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Treading muddy water

Schools looking to the current Education Bill to solve any of their problems with disruptive pupils will find that it will make little, if any,change in practice.

What it will do is create a new category of "disqualified" children, who can be automatically refused admission, without the customary right of appeal. Once a child has two permanent exclusions, his or her choice of school will be left either to those schools not invoking the disqualification or to the education authority. If the authority has delegated admissions to governing bodies and none will accept the child, he or she will have to be enrolled in a pupil referral unit.

This may sound potent - but in fact rests on a misconception of the present law to the effect that a school is not entitled to refuse a place to a child of proven disruptive tendencies. This view, based on a misreading of the old section 26 (9) of the 1988 Act (now section 411 (6) of the 1996 Act), is embodied in circular 61996.

But the section does not, as the DFEE seems to suppose, place an embargo on schools rejecting a parental preference on the grounds of the child's established disruptive behaviour - and the reasonable predictability of its recurrence. It simply said that a school was not entitled to reject preferences by alleging that efficient education would be prejudiced by the admission of certain number of pupils below what is known as the "standard number". Given the demand, it must recruit up to standard number.

It said nothing about prejudice arising

from the admission of any particular type of individual, and the right to refuse a place by reference to that.

The upshot is that the newly-conferred power to refuse to accept a pupil, defined in terms of previous exclusions, will exist alongside the continuing, wider power to refuse a place when the disruptive behaviour is established and unarguable, whether or not it has previously resulted in one or more permanent exclusions. Plenty of scope for confusion on all sides.

An exclusion reversed by the governing body will not count for the purpose of disqualification, whereas one endorsed by the governors but quashed by an appeal committee will. Thus a governing body's view of a pupil's behaviour may in future be invested with a larger, long-term significance than the view of an appeal committee.

The Bill also adopts the existing practice of "good behaviour contracts" - which it calls "partnership documents". It would give schools the right to make a parent's signature a condition of the allocation of a place. But this does nothing to redress the present limitation of such documents. Once the child is admitted, the contract confers no new disciplinary powers on the school if the terms of the document are breached.

And although this measure is framed in terms of parental commitment, it provides no new sanction against the parents. So they will be able to sign such declarations with a measure of cynicism and little risk of practical repercussions.

The Education Secretary has also promised to "bring back" detention - or so she told the Tory party conference in October. The power to detain pupils has, in fact, never been taken away.

Schools, by virtue of their quasi-parent al responsibilities, have always been entitled to detain a child, provided the punishment is not vindictive or excessive in relation to the circumstances, and

provided the parent has not expressly withdrawn the implicit right. Under the present law, only detention in defiance of such parental prohibition constitutes false imprisonment.

Either to remove this ultimate parental control, or to address the supposed uncertainty in the present law, the Bill rests the power of detention in future on an ambiguity, in stipulating that it shall not

be unlawful (that is, false imprisonment will not be involved) by

reason of "the absence of parental consent".

No doubt a court will some day be called upon to decide whether this means that detention can lawfully be used whenever the parent stays silent (the present position), or notwithstanding an express prohibition by parents. Until then, the statutory preconditions on the use of the power will provide plenty more scope for the obstructive parent to frustrate the school's disciplinary system.

Most of these preconditions are routine, and unlikely to upset current practice significantly. The school's policy of detention must have been duly promulgated; the punishment must be imposed by the headteacher or other specifically authorised teacher, and at least 24 hours' written notice, by any effective method, is to be given to the parent.

It is the fourth, "catch-all", requirement

that is likely to give rise to disturbing

imponderables - the detention must be reasonable in all the circumstances,a matter of fact and degree.

The Bill goes on to itemise certain aspects of reasonableness: the punishment, like those of the Mikado, must be proportionate to the offence.Relevant circumstances will include the child's age, religious background,and special educational needs (if any).

Such requirements - such as the parent should, in effect, make suitable alternative arrangements for the child's homeward travel - give the litigious parent ample opportunity for objection, and make those schools nervous of parental belligerence no less nervous of detention.

Finally, in the matter of exclusions, an appeal committee must consider the interests of the other pupils and staff as well as of the excluded pupil. In my experience, they do approach the matter in this light; they can hardly do otherwise.

It is just that they sometimes arrive at a diametrically opposite assessment of the impact of re-admission to that reached by the staff or other parents. The newly-formulated duty will do nothing to remove this possibility.

Lance Haward is a consultant in education law

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