NAMBSE EDUCATION CENTRE SLIGO APRIL 28 TH 2010. Admission Policies/Section 29 Appeals Codes of Behaviour/New Guidelines Current Legal Issues David Ruddy.

NAMBSE

EDUCATION CENTRE

SLIGO

APRIL 28TH 2010

Admission Policies/Section 29 Appeals

Codes of Behaviour/New Guidelines

Current Legal Issues

David Ruddy BL

Admission/Participation policiesSection 29 appeals

Education Act 1998

Section 15(2)(d)

“A Board shall publish an admissions policy”

Requirements of Education Act

Agreement of patron

Equality

Rights of parents to send child to the school of their choice

Education Welfare Act 2000section 19

(1)Refusal must be in accordance with the admissions policy

(2)School entitled to be supplied with all relevant information in application form

(3)BoM communicates decision within 21 days

Refusing admission in exceptional circumstances

The student has special needs such that, even with additional resources available from the DES, the school cannot meet such needs and/or provide the student with an appropriate education

Student poses unacceptable risk to other students/staff/school property

Section 29 Appeals against BoM decisions

Expulsion

Suspensions for 20days or more

Refusal to enrol

Westmeath VEC v Sec General DES & Section 29 Appeals Committee High Court 2009

VEC school refuses enrolment for a “transfer” application

Right of appeal committee to over turn/rewrite admissions policy

St Mologas NS Balbriggan v Sec General DES & Section 29 Appeals Comm High Court 2009

Appeals Comm no rt to reverse decision of BoM

Not a placement agency

Function to ensure refusal was in accordance with valid enrolment policy

Scoil Mhuire Collcotts V Sec General Des & Section 29 Appeals Committee High Court 2009

Mainstream and autistic unit School full/waiting list No 1 offered only place available No 4 brings sec 29 appeal & wins Offer withdrawn from no 1 who brings sec 29

appeal & wins No 2 brings section 29 appeal & wins School brings Judicial review/case

settled/Des approve additional resources

Lucan Educate Together NS v Sec General DES & Section 29 Appeal Committee High Court

Autism outreach unitPre condition in admissions policySection 29 appealHolds against school-Admission

policy /in breach of recent legislation

Issue re-writing admissions policy

Glenageary Killiney NS V Sec General DES & Sec 29 Appeals Comm 2009

School FullNon Church of Ireland family

challenged refusal to enrolSection 29 appeal favours parents School success in High Court

action

Mr&Mrs X v a Boys National school Equality Authority 2009

Boys school & co educ autistic unit

School refuses to enrol non autistic girl

Action for discrimination fails

Section 23(3) Education Welfare Act 2000

National Educational Welfare Board (NEWB) obliged to publish guidelines

Clarifies issues for schools

Codes of Behaviour/ The New Guidelines 2008

Teach pupils the rules

Publish the code in the pupil’s Diary/ journal

Parents requested to sign code as a condition of registration

Implementing & Communicating the Code of Behaviour

“ Discipline in a school is a matter for the Teachers, Principal, Chairperson of BoM, & the Board itself; not a matter for the courts whose function at most is to ensure that the disciplinary complaint was dealt with fairly”

Murtagh v BOM of St. Emer’s Primary School (High Court & Supreme Court) 1991

Responsibility of Board of Management (BOM)

Policy and procedures must be in place for suspensions/expulsions

Pupils/parents aware of the policy

All staff aware of fair procedures

Sanctions

Appropriate to age and development stage of pupil

Should not impact disproportionately on particular groupings i.e. members of the travelling community, special needs pupils and international pupils.

Importance of pupils’ understanding the purpose of sanctions

Special Educational Needs Pupils

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

Mrs A (on behalf of her son B vA Boys National school Equality Authority 2009

Parents of autistic boy fail to prove discrimination by school in relation to discipline

must be a clear connection with the school and a demonstrable impact on it’s work before code of behaviour applies

Applying sanctions to misbehaviour outside school

Student A and Student B V

A Dublin Secondary School High Court 1999

The period of suspension

Guidelines recommend the following options/possibilities for BoM

•Principal - 3 days

•Principal - 5 days (approval of Chairperson)

•BoM should put a ceiling of 10 days max in relation to particularly serious incident

Grounds for suspension

Proportionate response to behaviour that is causing concern

Seriously detrimental effect on education of other students

Threat to safety

One single incident of serious misbehaviour may be grounds for suspension

Forms of suspension

Immediate suspensionAutomatic suspensionRolling suspension Informal or unacknowledged

suspension/voluntary withdrawalOpen-ended suspension

Fair procedures based on the principles of natural justice

(1) The right to be heard Rt to know what was alleged

misbehaviour Rt to respond If possibility of serious sanction, rt to

be heard by BoM Absence of bias

State (Smullen & Smullen)

VDuffy

1980 High CourtNo right to legal representation at BoM

meetings

M (a minor suing by his mother and next friend AM)v

Principal and Board of governors of Good Shepherd Primary School

High Court (Queen’s Bench Division) Belfast 2003

Principal breaches fairness of procedures

Expulsion

Authority to expel should be reserved for the BoM

This authority should not be delegated

Seek assistance of support agencies

Legal advice

Grounds for expulsion

Behaviour is persistent cause of significant disruption to the learning of others or to the teaching process

Continued presence of pupil constitutes a real and significant threat to safety

Pupil responsible for serious damage to property

Automatic/expulsion for first offence

BoM can impose automatic expulsion for certain prescribed behaviours •Sexual assault

•Supplying illegal drugs to other pupils in the school

•Actual violence or physical assault

•Serious threat of violence against another pupil or member of staff

"The Shorts Case"

Timothy O Donovan-V-

BOM of De la Salle College Wicklow& (Section 29 Appeal Committee)

High Court Jan 2009

Judge Hedigan

Expulsion

"The haircut case“

Mary Knott (on behalf of her son David Knott)

VDunmore Community College

January 2009Equality Officer Decision

School Discriminates against pupil

Kirpan Case

Total ban on 12 yr old boy wearing kirpan

The school violated an individual’s freedom of religion.

Supreme Court of Canada

Mulvey (a minor) v Mc Donagh High Court 2004

Adopted DES guidelines i.e. bullying definition must be ;

repeated ongoing sustained

Cross Referencing

The code of behaviour should not be seen as a stand-alone document

Anti-bullying policy must be part of code

Health and safety statementAdmission/enrolment policy

Time Frame

It is expected that the process of audit and review will be completed by September 2010

Principal’s role is to lead the audit and review and ensure implementation of the code

Separated parent challenges School policy on p/t meetings

A v A Primary School

Equality Tribunal 2009

Male teacher fails in discrimination case

James Martin Henderson vBoard of Management of Scoil

Iosagain

Equality Tribunal Decision 2009

Appropriate Dress for Communion

Christopher Carr v Gaelscoil Mhanister na Corran Midelton Co Cork

Equality Tribunal 2009

Circular 60/99

Dismissal /suspension of teachers/principal teachers

School Principal dismissed

Gertie Mc Nerney vBom of St.Patrick’s Primary schoolDromard,Moyne.co.LongfordEmployment Appeals Tribunal 2009

HSE V Information Commissioner

High Court 2008

HSE must disclose confidential information given by teachers to social workers