhere precedented in the caselaw or in practice (I consider further below the line of argument put to me that the Guidance supports the contended inference of a procedural duty).

Section 91 does not impose any duty, explicitly. That is an important starting point. Instead, it sets out three conditions to be fulfilled in order to render a school disciplinary penalty lawful. Two of the conditions have to do with the authority by which the penalty decision was made. It has to be a decision taken by an appropriately authorised member of school staff (subsection (4)). And it has to be a decision taken and carried out while the pupil was under the authority of the school (subsection (5)). The third condition is that the imposition of the penalty on the pupil is not otherwise unlawful and ‘is reasonable in all the circumstances’ (subsection (3)). That is a plainly and simply worded statutory objective test by which the lawfulness of a penalty must ultimately fall to be assessed by a court, if challenged. And it is specific: a court must assess the imposition of the penalty on the pupil.

In determining whether that test is met must, by s.91(3), the court have regard to all the relevant circumstances. Section 91(6) is expressly drafted as being ancillary to the process of making that determination of reasonableness under subsection (3)(b). It provides that it will always be relevant to take into account two distinct matters. The first is ‘whether the imposition of the penalty constitutes a proportionate punishment in the circumstances of the case’. On any ordinary reading of that language, it is focused on the penal quality of the sanction: whether it is a punishment in proportion to that which is punished. The second is ‘any special circumstances relevant to its imposition on the pupil’ – such as age, special educational needs, disability and any religious requirements – which the decision-maker was or should have been aware of. These are specific, separate, and mandatory considerations in determining whether the penalty is reasonable in all the circumstances. It is plainly a non-exhaustive list.

‘Reasonable in all the circumstances’, in other words, is an evaluation in the round, but necessarily considering whether a sanction is (a) in proportion to the infraction and (b) appropriate to any special circumstances of the child, including age-appropriate and appropriate to a child’s SEND and religious requirements – if any such special factors exist and the decision-maker was or ought to have been aware of them.

Section 91 is, therefore, a provision which limits the disciplinary powers of school staff. It is not visibly concerned with imposing duties of any sort on them – otherwise than straightforwardly by way of the inherent constraint to acknowledge the limits of their powers. I find no ambiguity in its drafting, and no space – and certainly no necessity – for inferring individuated procedural duties about how disciplinary decisions are to be taken in schools, capable of vitiating a decision otherwise than on a substantive basis. In my judgment, Mr Squires KC’s proposed extrapolation along these lines cannot be reconciled with the plain language and structure of this section.

I bear in mind that this section applies to all disciplinary penalties short of exclusion. It has to be made sense of not only in relation to the imposition of the most serious penalties, in the most complex circumstances and with the most strategic overview, but also in relation to any question of the lawfulness of any sanction short of suspension. It has to map across to the everyday business in real life of dealing in the moment with the immediate facts of an infraction in the available context. It does that by placing schools in legal jeopardy, on a case by case basis, of sanction decisions which are unauthorised or unreasonable – decisions they have no power to make. That is a substantial jeopardy, which schools need to manage strategically with their policies, procedures and training. But the statute shows no sign of trying itself to control how that is done – much less to control procedure at the level of individual decision-making.

I bear in mind also that the section has to be made sense of in broader terms as to how far Parliament has in this provision made it the business of a court to regulate school disciplinary practice and procedure, over and above ordinary public law requirements. Section 91 sets the outer limits of what may lawfully be imposed on a pupil by way of a disciplinary penalty. Those limits are enforceable by a court. They are limits on the disciplinary powers of schools. Within them, the statute on its face leaves the matter of disciplinary policy and practice to schools, subject of course to ordinary public law principles. So on a challenge to any imposition of a penalty on a pupil, a court may potentially have two functions. First, it may be asked to adjudicate on whether or not the limits of the school’s powers to sanction a pupil have been exceeded, including by applying the statutory ‘reasonable in all the circumstances’ test. Second, it may be asked, as a court of review, to consider whether, even if the school’s powers have not exceeded the s.91 limits, the decision amounts to an exercise of discretionary power which is defective on any public law ground – for example because of the way it was made.

The two roles may overlap, and may do so extensively. Mr Coppel KC put it to me that the section 91(3)(b) test itself after all simply resolves itself into a public law test of (ir)rationality. But Parliament has articulated the statutory test in its own way, and a court must respect the task it has been set on a section 91 challenge. A court must also be ready, if its public law review functions are engaged, to review the exercise of its discretion by any school imposing an otherwise lawful disciplinary penalty, according to public law principles.

Analysing the Challenge

The challenge made in this case, in its essence, proposes that any and all of the most recent isolation penalties imposed on the Claimants were unlawful because they were not reasonable in all the circumstances within the terms of section 91. It is said they were not reasonable having regard to the mandatory factors set out in s.91(6), and having regard to all the other relevant circumstances. Included in those circumstances is the School’s history of repeatedly and cumulatively sanctioning these Claimants with isolation (and suspension). The decisions are also said to be defective because they did not in fact take all the factors that were properly relevant to them – including that history – into account.

That is how the merits of this challenge were argued out before me. It is not quite how the challenge was pleaded, nor precisely how it was presented. But exercising my permission-stage functions in this rolled-up matter, and holding in mind the territory traversed over two full days of hearing, I need to be able to consider the full merits of this challenge at their highest, and within the bounds of matters which I can be satisfied the Defendant has had a fair opportunity to address.

I can do that in the first place by concentrating on what is in essence the s.91 lawfulness challenge raised by Ground 3, for which I can grant permission. If the impugned decisions do not pass the statutory test, that is dispositive on the question of their lawfulness.

If they do pass the statutory test, I may need to consider the merits of the procedural challenge along the lines that the decisions were nevertheless not properly and lawfully made. But I am not assisted in doing so by the terms of the challenge set out in Ground 1. I find no basis in the wording of the statute, or by reference to principle or practicability, for recognising a statutory procedural duty along the lines proposed. I do not consider that proposition even to cross the threshold of arguability, and I cannot grant permission for that challenge. Before me, however, the challenge on Grounds 1 and 2 were argued in parallel, with Ground 2 being advanced as the clearer case. To the extent that the Guidance structures discretionary decision-making in the imposition of isolation, I can look at the procedural arguments made to me in that context. I can also consider whether there was an insufficiently flexible approach to the decision-making in Lydia’s case. So I will grant permission on Grounds 2 and 5 and consider the procedural decision-making under those headings. And finally, I will consider the human rights (and remedies) challenge made under Ground 4, both as to permission and merits.

Ground 3: Statutory Unlawfulness

Preliminary

The claims make no distinction between any of the isolation decisions impugned. They are all and each said to fail the test of ‘reasonable in all the circumstances’, and all for the same principal reason, relating to their repetitiveness.

Section 91 requires the test to be applied in the first place by considering whether the imposition of each penalty constitutes a proportionate punishment.

In Luke’s case, we are looking at (a) two awards of post-suspension ‘re-integration’ isolation, in July (3 days) and September (1 day) 2024; each episode was one of seriously dysregulated physical behaviour involving actual or threatened violence to staff or a fellow pupil; (b) two awards of ‘infraction’ isolation a little over a week apart in September (the first for one day, the second for two days) for refusing to attend or remain in classes; and (c) two awards of ‘repeat’ isolation (one day each, the second undertaken over two half days) for failing to complete an isolation sanction satisfactorily.

In Lydia’s case, we are looking at (a) four awards of ‘infraction’ isolation over September and October 2024 (respectively for one day, two days, one day and three days), for defiance and disruption in class or walking out of class; and (b) two awards of post-suspension ‘re-integration’ isolation, a month apart, in September and October 2024 (three days each); each episode of suspension was awarded for seriously disruptive behaviour while in isolation.

