School Exclusions and Children’s Rights

Content Warning: This episode mentions domestic and sexual abuse, possession of weapons, and mental health difficulties in relation to behaviour that may lead to school exclusion.

Children as young as 10 can be held responsible for crimes – but they also have special rights under the UN Convention on the Rights of the Child. In this episode, Alma-Constance and Lucinda talk to Florence Cole, an education solicitor at Harrow Law Centre, about the laws around children’s education, why exclusions happen, and what can be done to protect young people.

Florence has many years' experience supporting children and families through exclusions, appeals, discrimination cases, and special educational needs issues. She explains:

·       When parents can legally challenge a school or local authority decision

·       Why exclusions can have devastating long-term effects

·       How children’s backgrounds, trauma and unmet special needs can influence behaviour

·       The “school-to-prison pipeline” and pupil referral units

·       Practical tips for parents and carers facing exclusion hearings

·       How the law (Equality Act 2010, Children & Families Act 2014, SEND Regulations) protects children with special educational needs

When Florence was 10, she loved spending time in nature and had an imaginary friend called Frieda. 

References and Resources 

• Harrow Law Centre
• Behaviour in schools: sanctions and exclusions
• Discriminatory exclusions
• School exclusion: a review on disproportionate exclusion of certain children
• School suspensions and permanent exclusions

If you've got any questions, ideas about a topic or someone to interview, get in touch, we'd love to hear from you!! You can email us at kidslaw@spark21.org, contact us through the website: www.kidslaw.info or through social media: Facebook, X and Instagram @KidsLawInfo

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Transcript

 Kicked Out: What School Exclusions Really Mean for Kids

 This episode mentions words such as domestic and sexual abuse, possession of weapons and mental health difficulties in relation to behaviour that may lead to school exclusion. 

Hello, 

I'm Alma Constance. And I'm Lucinda. And we're here on the Kids Little podcast to talk about how law affects us all, especially kids and young people. Did you know that children as young as 10, can be held responsible for crimes and might even have to go to courts? Plus, kids have special rights given by the United Nations. That's why it's super important for young people to know about the law and how it can help protect them and others.

So,  what are we going to look at in this episode?

Well, we are recording this episode in September, and school has started. So, I'd like to know whether there are laws around children and young people receiving education.

Parents are legally responsible for ensuring their child receives an education either at school or at home. The state sets the overall framework and standards for education while its local authorities who monitor compliance and will intervene if a child is not receiving suitable education. Parents may challenge a school's failure to address conduct like bullying or appeal against a local author's decision regarding their child's education. These challenges can be based on the Human Rights Act 19 98, or specific education laws. There are certain circumstances when parents can find themselves challenging school and local authority decisions. Let's speak to Florence Cole, education solicitor from Harrow Law Centre, who has extensive experience in education law.

So, Florence, please can you tell us why you are specialised in education work, and why you work at the Harrow Law Centre?

Hi, thanks for having me on. I started out at an organisation called Alone in London as an advocate, many moons ago now. And I was working for, young people and then I went on to do my training contract to become a solicitor at Streetwise Community Law Centre, which was a law centre specifically for young people. And it was there that I found, a niche, and was interested in education law. And in particular, my interest when I was working in, streetwise. I represented a few gypsy traveller children, and, contrary to popular belief, gypsy traveller children are at the highest of being excluded more than black and Caribbean children, special education needs children, children who have been in care I did my training seat, in education law. Then left and went to Harrow Law Centre. So that was in 2010. And a lot of the cases I was seeing were young people that were, being excluded from school.  I then left Harrow Law Centre and went to work for, just for Kids Law for 11 years. And then it's only recently I've come back to Harrow Law Centre, so I've sort of like done a bit of a 360 and continued doing education law because I'm very passionate about it. And wanting to sort of like fight the cause because exclusions have a negative impact on students. We  talk a lot about pupils being excluded, but we seem to forget that my youngest clients have been five who have been permanently excluded from school. And you know, a lot of people get shocked by that and not a lot of people are aware of that. So, I just want to continue doing what I can do I’ve always wanted to work for law centres because I feel that, you know, they take on a lot of cases other people don't take on.

