More children will face unlawful exclusions by heads with the expansion of academies and free schools, headteachers' leaders have warned.
School leaders have ignored repeated Government advice that removing pupils illegally could leave them vulnerable to court action, according to the Association of School and College Leaders (ASCL).
The practice is used when heads send pupils home to "cool down" following a behavioural incident, but also when there are complications in obtaining support for children or while a "managed move" to another school is being arranged.
Ofsted, the Local Government Ombudsman and the Advisory Centre for Education - a charity that helps parents in conflict with schools - as well as ASCL have reported problems with their on-going use.
Richard Bird, legal consultant for the ASCL, said: "Heads are still putting themselves at risk by authorising unlawful exclusions. The fact we will have more academies, which operate with more independence, will make the situation worse."
Council officers have warned Ofsted that schools are not following "agreed procedures" for exclusion. During an investigation this summer, inspectors found teachers had put pupils on part-time timetables or taken them off role, and said this "disregard for procedures and legal requirements" was putting children at risk.
"One local authority officer called these back-door exclusions, the 'don't come back until we tell you' types," the Ofsted report said. He went on to say that "some young people and their parents take this instruction literally and the young person is at home for weeks before this is then picked up as non-attendance".
In another area, two schools had tried to persuade parents to educate their children at home rather than exclude them. In another case, a child caught during a truancy "sweep" said he had been excluded for a month, although there was no record of this at his school.
Government guidance says that "being unofficially excluded or sent home to 'cool off' may result in a breach of the pupil's human right not to be denied education". This could result in damages being awarded against a school, it adds.
Legal advice given to governors last December by the former Department for Children, Schools and Families "reinforced the message" that illegal exclusions "are unacceptable".
But Advisory Centre for Education helpline staff say parents find it very hard to challenge the procedure.
"Teachers often imply to parents that they are doing them a favour by using unofficial exclusions because it doesn't go on their child's record," said Sam Murray, head of policy and information.
"We've seen it used for 'the child's protection' when they are being bullied, or because teachers can't manage children's behaviour at lunchtimes. It does breach human rights and damages children."
Andy Winton, past president of the National Association of Social Workers in Education, said: "The children who are unofficially excluded are the most vulnerable. This practice writes them off and it's damming for them and for society.
"Our fear is, with more academies and free schools, there will be even less monitoring of this problem. As budgets get cut there will be less educational welfare officers, so skilled professionals will be less likely to pick up on illegal exclusions."
A Department for Education spokesman said: "The department is reviewing the exclusion process and will announce decisions in due course. Unofficial exclusions are unlawful regardless of whether they are done with the agreement of parents or carers."
Open to abuse
Moving children between schools to avoid permanently excluding them is "open to abuse" by teachers, according to local authorities.
Two out of the 15 local authorities visited during an Ofsted investigation earlier this year had abandoned the practice of "managed moves", which started as a way for heads to keep their exclusion rates down and to give pupils a second chance.
The council bosses concerned insisted children were excluded permanently so they were known to officers and part of the "central system".
Cases investigated by the Local Government Ombudsman
- Manchester City Council was found guilty of "failing to challenge" the unofficial exclusion of a child and not pursuing another school place for her. The council was ordered to buy her a computer worth #163;750 and give #163;200 to "acknowledge her time and trouble" making the complaint.
- It was ruled that a school in Stockport "severely restricted" the attendance of a boy from Year 9 onwards. Stockport Council did not act even when the boy started part-time schooling and teachers said they could not meet his needs. His mother was denied the right to appeal because her son had not been officially excluded.