Section 91 also requires the test to be applied by taking into account any special circumstances relevant to the imposition of the pupil known (or which ought reasonably to have been known) by the decision maker, including age, SEND and any religious requirements.

No argument was made to me that isolation was not age-appropriate for these Claimants. No religious issue was raised.

Luke was on the SEND register on arrival at the School, and over a process of testing and assessment an increasingly refined understanding of his special needs was being developed. Elise had been assessed at the School as not having special needs, although the possibility of dyslexia was latterly being reinvestigated at her alternative placement. She did however have a history of self-harming. These are matters which section 91 indicates need to be considered in an assessment of ‘reasonable in all the circumstances’.It was not suggested that there were any comparable personal factors special to Lydia of which the School was, or ought to have been, aware at the time (questions about possible SEND issues in her case have recently been raised and are being investigated).

‘All the circumstances’ are not exhausted by the mandatory considerations set out in s.91(6). The fact that special factors personal to the individual pupil are specified does not encourage a view that all factors personal to an individual pupil will always necessarily be relevant. The question of relevance needs to be considered on a case by case basis.

The challenge in the present case is that individual disciplinary history should be regarded as a relevant consideration – that it is an important circumstantial factor in the objective assessment of reasonableness. The individual pupil’s disciplinary history, or record, is likely to feature in the assessment of ‘proportionate punishment’ in any event: the relationship between the penalty and the infraction may require the infraction to be considered in the context of previous misconduct and penalties. The distinctive feature of the present challenge is, however, the proposition that the School’s history of disciplining the individual, and its consequences, be taken into account in the overall assessment of what is reasonable and therefore lawful.

I do not think there can be a difficulty in principle with disciplinary history being considered in the round as part of ‘all the circumstances’ – in an appropriate case. There is no exclusionary rule to be derived from section 91 to prevent that. A focus on the relationship between punishment and infraction does not eliminate the possibility that the repetitive nature of either or both could have a bearing on the reasonableness of the sanctioning – either way. So in principle I agree with Mr Squires KC that that may be a relevant circumstance.

I am, however, going to proceed in the present case on the basis, as advanced by the Claimants and not materially disputed, that (a) the repetitive use of isolation is a distinctive matter in its separation of pupils from ordinary classroom teaching and restriction on interaction with other pupils, setting it aside from other disciplinary measures and (b) the sheer degree to which it has been applied in the present cases is also distinctive. Those are limiting factors on my entertaining the potential relevance of disciplinary history to assessing reasonableness in the present case. I am also going to proceed on the basis that the relevance of disciplinary history to reasonableness is not to be assumed even so – it needs to be demonstrated to be a material factor on the particular facts of an individual case.

I say that because I can see no in-principle argument – and none was put to me – that repetitive sanctioning has any inherent quality of potential unreasonableness. On the contrary, persistent misconduct can be expected, all else being equal, to be met with persistent, and indeed escalating, sanctioning. That is certainly the expectation set up in the School’s Policy, and the Policy is not challenged by this claim. So I am going to investigate the potential relevance of repetitiveness to proportionality of penalty, and to the wider reasonableness assessment, on the basis Mr Squires KC asked me to: by reference to criteria of impact, effectiveness and available alternatives.

As a preliminary matter, looking then at each of the impugned decisions, and considering them individually in the first place simply as a matter of the relationship between each imposition of isolation and each infraction for which it was imposed, I have already noted that I heard no substantive challenge made on ‘proportionate punishment’ grounds. Each sanction was in accordance with the Policy. The following are notable features of both Luke’s and Lydia’s cases.

First, each ‘infraction’ sanction of isolation was imposed against a history of persistent lower-level misconduct, and each involved either failure to attend and be taught in a classroom, or disruption to their own and others’ classroom learning. Removal from the classroom to a different learning environment is on the face of it an appropriate response from the point of view both of the individual and the rest of the class. I did not hear that challenged as such.

Second, Luke’s ‘reintegration’ isolation followed periods of suspension for seriously unacceptable and dangerous physical behaviour. The proportionality of suspension to this misconduct is not disputed. The periods of reintegration following suspension had an important purpose to serve in establishing insight and readiness to accept the social discipline on which classroom learning depends. I do not understand that to be disputed as such; it is what the Policy sets out.

Third, both Claimants struggled to meet behavioural and learning expectations not only in the classroom but in isolation itself, notwithstanding close supervision, the reduction of external stimuli, and one-to-one support conversations. The periods of ‘repeat’ isolation had an important purpose to serve both in enforcing and reinforcing the original penalty, and in further testing and supporting the individual Claimant’s readiness to resume the greater demands of self-discipline and socialisation in a classroom setting. Again, that is what the Policy provides, and I do not understand that to be disputed in relation to the individual decisions impugned per se.

There was, in summary, no developed challenge in this case made to the individual decisions, taken separately and in their own terms alone, on the basis of a disproportion between the sanction and the proximate infraction to which it was a response. That is itself an important factor in considering ‘reasonable in all the circumstances’.

Effectiveness

Turning then to the challenge based specifically on repetitiveness, Mr Squires KC objected that it was evident that, for these Claimants, isolation ‘was not working’. Their misconduct persisted, notwithstanding repeated periods of isolation. More than that, isolation itself was something they were finding difficult to tolerate, and their frustration at being repeatedly in isolation was positively contributing to their misconduct and resulting in yet more isolation. They were trapped in a destructive loop. Isolation was an ineffective sanction. It was in these circumstances unreasonable.

This proposition that isolation was not working was one Mr Squires KC asked me to infer principally from the facts of (a) the repeated imposition of isolation, (b) the incidence, within that history, of ‘repeat’ isolation – that is, responding to failure to undertake isolation acceptably with requirements for further isolation, and (c) the Claimants’ persisting misconduct record. But whether or not a sanction is ‘working’ cannot be judged from those facts alone. I remind myself of the objectives of the Policy. Even leaving aside the undoubted ‘effectiveness’ of isolation in temporarily relieving classrooms of disruption, its ‘effectiveness’ in relation to individual students is to be judged by its contribution to a wider plan for developing their self-discipline and the social and learning skills on which their academic achievement is said to depend. That plan depends in turn on the security of consistency and predictability of sanctioning for the student, and on the commitment of the School to the support and development of every student according to its ethos. The expectation is that in the case of students, such as the present Claimants, whose early years at the School are characterised by real difficulties in acquiring that discipline and those skills, the sanctioning aspects of the Policy may need to be intensive at the start as the whole Policy is internalised, or learned, but that ‘effectiveness’ or ‘success’ will manifest itself over time in a gradual shift from sanction to reward, from misconduct to achievement. Those time spans may have to be measured in years in the case of the students struggling the most.

It is Mr Moncur’s evidence that the longitudinal effectiveness of the Policy in the case of the Claimants can be, has been, and needs to be, judged on a considerably more refined basis. In the case of Elise, it is accepted that a point was reached when the School’s scheme of sanctions did have to stop being applied. It had reached the limits of its potential. Her difficulties were such that she was moving inexorably closer to the ultimate sanction of permanent exclusion by reason of the 45 day limit on suspension. The Trust prides itself on the completeness of its commitment to every child whose parents choose its schools, and on the fact that, in all the schools it runs in Leeds, it has only ever had to exclude one student in the last twelve years (and not at the present School). So a radical, but conserving, option of alternative placement was taken instead for Elise. That is put forward as an example of how ‘not working’ needs to be judged; and carries no implication that the Policy should have been set aside or applied differently any earlier. In Luke’s case, the School’s evidence is one of optimism that the Policy as a whole is indeed working, particularly in conjunction with the interventions and support which have been provided in relation to his SEND as they have been increasingly understood and responded to. He is more settled and making progress with his self-management and social and learning skills; his academic achievement is improving and he is being sanctioned less – including incurring fewer penalties of both ‘infraction’ and ‘repeat’ isolation. In Lydia’s case, again the School’s evidence is that the high incidence of repeat sanctioning has been subsiding recently, she is happier, and with increasing maturity and acclimatisation to the School’s ethos she may be turning a corner.