So, could you give us some examples of issues you see at the law centre which affect children and young people?

A lot of the cases that I have at Harrow have been children with special education needs who have got an undiagnosed diagnosis of possibly autism, ADHD conduct disorder. And these children are being excluded before an assessment is being carried out. Other cases have been children who have had offensive weapons on them, one young person I represented at Harold Law Centre, had a knuckle duster on him and he had forgotten that he had this knuckle duster, but he had been chased through the streets by some older boys. Bearing in mind this young person was under the age of 15. And so, he thought, okay, well at least if I have this on me, I can fight them off. He'd been carrying this knuckle duster on him for at least a good six months before the school found out, and the only way the school found out is because he'd told a friend and the friend went and told the teacher. So that's how he became permanently excluded. Other cases I've had whereby young people, and I always say they have to be careful in terms of what they're saying on social media. So, we have the terminology that's called sexting. And so a young lad was sexting, another girl, same age, but he got permanently excluded for that. I managed to get him back into the school. He was a bright student class, A student. And he, had, a lot of good things going for him and he'd just made a silly mistake. And as teenagers do, they explore with each other, get into relationships, things like that. But what I found with a lot of these, sexual cases is that the girl is always believed, not wanting to sound, you know, biased in any way. And they seemed to come down very hard on the young boys, you know? The police took no further action with it either. but, you know, he wanted to go back to the school to finish his exams and so they put measures in place for him to come back to the school, but it was very, very restrictive. Another example, as I say, I've had a 5-year-old who was being excluded, because of disruptive behaviour. Now, what the permanent exclusion guidance talks about is that a head teacher can only exclude a child if there's been a serious breach of the school's behavioural policy, and if allowing that child to come back, would cause significant harm to the other's welfare. Now, this young lad he was only five. He had experienced his mother being abused by his, father who had mental health issues. She had been suffering domestic violence while she was pregnant with him. She had also, when he was born, had to move about six to eight times fleeing domestic violence with this child by her side. So, this child has experienced all of these things, and of course they're going to be acting up a little bit in school. But the school weren't able to meet his needs, so they decided to permanently exclude him. And what happened with that is I managed to, be able to get him into a setting that could support his needs and give him the therapy that he actually needed because he had actually witnessed a lot of trauma. I had another case this was another 5-year-old, in another part of London. And the school was under special measures, and they just wanted to get rid of what they call the so-called naughty children. And they'd actually called the police. The five-year-old had basically had a meltdown, flipped over the chairs and the tables and was uncontrollable. And then he had about six to eight adults standing around him. Again. I went to that hearing and I pointed out what their policies say, managed to get him back into the school with the right support. And actually, the head teacher, sent a letter to say that they never want to exclude a 5-year-old again, and they're going to look at how they can change their policies. So again, that's another reason. Going back to your first question of why I feel so passionate about it, because we might not always win all the cases, but we can actually make a difference and make some of these people, in schools and governors, really think about, what it is that they're doing and where they can change things. There's been a lot of cases where a child is just sitting at home, they've been told not to come back, which is an unlawful exclusion if a letter hasn't been sent out to the parents. And sometimes, a lot of the time parents don't always know, what to do. And it's a case of having to phone the school and say, this child has actually been out of school for two years, what's happened here? This child can't, slip through the net.

I've had discrimination cases and I'm arguing direct discrimination at the moment in relation to school uniform. Some cases I've had in terms of hair with children, of mixed and black heritage. One particular girl, I mean I can say her name because she's out there, you can look her up, Ruby Williams. She kept being sent home because of her Afro hair and being told that she can't wear her Afro hair and that her hair was disrupting the other members of the class, so that was discrimination.

Since we did talk about children's backgrounds and how that obviously does have an impact on their behaviour in school. Do you think you can explain how you think schools can deal with these kinds of children that are obviously having a hard time at home and how they can deal with these behavioural issues that these kids are showing. 

