'Johnny must go!' declared the head . 'Yessir,' responded the father meekly. That was in the old days. Now, the parents ask 'Why?'
Peter Woodroffe, Education Law Specialist with Woodroffes, Solicitors, advises.
I do not regard it as being my function to encourage disaffected parents to take a stand against the school - if they do not have a legitimate complaint, then they need to be told so firmly.
When to engage legal help
The vast majority of schools act fairly and provide good pastoral care; it is only occasionally that things go wrong. In those circumstances, it is my task to negotiate a fair settlement with the school, steering the parent away from proceedings, unless that is absolutely necessary.
Parents need advice as to whether they have a genuine complaint or not. The majority of schools take a reasonably pragmatic view towards disputes and things tend only to get out of hand where there is a gung-ho bursar or head. Unfortunately, life's rich tapestry throws up such persons from time to time.
Having acted for 16 years as solicitor and secretary to the court of governors of the Mill Hill School Foundation (an independent school with over 1,000 pupils), I am fortunate in having an insight into how governors and heads think. I also have some knowledge of parental attitudes, having two sons that went through Westminster.
The most frequent causes of disputes are as follows:
Fees (independent schools only)
In general, parents are liable to pay one term's fees in lieu of giving a clear term's notice.
The reasonableness of this requirement is well established in law, and parents should expect schools to take proceedings if they do not pay. To avoid liability, a parent must show that giving a term's notice was unreasonable because of something that the school was responsible for: examples of this might be a failure to provide promised educational support for a dyslexic child or serious injury to a child. Parents are not normally trigger happy and do not involve themselves in proceedings unless the school takes up the cudgels first.
The best advice I can give to anybody is to take out a Legal Protection Policy – you can often add this on to your home insurance.
It is not expensive and can provide £100k or more for legal expenses and cover against an adverse order for costs. It gives a unique and necessary degree of financial muscle, particularly since most schools have such a policy themselves.
Bullying (all schools)
This happens in every school, but today most schools go to great lengths to stamp it out. One well-known independent school expelled three boys and suspended 15 on this ground.
Sometimes bullying has serious consequences: much depends upon the ability and common sense of the staff and, if the school has failed to exercise proper supervision and control, then there may well be a claim.
My firm has settled a case of bullying in a well-known girls' school. As most parents know, bullying by girls is not usually physical but, instead, is more subtle, causing extreme depression on the part of the victim. We dealt with a case of bullying by a group of foreign pupils, all coming from the same country - very unusual.
If an exchange of correspondence or the commencement of proceedings exposes negligence on the part of a school, this will often lead both to a reasonable financial settlement without the need for a court hearing, and to improved procedures in the school.
Breach of contract (all schools)
The rights of state school parents can be severely curtailed by statutory procedures for eg exclusion from school.
The all-important question about an expulsion is, has the head acted fairly?
It is not generally realised that the contract does not have to specify that the head will act in a fair manner. This is implied in every contract of education, as are the rules of natural justice. It is not settled law, but it is also likely that the Human Rights Act applies to independent schools.
The courts will be prepared to examine all aspects of an expulsion in order to establish whether or not the head has acted fairly, which gives an aggrieved parent considerable scope. The parent should not, though, expect to receive much by way of damages, or even their (substantial) costs back - and should expect only rarely to see their child reinstated.
What most parents want in expulsion situations is an appeal to the governors against the head's decision and/or an apology from the head or chairman of governors.
Obtaining an apology from most heads is like drawing teeth.
They teach their charges to say sorry, but appear to be unable to do so themselves. My experience is that it is usually the unfortunate chair of governors that has to give the apology for the misdeeds of the head.
Defamation apart, the law does not normally provide a right for an apology. It therefore has to be negotiated. I have settled a case involving one of Britain's more famous girls' schools in which an apology and a contribution towards costs was eventually given by the school. It arose out of a fight occurring between two girls (and believe me, when girls have a fight, they put the boys to shame). Although, in my view, it was a case of six of one and half a dozen of the other, one girl was expelled and one was not. However, we ascertained that the latter was the daughter of a trustee who provided substantial funds to the school.
State school parents will have to negotiate the statutory disputes procedure before they are allowed access to the courts - but would be well advised to engage a solicitor from the start.
Negligence (all schools)
This is a relatively grey area of the law, but developing.
It is not unreasonable for the courts to provide schools with some protection against marginal or vindictive claims, but the court of appeal has recently accepted that a school can owe a duty of care towards pupils.
Whilst there is obviously an overlap with breach of contract, negligence could include failures to educate, to take proper account of dyslexia and other learning difficulties, to supervise and control the pupils and to provide proper pastoral care. Parents might expect to receive proper recompense for expense incurred, including the additional cost of a new school, plus modest compensation for distress in appropriate cases.
Breaches of the Race Relations Act (all schools)
This does not happen often, but can give rise to difficult disputes, because the evidence tends to be circumstantial, though I recently settled a much publicised case at the court door, but am prohibited from providing details as a result of what is colloquially known as a ‘gagging order’. Schools sometimes settle disputes on condition that there is a gagging order (which can apply to the parties and their lawyers or the press or both) so as to avoid adverse publicity.
Class Actions (all schools)
These are relatively rare but occur when a large number of pupils or parents have been affected by the same injustice. I was instructed by a parent representing 70 others as a result of the governors of the school hiking the fees by 25 per cent. As it happened, the contract between parents and the school required (unusually) that the governors would only implement reasonable increases. This dispute never came to court; I suspect, through sheer weight of numbers.
Costs (all schools)
If a claimant succeeds in the course of proceedings, the judge normally makes an order that the defendant shall pay the claimant's costs. There is a tariff for these and the claimant usually recovers about two-thirds of the amount of his solicitors' bill. Frequently, if there is an out of court settlement, the terms specify that one party's legal costs, or a proportion of them, shall be paid by the other.
Here, the student rather than the parent is the client. Disputes mainly arise out of entry qualifications, examinations and the level of degrees. I have dealt with a case in which two students were accused of cheating.
Infuriated parents are sometimes anxious to tell their story to the press. They need to bear in mind that this is not necessarily in their best interests - or that of their child.
It is necessary to measure the possibility of diminished chances of effecting a settlement once the parent has blown the gaff against the threat of damaging publicity regarding the school. Some parents are sufficiently unhappy about their situation as to insist upon speaking to the press before any question of a gagging order can arise; sometimes a press report will ginger up a school to come to the negotiating table: it is a matter of careful judgement as to what is the right course in each situation.
The cost of litigation and the fear of publicity are increasingly encouraging litigants to resort to mediation. This is an informal hearing before a qualified mediator who, after hearing the main evidence and arguments, endeavours to steer the parties towards a mutual agreement. I believe that, when educational disputes get out of hand, this may well in future be the way forward.
Finally, remember that every case is different. These general comments cannot be taken to apply to an individual situation. There is no substitute for taking professional advice.
The third generation of his family in the firm, specialising in education law, he is well known to the Good Schools Guide Educational Consultants.