There was a line of challenge to the effect that I cannot properly accept this as evidence of the sanctioning ‘working’. It is argued that the diminution in the sanctioning of Luke and Lydia should be understood not as a signifier of the effectiveness of the School’s Policy, or of their own responsiveness to it, but as a direct response by the School to the threat and commencement of these proceedings. It is a challenge made on the basis of ‘a striking drop in their rates of isolation since proceedings were filed’ – said to be by around two-thirds. It is a challenge that any improvement in their behaviour was a result of the School’s easing off sanctioning, not the other way around, and generally of its being more attentive and supportive to them under the spotlight of legal proceedings. This line of challenge was emphatically and unequivocally rejected in Mr Moncur’s evidence. It is accepted that these proceedings caused the School to adjust its school-wide record-keeping policies, so as to require more details to be kept of occasions on which sanctions were not imposed for misconduct, or were imposed in modified ways tailored to an individual student. It is not accepted that the underlying application of the Policy was altered, in relation to these Claimants or at all.

The challenge was nevertheless maintained before me in what Mr Squires KC proposed was an essentially inferential case, and what Mr Coppel KC characterised as a significant dispute of fact. But my starting point on either basis has to be that the effectiveness of any individual sanction (a) is not only a matter to be considered longitudinally over a time span which will vary as to any individual student, but also (b) must be acknowledged to be a single element only in the complex and multifactorial assessment of a student’s progress and the influences operating on it one way or another, and (c) is ultimately a matter of professional educational judgment.

If I apply the guidance of R (F) v Surrey CC, I have to start by asking myself whether I need to come to any conclusion in the dispute about whether isolation was ‘working’ for the Claimants by supporting their progress as the School maintains, or conversely whether it was only when they were isolated less that they progressed more as the Claimants maintain. There is not, even on the most generous interpretation of the ground of statutory unlawfulness advanced, a challenge in this case to the Claimants’ general educational progress.I am looking at this matter of effectiveness for the purpose of considering whether the sheer amount of time they had already spent in isolation (or on suspension) is a factor tending to render the latest awards of isolation disproportionate and ultimately unreasonable and unlawful. I cannot infer that simply from the facts of repetition. I cannot infer it from the rate of an individual’s progress or lack of it, and I have limited evidence as to that in any event. I could not infer, from a change of approach to isolation even if there had been one, that the previous approach was not working. The question of whether any particular repeated sanction is or is not effective, or working, for an individual student is ultimately not severable from the question of whether any whole scheme of sanctions, or any wider behaviour and discipline policy, or any general educational ethos, or any school, is or is not working for them.

I doubt this is in the end a justiciable question at all. In any event, even taken at its highest, the Claimants do not come close to raising a factual case from which I can properly infer that they were not progressing either because of the historical imposition of isolation or regardless of it, nor that they were progressing because of a reduction in isolation attributable to the issue of these proceedings. Those submissions presuppose an unrealistically reductivist approach to what effectiveness could possibly mean in this context. I cannot proceed with an analysis of the lawfulness of the decisions impugned on the basis that isolation was, for the Claimants, an ineffective sanction.

Impact

I turn then to the matter of the impact of isolation on the Claimants. Here, the submissions made to me can be grouped under two broad headings. The first has to do with the personal experience of each Claimant of the isolation sanctions imposed on them. The second has to do with its impact more broadly on their educational experience. I consider them in that order, and I begin the former by addressing myself first to the mandatory considerations in section 91(6)(b).

As already set out, of the mandatory considerations, the only one of any suggested direct relevance is SEND status. At the relevant time, neither Elise nor Lydia was assessed by the School to have SEND status. Luke’s SEND status had been on the School’s radar from the outset, and had been gradually explored, producing increasingly focused diagnosis and targeted interventions and adaptations to support him. There is no challenge in the present claim to the assessment and management of any Claimant’s SEND status. These are matters of specialist expertise and I was given no basis for proceeding otherwise than by respecting the School’s approach.

So far as Luke is concerned, there is documented history of the School’s attentiveness to the potential contribution of both external stimuli and communication difficulties to his struggles with regulating his conduct. Isolation is designed in general as an environment in which both external stimuli and expectations of communication are reduced to a minimum, in order to assist with self-regulation. I can see from the records that the School’s SEND strategy for Luke developed to include undertaking isolation, when imposed, in a special therapeutic environment rather than in the standard isolation rooms, with individualised support; and that the idea of undertaking isolation in half-day segments, with the remainder of the school day at home, was developed with his particular SEND status in mind. I received no developed submissions or sufficient evidence that Luke’s SEND status was a specific factor going to disproportionality or unreasonableness in the repetitive application of isolation sanctions to him.

(I regard Elise’s history of self-harm, and possibly her substance abuse, as a factor which would have been potentially relevant to the s.91 test had she been sanctioned with isolation in the relevant period of this claim. My attention was drawn to the School’s record of the fact that her mother had at one point suggested to the School a connection between being placed in isolation and Elise’s self-harming. That is the only evidence I was shown of any such possible causal connection being alerted to the School. I bear in mind that the records also suggest that Elise herself attributed her self-harming at the time to problems in her relationship with her mother. (She says in her evidence for these proceedings that her self-harm was triggered generally by her mood: isolation was associated with low mood but was not unique in that respect.) Self-harm in the early years of secondary school is clearly a matter of important mental health concern and almost certainly of some antecedent history and complexity. It would have been quite wrong to speculate about the impact of any sanction one way or another in such circumstances, and I was given no sufficient basis for being able to do otherwise.)

More generally, the Claimants themselves have provided accounts in their witness evidence of experiencing isolation as unproductive, unpleasant, stressful and distressing. To some extent, those accounts would inevitably have to be regarded as falling squarely within the four corners of any basic description of the penal nature of isolation. It is stigmatising. It separates students from their friends during the school day. It subjects them to close supervision. It is deliberately under-stimulating. It is intended as such to be a deterrent and a sanction. Its status as a sanction is not challenged as unlawful or unreasonable per se.

According to the Policy, isolation also serves purposes for individuals other than deterrence and sanctioning. It is intended to support reflection and recalibration, de-escalation and strategies for the future, and undistracted application to relevant work. It is also intended to provide a stepping stone – a managed intermediate stage – between suspension and a return to the classroom. To some extent the Claimants’ accounts do go beyond describing its punitive impact and suggest that their experience of isolation was that it was defectively administered in these more positive respects, and was otherwise than in accordance with the School’s policies and protocols. They suggest, for example, that on occasion they had experienced a failure to provide the one-to-one conversations, or that they were not provided with curriculum-compliant work or enough learning support to enable them to keep up with classroom teaching afterwards. To that extent, their accounts are disputed by the School, and to at least some extent challenged by contemporaneous records. But in any event, there is no formal or clearly articulated challenge in this case to the School’s compliance with its own, highly detailed, policies and protocols as to the administration of isolation. The challenge to the lawfulness of isolation in the present case is to its repetitiveness, not to the way it was administered in execution of the particular decisions complained of or by reason of an antecedent history of maladministration. That would be a different kind of claim altogether, and one in which the question of the exhaustion of the School’s internal complaints procedure would have had to come to the fore.