Yeah, because some of them it is because they've got an undiagnosed need. So, it's not the child that actually wants to be naughty, it's that they can't actually control themselves all the time. So, a lot of schools will have a policy, to do with additional needs, and there'll be a lot of information within that policy in terms of what schools should do if they feel that a child is struggling. They will also have, a special education, needs policy as well. And in that it will say, what schools should be doing along with behavioural policies. So, these are the policies that I always look at first to see, well, what is it that a school should be doing?

But what I've also found is it’s not easy for schools. They're managing, you know, over a hundred children. They're there to teach them, they're not social workers, so it can be quite challenging for them. But what schools should be doing is following their policies because they say, well, we've given them pastoral support, we've given them a therapist, we've given them a mentor. But when I sit down and speak with the child and the parent, they haven't had any of these, additional strategies put in place, but it is hard for schools.  So, it is always looking at where, has this child come from? What is their background? They may not have had any breakfast. I've worked with some young people who haven't even had any sleep. Another case that I had, he was only nine; and he was living with his grandma with eight of his other siblings because his mother was in prison. His eldest brother had been released on the same day that his mother had been released from prison. Whatever the oldest brother was involved with it was catching up with him because in the middle of the night some people raided the house looking for him and my 9-year-old, client was hiding underneath the bed. And so when he went to school the next day, he was falling asleep. And he, was being disruptive in the classroom. A lot of families say, well, we don't want the school to know exactly what's going on at home ,out of embarrassment and people want to keep their own privacy. But I said to the parent, do you mind if I let the school know what's actually going on here? Because this is obviously disrupting this young lad's, day-to-day, lessons because he was falling asleep. He couldn't concentrate, so you can't just look at a child and think, they're just naughty.  Again, I had an 8-year-old girl who kept running around outside school. The welfare from school went to the mother's house and it turned out that the mom was a drug addict. And so, this child was living in a house where there was lots of drugs and only eight years old. So, you know, looking at the background and the history of a child, I feel is very important. And I do put that into my submissions if the family allow me to, because the terminology that's used for that is intersectionality. You have to look at the intersectionality of a child, to see what's going on.

So, what can be the consequences of being excluded from school and how does this affect a child and their future?

So once a child gets, permanently excluded, they have to go to a pupil referral unit.

I've only seen one really good pupil referral unit in my whole time of doing education law. And again, this young lad was accused of, sexual assault. He didn't even know what it was because he had his own special needs. But basically, a girl fancied him. He didn't fancy her and then she accused him of sexually assaulting her, but it meant that he had to be investigated by the police. Social services got involved. He was taken out of his family. He had to go and live with his elderly grandmother and kept running back to his mother's place because he didn't want to live with his grandmother.  And so, a child being excluded can actually cause a knock-on effect for the family as well, not just the child, because it can break up the family. I'm assuming you have heard of the school to prison pipeline. It's a well-known fact that this is where a lot of young people can be groomed by older boys or girls. What these older people look for is who's being picked up from the pupil referral unit.  If it's a child going home on their own, then maybe they don't have any family to support them. And then it's a case of, oh, would you like us to take you to the chicken shop? We can buy you some chicken, and then it gets to, we can buy you some trainers. And this becomes a street debt.

