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Don't sign those naughty contracts

Lance Haward says good behaviour contracts are clandestine, unlawful, and, adds Mike Fielding, they just don't work.

The questionable practice of "good behaviour contracts" has been thrown into renewed prominence by the case of a five-year-old child, permanently excluded from Wellacre Infants School in Greater Manchester because his parents reasonably refused to allow him to execute such a document.

It has further been spotlighted by the National Association of Head Teachers' call for some greater statutory force, not clearly specified, to be accorded to such arrangements, and for them to be extended to all schools, an appeal recently endorsed by David Hart, the association's general secretary, on Radio 4's The World at One.

While the practice is not new, it is not, as David Hart evidently believes, well-established and uncontroversial. Analysis shows the current use of such documents to be unauthorised, clandestine and legally ineffective. What is new about the NAHT's present call is the idea of requiring pupils at large to subscribe to "contracts", rather than just selected trouble-makers.

Although the Government's response to this appeal is as yet uncertain, the present law governing the practice which is only relevant to over-subscribed schools, is set out accurately enough in DFEE circular 696.

While unwillingness to enter into such a document cannot generally be made grounds for not allocating a place, if a particular school is over-subscribed it can become the basis for prioritising applicants, hence in effect for disallowing those children on whose behalf no such "contract" has been completed.

These are not, in fact, contracts at all in any sense in which the law understands the term. There is no obligation on the school's part beyond that which it is already obliged to deliver, to set against that which is sought from the child or his parent. As a wholly unilateral commitment, and one moreover where the person principally committed is a minor, the law has much to say about the enforceability or otherwise of such a document.

Because, until now, it is believed that the practice has only been significantly adopted in relation to re-entry following exclusion, the problems attendant on its potential application to admissions may not have been noticed.

If it were to become widespread, and the present restriction to over-subscribed schools to be removed by law, what course of action would be left to a local authority in respect of a child unwilling to "sign up" and thus refused admission to any of the authority's maintained schools - allocation to a pupil referral unit?

The implication necessarily seems to be that the local authority's present power in Section 13 of the 1993 Act to get round this, by directing a school to take a child for whom no place could otherwise be found, would be abrogated. Even if the scheme were not to be extended to under-subscribed schools, the mere fact of its wholesale adoption by the over-subscribed must necessarily introduce an additional, routine complication into the annual admissions process, extending the timetable for this.

The real imponderable is what happens where such a document has been entered into and the child infringes its requirements. For if it has no observable consequence, the entire exercise is otiose. It seems to be erroneously imagined by the proponents of such "contracts" that they empower the school to proceed in a manner which without the document would have been unlawful.

But contracts do not purport to lay down any new sanctions: the redress for a breach remains, as already available for any sufficient misbehaviour, exclusion, either short-term or permanent, with the statutory appeal rights attendant on that punishment.

A properly instructed appeal committee ought always to reinstate a child where the school has simply relied on breach of the document without attempting a proper balance of the gravity of the offence and the severity of the punishment. It could be proposed that such a committee should be obliged to accept breach pure and simple as prima-facie evidence of behaviour justifying exclusion, subject to rebuttal upon investigation by the committee. But this would be a minutely small nut to be cracked by such a statutory sledgehammer. Exclusion apart, the document would add nothing to a school's existing disciplinary powers.

One can hardly imagine any new law exacting damages from the parent, although the model of coercing children through sanctions against a parent does exist, in respect of truancy.

The law is, in fact, far clearer in respect of the primary area in which such "contracts" are being operated at present - the situation of a child following exclusion. At the end of a fixed-term exclusion, or after reinstatement by appeal process following a permanent exclusion, a registered pupil has an absolute entitlement to be re-admitted: no signature can be required as a precondition of entry, nor refusal to sign be made grounds for further exclusion.

If this is what is being proposed, Mr Hart's interview clouded the issue. The Secretary of State's direction under sections 68 or 99 of the 1944 Act would lie against any such abuse of its functions by the school. The common custom of imposing such a requirement as a means of impressing recalcitrant children (or lackadaisical parents) with the gravity of their situation is, in my view, improper.

It attempts to coerce by falsehood, disguising from the uninstructed that the school would be exceeding its powers by relying on a piece of paper to justify anything otherwise unjustified. A responsible institution should not bluff pupils: the relationship should be based on clear, mutually understood legal rules.

Lance Haward is a consultant in education law

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