High Court judge rejects legal challenge over use of ‘isolation’ in schools

Mrs Justice Collins Rice heard the case brought by pupils anonymised as Elise, Luke and Lydia, each through their mothers.

They objected to disciplinary measures taken against them at a school run by the Gorse Academies Trust.

The judge noted the school uses “a highly detailed system of behavioural expectations, underpinned by a correspondingly detailed system of positive and negative reinforcements: encouragements and disincentives, or rewards and punishments,”, which it calls ‘positive discipline’. The school is rated ‘good’ by Ofsted.

The court heard all three pupils had struggled to meet the school’s behavioural standards.

Elise is 15 and was frequently suspended and had other sanctions imposed on her. Luke is 13, and soon after joining the school was indicating “some traits of autism”.

Lydia is in her mid-teens with a history of behaviour infractions and sanctions, though with recent improvements.

Collins Rice J said: “Rolling the permission stage into the substantive trial inevitably has disadvantages…

“First, like many judicial review claims, the present claims have evolved somewhat over time and continued to do so up to – and perhaps even during – the trial.

“Crystallising out the precise arguable bases of challenge was therefore unfinished business, with the corresponding challenges for the defendant in meeting them and the court in adjudicating upon them.”

She said the litigation had “generated quantities of factual evidence and material on both sides considerably beyond what might normally be expected…without there having been a clear resolution of precisely what, if any, factual dispute subsisted between the parties or its relevance, if any, to the resolution of the claim”.

From five grounds of challenge Collins Rice J said she would grant permission on the alleged failure to follow the non-statutory guidance Behaviour in Schools: advice for headteachers and school staff issued by the Department for Education in February 2024; and inflexible application of disciplinary policies, and one on the claimants’ rights to private life protected by Article 8 ECHR taken with section 6(1) of the Human Rights Act 1998.

Collins Rice J said the essence of the pupils’ challenge was “the reasonableness of the school’s having engineered an outcome in which the claimants had spent anything up to a fifth, a quarter, or approaching a half, of an academic year removed from classroom teaching”, whether through isolation or suspension.

Grappling with this question though “demands confronting another core question: what was the alternative?” Collins Rice J said.

She found no obvious answer. “The claims themselves do not suggest what they say the school should have done instead of pursing its course of imposing isolation (or suspension) on an issue-by-issue basis and in accordance with its policy.

“It is a question I asked directly at trial, and the opportunity was not taken to assist me beyond proposing ‘less isolation’.”

Collins Rice J was also unable to see “the decision-making in these claimants’ cases was vitiated by a failure to comply with the guidance”.

Turning to the human rights challenge, the judge said: “I have to hold in mind the warning given in R (Ullah) v Special Adjudicator [2004] 2 AC 323 that it is not my function to develop human rights law further than I can be ‘fully confident’ that the ECtHR itself would go.

“I cannot see it has gone anywhere near to where the claimants wish me to go. I am far from confident it would go there. On the contrary, it has expressed clear reservations about doing so when it has been asked directly to consider the situation of school students.

“To do so in the present case would in my judgment be an unprecedented and unprincipled human rights intervention in the professional world of education provision with potentially far-reaching implications. I cannot see that Art.8 is, even arguably, engaged in this case.”

Mark Smulian