In these circumstances, I cannot easily detect a factor relating to its special impact on these Claimants personally, capable of being weighed significantly in the balance against its reasonableness in the decisions impugned. The argument was, however, advanced that the sheer number of days accumulated in isolation and suspension must be capable of being weighed as such a factor – in the case of these or any other students – when its overall impact on their experience of education is considered.

Here, in my view, we get to the essence of this challenge. Although I was encouraged to conclude that something had gone wrong in the present case by the deployment of a quantity of objections of various sorts to these Claimants’ experience, at the heart of the challenge is the matter of the reasonableness of the School’s having engineered an outcome in which the Claimants had spent anything up to a fifth, a quarter, or approaching a half, of an academic year removed from classroom teaching. And that is the core question with which the court is being asked to grapple. Doing so, however, demands confronting another core question: what was the alternative?

Alternatives

There is not an obvious answer to that last question. The claims themselves do not suggest what they say the School should have done instead of pursing its course of imposing isolation (or suspension) on an issue-by-issue basis and in accordance with its Policy. It is a question I asked directly at trial, and the opportunity was not taken to assist me beyond proposing ‘less isolation’.

Looking at the question of alternatives on a purely theoretical basis, it is plain that any of them must present significant potential problems, for the School and for the individual Claimant.

Imposing isolation on fewer occasions, or for fewer days at a time, would have meant imposing a lesser penalty, or imposing no penalty at all, in circumstances where the Policy indicated that that was not appropriate. There is evidence, including in the Claimants’ own records, that the School did that from time to time. I consider the question of flexibility in more detail below. But for present purposes it suffices to note the potential at least for inconsistency to introduce inequity into the School-wide application of the Policy and to undermine the positive impact it was intended to have for the individual student (including by trying to help them reduce the risk of repetitive failure in a classroom environment). And of course proposing ‘less isolation’ has to get to grips with the problem in at least some cases of demanding the toleration of more disruption in the classroom or in isolation itself, and the impact of that on those directly affected.

But the more pressing question has to do with the extent to which isolation is already an alternative sanction – an alternative, that is, to suspension. For serious or persistent misconduct, and for intolerable and relentless classroom disruptiveness, removal to isolation offers both School and student a vital alternative to removal from school altogether. It keeps a student in supervised and supported education during the school day. It offers a structured way back to the classroom. It avoids where possible the accrual of a suspension record which ultimately becomes a conveyor-belt to school exclusion.

This challenge was put to me on the basis that the obvious alternative to the number of days these Claimants spent in isolation was fewer days in isolation and more days in the classroom. That is far from obvious. In the case of Elise and Luke the salient feature of their misconduct record was the gravity of some of it, not excluding physical violence; in the case of Lydia it was its sheer persistence and the picture that presents of a student who had not yet managed to find her bearings within the School ethos at all.

In Elise’s case, the repetition of isolation has to be seen in the context of the accumulation of suspension notwithstanding, and ultimately in the context of alternative placement as the only available means of avoiding imminent exclusion; the School may be thought to have persisted with the lesser and more positive intervention of isolation as much as it could. In Luke’s case, the repetition of isolation has to be seen in the context of the development of a personalised SEND strategy capable of supporting him to tolerate, engage with, and ultimately flourish in, a classroom environment (his mother suggested that he had spent much of his latter time at primary school being taught outside class in a corridor). In Lydia’s case, the repetition of isolation has to be seen in the context of a question, as to which the answer is perhaps only now starting to emerge, of whether this particular School, its ethos and its Policy, were the right choice for her at all.

There is no obvious default in any of these cases simply to ‘less isolation’. The cumulation of time spent in isolation has to be considered not only through the negative lens of timeout of the classroom, but through the positive lens of time in the School. To put it another way, the reverse side of the coin to the complaint of their disrupted classroom education is the prospect that isolation is designed to hold out to struggling students of remaining in school education as much as possible, and in due course transitioning back to the classroom and making a success of it rather than being set up for repetitive failure.

Isolation is, in the end, designed to be an opportunity and a safeguard as well as a sanction. For students really struggling to comply with the School’s highly structured conduct expectations it is designed as a buffer zone, protecting them from more frequent suspension and its cumulative propulsive effect towards exclusion (or indeed a decision to withdraw a student from the School), and to offer resources to help them keep holding suspension at bay. As a minimum, it is designed to slow, and in due course reverse, a struggling student’s progress in the wrong direction. Where any student is positioned at any one time in that process is again a matter of holistic and professional educational judgment. The Claimants in this case were at the very least plainly at risk of progress in the wrong direction. That is inescapable context for considering the question of repetitive isolation, and its alternatives, in their cases.

Conclusions

This challenge by reference to section 91 of the Act requires me to consider in the first place whether the imposition of isolation in the decisions complained of constituted ‘a proportionate punishment in the circumstances of the case’, whether there were ‘special circumstances relevant to its imposition on the pupil’, and whether, looked at in the round, these sanctions were ‘reasonable in all the circumstances’. I have looked at that, as the Claimants asked me to do, not only by considering the proximate reasons for which the sanctions were imposed, but by factoring in the antecedent history of repeat sanctioning by isolation as a potential factor of relevance to either proportionality or reasonableness. And I have done so, again as requested, by having particular regard to whether the effectiveness, impact or available alternatives to these sanctions can be weighed in the balance against their reasonableness. For the reasons I have given, I have not been able to conclude that the Claimants have made out a case that the sanctioning decisions complained of constituted the imposition of a disproportionate punishment or were not reasonable in all the circumstances.

Isolation is a lawful sanction. It was imposed here in accordance with a Policy the lawfulness of which is not challenged. Repetitiveness is not intrinsically or inevitably disproportionate or unreasonable in circumstances of repetitive misconduct. No fully developed or sufficient case was made to me that there were special factors about these particular Claimants capable of tipping the balance towards the disproportionality or unreasonableness of the sanctions, other than repetitiveness. I have not been able to find that, on the case put to me, considerations of effectiveness, impact or the availability of alternatives are capable of rendering the element of repetitiveness in this case a factor that can bring down the balance in all the circumstances on the side of unreasonableness. I cannot find the isolation sanctions impugned in these proceedings to fail the test set out in section 91. I cannot conclude them to have been statutorily unlawful.

The analysis set out above goes a little beyond what Mr Coppel KC submitted was required by or appropriate to the section 91 test. He may well be right that Parliament did not envisage the incursion by a court into evaluation of the professional decision-making of schools even to the extent to which I have explored it in this case. Had I been minded to find unlawfulness in the present case, that is a matter which would certainly have required more granular consideration. It will be noted nevertheless that in my analysis I have had occasion to recognise the necessity of acknowledging where I am encountering matters of professional expertise and judgment. For present purposes, it perhaps suffices simply to note the potential application to the section 91 test of the observations of Linden J in R (TTT) v Michaela Community Schools Trust [2024] EWHC 843 (Admin),[2024] PTSR 1627 at [168] – where he was dealing with the human rights test of proportionality in the context of school decision-making, and allowing for that difference of context:

Ultimately, the question is whether the measure in question is proportionate. That is for the court to decide. In arriving at an answer to that question, however, the court will make allowance for the breadth of the decision-making power conferred on the decision-maker by Parliament and it will give appropriate weight to the relative expertise of the decision-maker where they have made a judgment on an issue which is within their sphere of expertise, even if that judgment is made after the event. … all other things being equal the better the quality of the decision-making process, and the greater the relative level of expertise of the decision-maker, the greater the weight which their judgment is likely to be given by the court, and vice versa.

I turn next to the challenge in this case going to the specific quality of the decision-making in question. But as a general observation in concluding the above analysis, it may be fair to observe that the assessment, management, teaching and development of particularly unsettled or struggling students – students exhibiting persistently or seriously challenging behaviours – are matters where educational judgment and expertise may be thought especially at a premium.