And then to clear that street debt, they're asked to be county lined. And county lined is when they're being told to go and sell drugs outside of London. But because they're too young, they're not really going to get a hefty sentence. They'll just probably get a referral order so, you know, that's, that's what can happen. Another gripe of mine, with pupil referral units as well, is that you can have a student who's made a silly mistake, been permanently excluded. They don't get to do all their subjects; they will only get to do the basic level of maths and English. And so sometimes I have actually negotiated with the school and with the pupil referral unit that why is this child being, punished for a second time? They're very bright. Can you let them sit their exams for all of the nine subjects that they may want to do? So, it can be very, very devastating, for children when they are excluded.  Another big thing at the moment is internal exclusions. We're not just talking about external exclusions, we're talking about internal exclusions where children are being kept in isolation rooms. And I had one young lad; he was accused of rape. He didn't do it. They got the people that did it, but they still kept him in isolation for six months. And his mental health was deteriorating. Now, these isolation rooms are very much like a prison visit it's a room with glass in between you and the person. Now, this is what some of these isolation rooms are like. The chairs are nailed down to the floor. The tables are nailed down to the floor and it was very interesting, during the lockdown, a young person described, saying that everybody has experienced isolation and the lockdown, this is what it feels like being excluded, you know, so there's a lot of isolation going on there as well. So, for the young person, it's sort of like the end of the road for some of them, you know.

So, what are some of the most common challenges that children and families face when dealing with the education system?  

One of the number one thing is sometimes they come too late. So, if a family want to challenge an exclusion, they should, first of all, be provided with an exclusions letter stating out the reason for the exclusion and their right to appeal to the governing body.

A lot of parents and families seem to go to the governing body on their own. They don't really know how to argue. And because it's too emotional, because it's their child, they're not always going to get what they actually want to say out in the right way. And so the argument can get lost in emotion. So,   it's always really good if they have an advocate, or a solicitor and then if a child has been excluded, a governing body hearing has to take place within 15 school days. Sometimes they will come at on the 14th day and say that the governing body is tomorrow. And it's too late but what can happen and what has happened in many instances is that we can write to the school and ask them, can they provide another date? Because the family have only found out that they're able to get some legal representation so it can be adjourned. Because we have to read the school file. Read the school's policies also get statement from the child of, their history of what's happened. And then of course, after a governing body meeting, if the exclusion is upheld by the governors, then you've got another 15 school days to appeal to an independent review panel. And I, think another issue is that families just don't know who to go to because a lot of solicitors left education law because of the legal aid and sentencing and punishment of offenders act that came out in 2012. So, there's no more legal aid for permanent exclusions. Sometimes a language barrier, can be another issue. If they can't read English, they've got to wait for maybe a family friend who can speak English to read the letter to them, they end up going on their own, but because of the language barrier,  it ends up being adjourned, and then it causes more frustration and I’ve had a lot of people that become unwell. I've also had parents say that I can't be bother to do this anymore because it's just too stressful.

I think something that would be interesting for us to know is how many calls do you get a day, and how many cases do you need to go through in your day to day?

You know, I think I've spoken to about four or five people today and they're from outside London. Which is another issue because, they don't have anybody to go to, to help them with the school. And so, what I do tend to do is I spend quite a bit of time on the phone with them explaining what their rights are and to always have the permanent exclusions, guidance, and the SEND code of practice guidance, which helps with special education needs children.  I think a lot of parents are becoming more aware of that now because we are absolutely inundated with calls. And at Harrow Law Centre, we are just a small team of two and a half, and I say a half because we've got a trainee. We are at capacity. I signpost them to other organizations, and they're also at capacity as well. So, some people will want to try and do it themselves, but it's very difficult when they do it themselves.

In terms of cases, I couldn't really give you a number, but all I can say is that some of the cases go on for quite some time, especially where there's tribunal hearings. Some cases can be resolved quite quickly because it's just a letter to the school, and the school will say, okay, then yes, we'll do this, we'll do that.

Sometimes it can even just start with a meeting. So if, parents feel that their child might be at risk of exclusion, it's always good to try and have a meeting with the school to begin with, So that's a preventative measure, that can sometimes take place and other cases just go on and on and on because sometimes we are going back and forth with the local authority or the local authority aren't, responding to us, or the school isn't responding to us. At least, you know, with the tribunal, you've got the tribunal date, even though it's next year, you know, that hopefully it's going to happen.

