Safeguarding ' Directing Pupils Off Site

• Published date: 23 September 2021
• Subject Matter: Consumer Protection, Education
• Law Firm: Winckworth Sherwood
• Author: Ms Laura Martin

The recent decision of the High Court in CHF and CHM (Children), R (On the Application Of) v Newick Ce Primary School & Anor [2021] EWHC 2513 (Admin) highlights the difficulties around the use of the power contained in section 29A of the Education Act 2002 that maintained schools have to direct children off-site for learning for the purposes of improving their behaviour. This statutory power is most commonly used in situations where a headteacher decides to direct a pupil to alternative provision ("AP"), usually in the form of a pupil referral unit or a specialist provision, for a period of time and for a specific purpose: for example to address a particular type of behaviour or to provide a degree of respite and additional support for a pupil who is finding a certain situation challenging. The aim should always be to reintegrate the pupil back into the mainstream school at which they are enrolled. The power applies to maintained schools, and varies slightly for Academies (see our briefing note for more detailed advice on Academies and directing pupils to AP).

The direction to off-site provision is distinct from the headteacher's ability to exclude a pupil from school on a temporary or permanent basis. The exclusion process has a separate mechanism for consideration by governors and independent review. By contrast, the power to direct a pupil off-site for the learning is unilateral: it does not require the parents' permission, nor is there a process by which parents can appeal the decision. It is therefore often a source of contention, particularly if parents feel that the headteacher has not dealt with the circumstances leading up to the direction in a fair manner. This can in turn lead to attendance issues, children missing out on education, and further down the line, school refusal. It is therefore important to ensure that the statutory power is used appropriately and after careful consideration of other potential options.

The case of CHF and CHM differed from the usual circumstances in which the S29A direction power is used. In this instance, the children concerned were very young, the school was very small, the incident leading to the off-site direction was very serious, and hence there were significant safeguarding implications for the school and its pupils had the direction not been made. Mr Justice Fordham was careful to point out in his judgment a number of points regarding what he termed the "safeguarding separation" (keeping the children...