Grounds 2 and 5 – Quality of Decision-Making

The requirements of the Guidance

As the Guidance itself sets out, it is non-statutory in nature, and operates in the field of good practice by schools. It recognises that as such (a) it must defer to the legislative scheme, and (b) ‘it is for individual schools to develop their own best practice for managing behaviour’. The Guidance aims to support schools in that task. It notes that ‘creating a culture with high expectations of behaviour will benefit both staff and pupils, establishing calm, safe and supportive environments conducive to learning’. The Guidance does not impose legal obligations, but there is no dispute in the present case that schools are expected to have regard to guidance of this sort, and to apply it unless there is good reason not to.

The challenge based on the Guidance, as put to me, was closely bound up with the argument (for which I have refused permission) that section 91 of the Act imposes a procedural duty on schools irrespective of the outcome of their decision-making. It was put to me in particular that the Guidance was evidence for that duty. The passage on which particular reliance is placed for this effect reads ‘As with all disciplinary measures, schools must consider whether the sanction is proportionate and consider whether there are any special considerations relevant to its imposition (see ‘What the law allows’ and ‘Responding to the behaviour of pupils with Special Educational Needs and/or Disability (SEND)’).’

The Guidance is not evidencefor a statutory procedural duty. The interpretative hierarchy works the other way around. The cross-referencing in this passage is plainly to the words of section 91 and the (substantive) test of lawfulness. This passage clearly reminds schools of that test and of the need to bear it in mind as a limitation on their sanctioning powers both in developing their own best practice for managing behaviour and in making any sanctioning decisions, isolation included.

The ‘Removal from classrooms’ section of the Guidance, set out above, provides guidance starting at the highest level (a reminder of the s.91 test and of the purposes of isolation); proceeding through issues of policy and governance at whole-school levels; and concluding with a section on good practice ‘when dealing with individual removal cases’. Of particular relevance to the present case are the points of advice that headteachers and teachers should, on a case-by-case basis, (a) ‘consider whether any assessment of underlying factors of disruptive behaviour is needed’ and (b) ‘facilitate reflection by the pupil on the behaviour that led to their removal from the classroom and what they can do to improve and avoid such behaviour in future’. I can see the second of these reflected in the School’s isolation protocol – that is the purpose of the scripted one-to-one conversations which are to take place in the course of a day in isolation. The encouragement to consider whether an assessment of underlying factors of disruptive behaviour is indicated has a more strategic quality, potentially of particular relevance in repeat isolation cases. And perhaps most relevantly of all, the section finishes by advising that ‘Pupils should not be removed from classrooms for prolonged periods of time without the explicit agreement of the headteacher. These pupils should be given extensive support to continue their education including targeted pastoral support aimed to improve their behaviour so they can be reintegrated and succeed within the mainstream school community.’

Pausing there, it is notable that the Guidance does acknowledge the possibility of pupils being removed from classrooms for ‘prolonged periods of time’ as being at least potentially consistent with good practice, albeit subject to senior oversight, and to the provision of ‘extensive support’ to help with reintegration. ‘Prolonged periods’ is language more naturally indicative of protracted spans of continuous removal rather than to cumulated totals of short periods. Nevertheless, I consider it a straightforward reading of the Guidance here that it advises attention to the cumulation of time removed from the classroom in individual cases and appropriate escalation of decision-making and individual support for students. On that basis, I agree with Mr Squires KC that the Guidance is a source of expectation that in the case of cumulation totals at the levels applied to the current Claimants, schools will consider their position strategically. It is not, however, a source of expectation that the outcome of that consideration will necessarily be an immediate halt to or reduction of the sanctioning. The focus is very much on addressing the underlying behaviours with a view to reducing by that means the occasions on which sanctioning is called for.

It is Mr Moncur’s detailed evidence that the School has throughout the relevant period provided precisely the kind of senior and strategic overview contemplated by the Guidance, including in respect of the three Claimants in the present case. He explains that the School operates a ‘tier system’ ‘in order to track children who are receiving a high number of behavioural sanctions, and to enable us to consider whether any further or different steps should be taken to assist those children’. A pupil who has received more than two isolations in a school year is placed in tier 3. A pupil who has been suspended goes into tier 4. A pupil who has been suspended more than once goes into tier 5. But the tier levels are kept under review and are subject to adjustment. The higher the tier level, the more intensive the tracking and monitoring. There is a review process as a standing agenda item on the School’s senior leadership team meeting. Mr Moncur says this about it:

At the weekly SLT meetings, from November 2022 to the present, we have discussed how many children are in the higher tiers, the number moving into and out of the higher tiers, and any issues arising from specific cases that week. Depending on the case, we discuss what impact sanctions are having on the child, whether sanctions are being effective for them, and possible adjustments or interventions we could make. We share particular wellbeing concerns about children in the upper tiers, as well as mitigating circumstances that might currently be increasing their sanctions, such as problems at home. We discuss children who seem to be stuck in the upper tiers, and what measures we should take to help them. Sometimes, this would include taking decisions to offer them support, such as counselling. Sometimes, we would reach the point where we felt the system was not working for that child. We would discuss adjustments that could be made for that child. We would not generally take decisions to stop subjecting a child to isolation or suspension altogether, because we believe that it is important for the Positive Discipline Policy to lead to predictable consequences, wherever possible. However, depending on each child’s case, we sometimes took decisions that children should be subject to reduced length isolation and suspension sanctions for a period.

Mr Moncur’s evidence is that decisions taken at these weekly meetings were cascaded down through various management structures to decision-making staff. He explains that the system was further developed from the beginning of the 2024/25 academic year by setting up a dedicated ‘pastoral board’ with a specific remit to ‘help support the children who most needed to reduce their sanctions’. He describes the tracking tools used and the regular discussion of behaviour, attendance, curriculum and inclusion concerns, with a view to specific action points for ‘more support that these children should be offered’. Luke and Lydia were both on the agenda of this system, both from time to time in tier 5.

I am given no basis to do anything other than accept this evidence. It describes a system of strategic and senior professional oversight of repetitively isolated or suspended students, focusing on underlying factors potentially contributing to their behavioural problems, the ‘effectiveness’ and ‘impact’ of sanctioning, and possible alternative strategies. If this sounds very much like the precise content of the decision-making approach the Claimants contend was required by the Guidance, it raises the question of what exactly it is said that the School failed to do that it should have done, or how exactly its decision-making is said to have fallen short.

Part of the answer seems to be a proposition that this sort of strategic view needed to be applied at the point of the application of each individual sanction, and specifically those complained of here. But as I understand Mr Moncur’s evidence, it was. There was intended to be a direct sequential line from (a) the strategic review to (b) specific action points relating to either further support or a different approach to sanctioning which were then (c) tasked or communicated down to those responsible for the interface of the Policy with decision-making about individual pupils. He himself personally approved each instance of isolation and suspension challenged in the present claims. Clearly, the system was refined and improved over time. But if there was a problem in the basic machinery, I was not helped to see what it might be. The challenge in the present case is not to any failure of governance as such or to any strategic failure to provide ‘extensive support’. The procedural challenge has been, in essence, that isolation was repetitively imposed, including in the decisions complained of, without any or sufficient regard to the accumulating totals of time out of the classroom to which they were contributing. Mr Moncur’s evidence on this point seems to be clear that that is wrong. If there is a dispute of fact about this, I can see no proper basis for rejecting Mr Moncur’s evidence about it; it is supported by the contemporaneous records and certainly does not fail the ‘cannot be correct’ test. Nor am I therefore able to conclude that the decision-making in these Claimants’ cases was vitiated by a failure to comply with the Guidance. Ground 2 cannot succeed in these circumstances.