But the problem with the tribunal, which is obviously another barrier, is that there is a massive backlog at the tribunal as well. So in between all of that, I do encourage parents, especially for special education needs cases to maybe consider mediation. But you can only do mediation for certain things. But it is worth trying to have mediation. for other elements an education, healthcare plan what we see a lot of as well, is that parents want a particular school for their child, but a lot of schools are at capacity. So the child has to end up on a waiting list. Or it goes to tribunal and even the judge is saying I've heard from the head teacher and there just isn't going to be enough room in this school for the child. And I always say to parents if you forced it so that your child can go to a particular school and because they are lacking in resources, something happens to your child, then that turns out to be a health and safety issue,

Just to go back to children with special educational needs and disabilities, do they have any legal rights to protect them?

Well, yes. There is legal aid for special education needs. You've got the Equality Act 2010, you've got the Children and Families Act 2014, and you've got the SEND Regulations 2014. If a child has a special education need and they're struggling in school, then under the Equality Act 2010, the schools need to make reasonable adjustments.  The Children and Families Act 2014 is very good.  It provides information a parent thinks that a child needs an education healthcare plan. When it should be drafted.  When it should be reviewed. And it provides information if the local authority aren't keeping to timescales, and there's also the SEND regulations 2014, for, some backup and then it obviously, it depends on that particular case.  So there could be a human rights element to it. There could be, you know, right to private and family life to it.

Obviously, each case is different, but you know, once you get all the documents and the facts, then you know what it is that you are arguing. And then you've got the guidance, SEND code of practice, that, I tend to use.

So, you've given us a lot of cases you have worked on. Can you describe one case that had a particularly meaningful impact on you or that highlights the importance of legal advocacy in education?

I can't say one they all have an impact on me, because as I say to people, I treat my clients as if they were my own children. But obviously I can sort of like separate the emotion, I would say it has been the five-year-olds, because I just don't think that anybody under the age of 10 should be permanently excluded. Between the ages of zero to seven are the most formative years of a child's life, and if you are calling the police on a 5-year-old, if you're excluding a child at five years old, what message does that embed in the child's mind growing up? You know, and I mean for older children as well, it still has quite a devastating effect because a lot of children feel like they've been treated like criminals by the school, so it's very, very important that a child is placed in the right school with the right support. But I would say, you know, if you're asking me that cases that stick out in particular, I would say it's the cases I've worked with five-year-olds, and also cases I'm getting so far with the case and then the parent decides they're not going to take it any further, sometimes when people are so used to having negative things happen all the time, when something positive starts to happen, they don’t know how to deal with that, so they'll run away from it. So, I think that's quite sad. And I had one case like that where this young lad wanted to be in the army and mum had really been battling that's another, barrier a lot of the parents may have their own mental health challenges as well. So you are managing the child, you are managing them. Because mom had her own mental health challenges, she was able to communicate or articulate very well. So, every time she communicated with the school, they were just shutting her down. Then I got involved and it was like, well, A, B, C, D needs to happen.

This is what this child needs managed to get him an interview for a school related to the army that he wanted, and it was going so well. And then the mum called me up and said he, he's not going there anymore. And I said, but can I ask him? She wouldn't let me speak to him. So that, I think that, that case sticks out in my head because I still wonder, you know, what's happened to him. But there are a lot of, young people I've worked with over the years because I've been working with young people since I was 19, doing mentoring and advocacy. So that's always been my client group. So, I often think about a lot of the young people and children I've worked with. And it's very, coincidental. We're having this now, but in June, I had a lovely email from a young girl that I had helped when she was 15, who had been excluded. She's now 26. She's been to university; she's got her own child. But she wrote in the email that I was her lifeline because she felt so distraught when she was excluded. And it was the end of the world for her.

So, in your experience, do you believe that the legal system effectively protects young people in terms of their education and what would improve the situation? 