Flexible application of the Policy

It is not (any longer) suggested that the School improperly fettered its discretion by applying the Policy in an overly rigid way to Elise or to Luke. In Elise’s case, it is clear from the documentary evidence that her recent history was one of a personally tailored approach, moving beyond the Policy to trying the managed moves and ultimately to the alternative placement, where it remains the objective of all involved to work towards her eventual return to classroom teaching at the School. In Luke’s case, it is clear from the contemporaneous documentation that the Policy has been applied to him in an individuated manner, considered through the medium of assessing and supporting his SEND status.

A challenge of inflexibility is, however, maintained in Lydia’s case. Here, it is said, there is scant if any evidence that the Policy has been applied to her in anything other than an entirely mechanistic way – certainly as regards the imposition of isolation (the records show a minor school uniform concession).

A challenge on grounds of inflexibility may appear something of a conundrum in a case like the present. The Trust fully accepts that the School is obliged as a matter of ordinary public law principles not to fetter its discretion to depart from, or modify the application of, the Policy in an appropriate case. The Policy itself is careful to acknowledge in terms that sight must never be lost of students’ individual circumstances when identifying an appropriate sanction and ‘reasonable adjustments’ made where necessary (that is the language of equalities law, but there is no suggestion that such adjustments should be considered only in relation to protected characteristics or SEND status). On the other hand, the Policy is prescriptive at a detailed level, mandated on staff, and places a high premium on consistency and predictability of application.

Where consistency and predictability are careful design features of an unchallenged policy – a policy designed to reset behavioural and therefore academic expectations by a longitudinal process of education or training reinforced by a detailed system of rewards and sanctions – the test of whether it has been applied with unlawful rigidity may not be a simple matter of looking for consistency or variation of outcome.

The complaint made by Lydia is that she was simply being given too much automatic isolation. If I look at the period under review in these claims, it gives a snapshot of persistent and occasionally serious disruptiveness both in class and in isolation itself. It had resulted in her crossing the Policy’s threshold into suspension. Making exceptions from the Policy to produce less isolation and more classroom teaching, which is advanced as the evidence of flexibility which is missing here, is not an obvious hallmark for lawful application of the Policy in these circumstances. Lydia was struggling to engage consistently with classroom teaching and with such opportunities and support as were offered to her individually by isolation, and she was impacting the opportunities of her fellow students in both arenas. The modification of her behaviour was plainly a high priority, and the question of the School’s alternatives, considered in general terms above, does come into sharp focus in these particular circumstances.

There is a measure of factual disagreement about the extent to which the School did or did not make individuated decisions about Lydia which could be described as ‘reasonable adjustments’ to the Policy. Mr Moncur is firm that it did, but accepts that the School’s recent meticulous record keeping about adjustments was not in place for the duration of her time at the School. But absence of evidence of flexible outcomes is not in any event the same thing as evidence of absence of a flexible approach. And it is approach, not outcome, which is the key to the issue: see, for example, R (West Berks DC) [2016] 1 WLR 3923 at [16]-[17], and R(A) v SSHD [2021] 1 WLR 3931 at [2]-[3]. A decision-maker must keep an open mind in the application of a policy, and be willing to consider whether there is anything in a particular case to indicate departing from it.

The School’s records show that it was aware of Lydia’s, and her family’s, unhappiness about her experience, and repeat experience, of isolation – and her struggles to make progress within the framework of the School’s Policy more generally. She was on the School’s radar and in their system for reviewing frequently-sanctioned students on an individual basis and in the round. The School had considered whether there were any SEND or other underlying educational factors which might be contributing to her struggles and which might indicate targeted support or ‘reasonable adjustments’, and concluded there were not. But the evidence that it explored these matters does at least suggest it kept an open mind, and kept the situation under review.

It was put to me on behalf of the School that Lydia’s case was in these circumstances ‘less complicated’ than that of the other two Claimants. Elise and Luke were clearly students with complex individual difficulties and needs. I infer that the School’s understanding, and professional judgment, of Lydia’s personal struggles were that they proceeded from a combination of immaturity and disadvantages or missed opportunities in her young life and earlier education, before arriving at the School, of precisely the sort it recognised as being its mission and expertise to address with its ethos and Policy. It was trying to offer its strategies for self-management, socialisation and the acquisition of learning skills, and thereby opportunity and choice for Lydia, disrupting the association between historic socio-economic disadvantages and academic underachievement. I do not agree that in these circumstances it can necessarily be said that the absence of the sort of special SEND or health and wellbeing factors which can trigger targeted interventions makes the case of Lydia or any other struggling student ‘less complicated’.

These frequently-sanctioned but ‘ordinary’ struggling students are after all the gold standard for the success or otherwise of the Trust’s entire professional, social and moral philosophy. It expects some students to struggle for longer than others. It expects almost all of them to progress and maximise their potential over time. I can see that further pastoral support and mentoring was put in place for Lydia in September 2024, and the School was preparing to make further re-investigations into possible SEND status; these are not matters about which complaint is specifically pursued in this challenge, and they are of course ancillary to persistence with the Policy rather than departure from it. If given no particular reason to do otherwise, the School can be expected to keep trying with its Policy. According to its ethos, persistent misconduct not associated with special personal factors is not by itself a reason to do otherwise, it is a reason to keep trying. I cannot see that in Lydia’s case the School, despite keeping her case under review and keeping an open mind, was given a determinative or material reason to do otherwise than it did in the imposition of isolation. That is why Ground 5 cannot succeed.

Ground 4 – Human Rights

The Article 8 Challenge

Article 8 of the European Convention on Human Rights (effective in the UK pursuant to the Human Rights Act 1998) provides as follows:

Right to respect for private and family life

1.

Everyone has the right to respect for his private and family life, his home and his correspondence.

2.

There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.

The challenge on human rights grounds is distinctive from the other grounds in these claims. It seeks to impugn the disciplining of the Claimants with both suspension and isolation. It seeks to do so by identifying a continuing course of conduct over a number of years (and thus to bring Elise’s case squarely into the frame). On that basis, the challenge proceeds stepwise as follows.

First, the Claimants argue that Art.8 is engaged in their case, because the right to private and family life encompasses ‘the physical and psychological integrity of a person, the right to personal development and the right to establish and develop relationships with other human beings and the outside world’ (Munjaz v UK [2012] 1 MHLR 351 at [78]). They say the course of conduct pursued by the School in relation to their sanctioning with suspension and isolation interfered with their psychological or ‘moral’ integrity and their personal autonomy and development, causing them significant distress and impacting their education; they say it also interfered with their interacting and developing relationships with their fellow students at school.

Next, they say this was not in accordance with domestic law. In this they seek to rely on at least one of their other grounds of review succeeding. I have not been able to uphold any of them. But that is not necessarily fatal to the rest of their challenge on human rights grounds.

And finally, they say that the interference with their rights is disproportionate. The test for proportionality in a case like this is to be approached along the lines recommended by Lord Reed JSC in Bank Mellat v HM Treasury (no.2) [2014] AC 700 at [74], namely to address four questions:

(1)

whether the objective of the measure is sufficiently important to justify the limitation of a protected right;

(2)

whether the measure is rationally connected to the objective;

(3)

whether a less intrusive measure could have been used without unacceptably compromising the achievement of the objective;

(4)

whether, balancing the severity of the measure’s effects on the rights of the persons to whom it applies against the importance of the objective, to the extent that the measure will contribute to its achievement, the former outweighs the latter.

Continuing Course of Conduct

The challenge as developed before me here went a stage further than arguing for the historical relevance of past instances or patterns of sanctioning to the lawfulness of the decisions impugned. It is an argument that they are all part of a single continuing course of conduct delivering a cumulative impact. That is not how they would be regarded as a straightforward matter of public law, as appears to be acknowledged by the limitation of the challenge to the specific decisions complained of in that context, and indeed by the argument, which I have to some extent accepted, of the relevance of previous sanctioning to consideration of the present decisions. Here, by contrast, it was put to me by Ms Mitchell, advancing the Art.8 case for the Claimants, that there is in human rights law a ‘course of conduct principle’ within which the present case can be located. For that, she placed some reliance on the decision of the Supreme Court in O’Connor v Bar Standards Board[2017] 1 WLR 4833.

But the Court in O’Connor was dealing with a very particular conundrum. According to the headnote, the Court in that case found that:

for the purposes of section 7(5)(a) of the Human Rights Act 1998 the ‘act’ of which the claimant complained, namely the conduct of the Bar Standards Board in bringing and pursuing the disciplinary proceedings, was a single continuing act which continued until the Visitors allowed the claimant’s appeal; that where there was a single continuing act of alleged incompatibility with the Convention, time ran under section 7(5)(a) from the date when the continuing act ceased rather than when it began; that, therefore, the claimant’s claim had been commenced within a period of one year beginning with the date on which the act complained of took place, as required by section 7(5)(a); and that, accordingly, the claim was not statute-barred.

Section 7(5) of the 1998 Act deals with time limits for bringing proceedings. O’Connor was a case in which the claimant, a barrister, was alleging unlawful discrimination against her professional regulator (the Bar Standards Board) in bringing disciplinary proceedings which ended in her acquittal on an appeal to the Visitors of the Inns of Court (who used to exercise a visitorial jurisdiction over the relevant disciplinary tribunal). She alleged breach of Art.6 (the right to a fair trial) and Art.14 (discrimination on a protected ground). The Court held (at [29]) that

…the alleged infringement of Convention rights in the present case arises from a single continuous course of conduct. Although disciplinary proceedings brought by the BSB necessarily involve a series of steps, the essence of the complaint made here is the initiation and pursuit of the proceedings to their conclusion, ie the entirety of the course of conduct as opposed to any component steps. … prosecution is a single process in which the prosecutor takes many steps. It cannot have been the intention of Parliament that each step should be an ‘act’ to which the one-year limitation period should apply. I also note in this regard that, were it otherwise, a prosecution which lasted longer than one year could not be relied on its entirety as a basis of complaint unless proceedings were commenced before the conclusion of the disciplinary proceedings or relief were granted under section 7(5)(b). A claimant would be placed in the difficult position of having to bring a human rights claim within one year of the commencement of what might be lengthy proceedings, without knowing the outcome which might be very material to the claim.

The Court noted that the ‘act’ complained of in this case was ‘bringing and pursuing disciplinary proceedings’. The question it had to resolve was whether the BSB’s actions in opposing the claimant’s appeal to the Visitors was a part of what it had described throughout the proceedings as ‘a prosecution’. In answering that question it was necessary to have regard to the regulatory scheme and the ‘precise features’ of the BSB’s conduct. The Court identified no fewer than eight distinctive features of the visitorial jurisdiction which, considered cumulatively, persuaded it that the BSB’s part in the proceedings before the tribunal and the Visitors were to be regarded as essentially one continuing act.

The claim in O’Connor was founded on Art.6 ECHR. That protects fundamental procedural entitlements in the determination of an individual’s civil rights and obligations or of any criminal charge against them. It is an article which is all about procedure. Sometimes breaches of Art.6 are alleged to be constituted by a single incident or feature of a public authority’s procedure. But O’Connor was also an Art.14 discrimination case. What was alleged was that the BSB’s whole process of pursuing disciplinary charges was a breach of Art.6 because it was in all respects unlawfully discriminatory. The Court found, on the basis of the ‘precise features’ of the relationship between the tribunal proceedings and the visitorial jurisdiction, that the BSB act of conducting opposition to a formal appeal before the Visitors was an essential component of the whole impugned procedure.

The issue in O’Connor was the meaning of ‘act’ in s.7(5)(a). Where the act complained of under Art.6 is a procedure, then a definitional question arises about the precise contours of the procedure for which the public authority is to be held responsible. The court held, on a granular consideration of the visitorial jurisdiction, that the BSB’s participation in the appeal was its ‘act’ and part of the whole formal procedure complained of. It concluded that, as a matter of practicality, to take any other view than it did about the unity of the BSB’s procedural ‘act’ would itself have hollowed out the substance of the complainant’s protected procedural rights.

In all these circumstances, I have considerable difficulty with a proposition that O’Connor is authority for any sort of general‘course of conduct principle’ in human rights law. I was shown no authority where its analysis has not been regarded as confined to the particular conundrum before it, the particular nature of the claim and the particularities of the procedure with which it was dealing. It is not a case about cumulation of repetitive decisions. The present claim is based on a breach of Art.8, not infringement of a procedural right or discrimination. There is no issue of ambiguity about any ‘act’ or indeed ‘acts’ complained of.

In the Strasbourg authorities to which I was taken, I can see that the degree of interference with a human right may vary according to its temporal extent – either the period or the repetitiveness may have a bearing on the overall harm, and hence on the balance of proportionality. But the authorities cited to me did not, singly or together, set out anything which could fairly be regarded as a ‘course of conduct principle’ – and certainly not one capable of displacing the ordinary rules of limitation either for judicial review proceedings or for the purposes of a Human Rights Act challenge.

However, and for the purposes of investigating the merits of this challenge in the case of all three Claimants, I doubt that much turns on this point in the present case for the following reasons.

Engagement of Article 8

Any consideration of the potential engagement of Art.8 with the disciplining of students in a school context almost inevitably takes as its starting point the decision of the Strasbourg Court in Costello-Roberts v UK (1995) 19 EHRR112, the case of the seven-year-old schoolboy ‘slippered’ at his independent school for an accumulation of minor breaches of school rules. There, the Court said this (at [36]):

Measures taken in the field of education may, in certain circumstances, affect the right to respect for private life, but not every act or measure which may be said to affect adversely the physical or moral integrity of a person necessarily gives rise to such an interference.

…

The Court does not exclude the possibility that there might be circumstances in which Article 8 could be regarded as affording in relation to disciplinary measures a protection which goes beyond that given by Article 3. Having regard however, to the purpose and aim of the Convention taken as a whole, and bearing in mind that the sending of a child to school necessarily involves some degree of interference with his or her private life, the Court considers that the treatment complained of by the applicant did not entail adverse effects for his physical or moral integrity sufficient to bring it within the scope of Article 8.

A generation has passed since the Costello-Roberts case, and corporal punishment in schools has been consigned to history. For a modern statement of the Strasbourg Court’s approach, I was taken to FO v Croatia [2021] ELR 721. There, at [59], I can see that the Court reiterated the first paragraph from the earlier case, set out above, but added: ‘However, since Costello-Roberts, there has been an evolution of social attitudes and legal standards concerning the application of measures of discipline towards children, emphasising the need of protection of children from any form of violence and abuse.’

FO v Croatia itself was a case in which a student had, on three different occasions, been verbally abused and insulted by a teacher in open class, including by reference to his father’s occupation. There was medical evidence that this had precipitated an acute anxiety disorder. The Court said this:

[80] … While … the State has an obligation to secure to children their right to education, the sending of a child to school necessarily involves some degree of interference with his or her private life under Art.8. Moreover, functions relating to the internal administration of a school, such as discipline, are an inherent part of the education process and the right to education (see Costello-Roberts, cited above, para 27).