That's a very difficult question. So, me personally, and from my experience, I would say yes and no. The law is there to protect, but I'm not confident that it does that a hundred percent. I remember telling one parent because she was going all around the houses. She wasn't getting to the point, and she was communicating with the local authority, but they just weren't listening to her. I said, okay, your child has been out of school for six months. He's of compulsory school age. Just state in your email under section 19 of the Education Act 1996, he has to be educated. And then she called me, and she said, oh my God, Florence, it worked. Because they're now wanting to have a meeting with me to discuss schools. So, I would say, because if you know what legislation to quote, then people will sit up and listen. But it doesn't always mean they are going to do that. And it's not because they're bad at their job, it's because everybody is overwhelmed and inundated, you know? I mean, legislation is there and it's in place to try and protect and try and enforce, but on the ground it's something completely different. When you're working in it on a practical level, and this is why I sometimes get a bit fed up with paper and policy as I call it, oh, we've got to tick this box and tick this box. And it feels very much like over the years, you know, things have got worse. Despite lots of policies and legislation being put in place, it doesn't seem to be going very well. And we are still fighting this battle.  But I think, I would want the government to bring back legal aid for permanent exclusions because it is on the increase, and there's not enough education providers to do this type of work.

So, do you have any advice for children and young people who are facing a school related difficulty?

So, I would say if you've got a trusted adult that they can speak to, then please go and speak to that person. Sometimes, students have a trusted teacher that they get on well with in school, but the only thing with that is if you are going to tell me something that I think is a safeguarding issue, I'm going to have a duty to report that. And then it's almost like the trust is betrayed. You know, I've, had a few cases where they're under 18, I've got a duty to do a risk assessment and I have to raise this, and I talk them through the steps and help them to understand that. I do think that it's really important that they need a trusted person that they can trust. And if they're not very good at communicating, journal, so write your feelings out. But at least if they can talk to a trusted adult and somebody can identify, well, hold on a minute, what's happening to that child isn't right, then at least the adult can start trying to seek advice.

I have a question that we ask all of our guests.  What were you like at 10 and did you have any ideas about what do you wanted to do when you grew up?

Okay, so I was quite a shy person at 10 years old. I was fostered as a child, but it was called private fostering then. So, I was out in the countryside. The only black child. So, I used to spend a lot of time on my own in the nature reserves. I loved it because I liked nature, so I used to spend a lot of time in the Nature reserve, and I had an imaginary friend called Frieda. So that's what I was like, as a 10-year-old. And I didn't realize until I was older that, you know. I'm slightly dyslexic as well. So, I struggled a lot at school myself, and that was one of the fundamental things that I always felt quite misunderstood as a teenager and as a young person. And so, I always knew that I wanted to help people. I wanted to help the underdog.  And then I didn't know at 10 that I wanted to help the underdog, but it was when in our day, Lucinda, you'll probably know when we had to take our options in the third year. And I said to my history teacher that I want to help people. And she said to me, how are you going to do that? And I said, well, I want to help disadvantaged people, and so I'm going to become a lawyer. I'm going to become a civil rights activist lawyer, is what I said. But her response to me was, you are black, and you are a woman. You won't get a foot in the door. And then many years later, when we had a school reunion, some of the girls reminded me that that's what I had said. And I knew I had said that, but they said, you're the only one that's actually doing it. You're the only one that's actually doing what you said you were going to do.

That was so powerful. Florence. Oh wow.  But thank you so much for giving such, clear and incredibly moving examples. It must be quite a business working in that area for you. And I love the thought of you with your imaginary friend in nature. The best friend you can have. An imaginary friend . Yeah.

Well, thank you so much Florence, do you have any final advice for children who are interested in educational work and how they can achieve what you are doing?

Ooh, um. I would say if they're interested in obviously, you know, find out what law centres and what law firms do, education law and maybe, you know, see if they can shadow them and see if they enjoy it. Because until I started my training contract, I didn't even know that education law existed in this, way. So do the research and you know, if people want to, give me a call, then you know, they can do that. Another good thing, especially when I was at Just for Kids Law, is we had young ambassadors and they would come back, , and help out other young people, or they would  give feedback and do talks because a lot of them themselves had been excluded so they could speak about their experience. some of these ambassadors 

When Florence was 10 she …

References and Resources

Florence 

SEND