[81] Although not all measures in the field of education will affect the right to respect for private life, it would be impossible to reconcile any acts of violence or abuse by teachers and other officials in educational institutions with the children’s right to education and the respect for their private life …. The need to remove any such treatment from educational environments has also been clearly affirmed at international level …

[82] In the context of provision of an important public service such as education …, the essential role of the education authorities is to protect the health and well-being of students having regard, in particular, to their vulnerability relating to their young age. Thus, the primary duty of the education authorities is to ensure the students’ safety in order to protect them from any form of violence during the time in which they are under the supervision of the education authorities.

So the Court in FO v Croatia affirmed the principle that some, but not all, of what happens to young people in school may engage their Art.8 rights. The case is not authority for a proposition that discipline in school as such generally engages Art.8; on the contrary, the Court clearly affirmed that school discipline is in general intrinsic to education itself, part and parcel of the inevitable interference with a child’s autonomy entailed by sending them to school at all. On the facts before it, the Court was dealing with something rather different from anything resembling a formal disciplinary sanction or a sanctions policy. It was dealing with a teacher bullying and abusing a child to the point of precipitating assessed and documented mental ill-health. It concluded that neither physical violence (any longer) nor abuse by verbal harassment had any proper place in the education of a child. It found a violation of Art.8 accordingly.

That is a long way from the present case. And it is the high-water mark of the Claimants’ case on what the Strasbourg authorities have to say specifically about Art.8 in the context of educational discipline. Ms Mitchell made an ambitious attempt to argue for the engagement of Art.8 in the present case by analogy from the caselaw on segregation or solitary confinement in various state detention contexts. But I do not think it at all straightforward to extrapolate from what happens in state detention to what happens in a school. As the Court of Appeal noted at [27] in AG (Eritrea) v SSHD [2008] 2 All ER 28, one of the cases on which Ms Mitchell relied, ‘in Costello-Roberts’s case the surrender of a substantial measure of the child’s autonomy and the parents’ control to the school was a critical consideration’. That is the obvious and fundamentally distinguishing feature, recognised as such by the authorities.

It is a feature to which the UK authorities also keep returning in the Art.9 cases where school uniform or other policies have been challenged on religious grounds (see, for example, the Michaela Community Schools Trust case at [175]-[181]). The starting point, where children and parents challenge the compliance of a school policy or practice with their human rights, is that they have opted to go there and they have alternatives. Of course, that is only a starting point. It may turn out that the alternatives are not realistic or have other problems associated with them (these are, however, factual matters for a claimant to establish, and not raised in the present case). It obviously does not imply any sort of licence for school staff to inflict violence on or to bully and abuse students. But the starting point on the engagement of Art.8 with a school’s disciplinary policy is that it is part of an ethos a family has chosen (and in the case of all the present Claimants is continuing to choose). That is not a point about ‘waiver of rights’ as Ms Mitchell proposed, it is an issue about the scope of Art.8 as a safeguard for individual autonomy.In the present case, the distinctive nature and ethos of the Policy has been front and centre of the School’s proposition to families, and acceptance of all its students, from the outset. And the ‘course of conduct’ to which objection is made in this human rights challenge is not easy to distinguish from the policy and practice as clearly articulated in that prospectus.

The Claimants wish to object that they were entitled, as a matter of human rights law, to less in the way of suspension and isolation than they received in total, notwithstanding that prospectus. That is a long way away from the complaints the courts have upheld from individuals undergoing radical loss of personal autonomy in the choiceless total environments of state detention. There is nothing in the Strasbourg or UK caselaw to which I was taken that supports the engagement of Art.8 with a school’s distinctively offered, accepted and applied disciplinary policy and practice in circumstances such as the present. I have to hold in mind the warning given in R (Ullah) v Special Adjudicator [2004] 2 AC 323 that it is not my function to develop human rights law further than I can be ‘fully confident’ that the ECtHR itself would go. I cannot see it has gone anywhere near to where the Claimants wish me to go. I am far from confident it would go there. On the contrary, it has expressed clear reservations about doing so when it has been asked directly to consider the situation of school students. To do so in the present case would in my judgment be an unprecedented and unprincipled human rights intervention in the professional world of education provision with potentially far-reaching implications. I cannot see that Art.8 is, even arguably, engaged in this case. I would have been minded to refuse permission for this ground of challenge.

Proportionality

But if I am wrong about that, then the issue of the proportionality of repetitive sanctioning would have to be dealt with. There is no dispute in this case that sanctioning according to the School’s Policy itself pursues legitimate and important, and indeed laudable, aims, nor that it is ‘rationally connected’ to those aims. Those aims are avowedly child-centred. Part of the rationality of the connection is its thesis that (a) the socialisation and self-management of students is an essential pre-requisite for the realisation of potential, including for academic achievement, and (b) students arriving at the School who are challenged by its programme need the secure boundaries of predictability, the consistent application of incentive and disincentive, and support tailored to any individual factors which the School understands, to help them understand and master that socialisation and self-management. With those aims and objectives and that rationale in mind, the Trust has a clear explanation of why ‘a less intrusive measure’ – less secure boundaries, or making distinctions between pupils which are not driven by reasons of educational judgment or accommodating a student’s special needs – would be an unacceptable compromise. The School’s Policy and practice in general has been commended by Ofsted as ethical, well-managed and successful.

In that connection I could and would take into account, in the overall balance, that the Policy pursued, both in general and in its application to each individual Claimant, avowedly places the individual best interests of the child at its centre and represents a professional assessment of how those interests are best served. No doubt different professional educators can and do have different ideas about how a child’s interests are best served in the framing and application of a school conduct and discipline policy. Different schools do it differently, and that is generally thought, within the bounds of what is, considered nationwide, quite a broad spectrum of educationally endorsed approaches, to be desirable in promoting choice and individual fit. The role of a court in intervening with its own views about what is educationally in any individual child’s best interests is accordingly moderated.

I would be directed next to consider the severity of the effects of repeated removal from the classroom on the Claimants. I have no evidence approaching comparability to that in FO v Croatia of professional diagnosis of mental or other health conditions caused by that removal. A negative impact on their education is simply asserted, as discussed above. In the Art.8 context, that is not just a matter of deficiency of evidence and the role of professional judgment; even if causative impact were established, it would require disentangling from the causative impact of the Claimants’ own choices about the behaviour precipitating the sanctions, to the extent those choices could properly be described as autonomous, and more generally from their demonstrated repetitive intolerance of classroom teaching and/or the tailored environment of isolation.

I am clear that the Claimants and to a degree their families feel strongly that repetitive removal from the classroom and the temporary separation from whole-class teaching and social interaction with their friends which that entails is an acute source of frustration and unhappiness in its own right. Parents and children have their own ideas about what is in their own best interests from time to time, not excluding about how it feels to be on the receiving end of discipline and whether the usual rules should be disapplied or varied in their own case. I would be asked to place all of this in the balance.

In the balance would also have to be placed others’ rights to education, and the protected rights to personal autonomy, physical integrity and mental wellbeing of staff and students at the School who are negatively impacted by the Claimants’ incomplete development of their own social and self-management skills to date. Article 8 rights can and must be qualified where protection of the equivalent rights and freedoms of others in the matter of personal autonomy demand it, and the School has duties to protect all its staff and students from bullying, intimidation, harassment and violence, including by students. Sometimes that demands the removal, and repeated removal, of an individual from the classroom environment, whatever their own preferences or even needs, and whether for deterrent, preventative, protective or correctional reasons or any combination of those. A balance must be struck.

Even if the Claimants’ Art.8 rights were engaged in their being repeatedly removed from the classroom, therefore, and balancing all the possible effects, both negative and positive, on the individual Claimants and their educational prospects both short and long term, alongside the child-centred objectives of the School for the Claimants and for all their staff and students, I would in all these circumstances not have been able to recognise any interference with their rights as having overall been disproportionate in human rights terms.