Ensuring children have support to challenge discriminatory exclusions from school

Does Article 6 of the European Convention on Human Rights (ECHR) apply to Independent Review Panel proceedings concerning a decision to permanently exclude a child from a school, and should children in that position therefore be eligible for Exceptional Case Funding from the Legal Aid Agency?

Child X, who is black and disabled, successfully appealed against his exclusion from school at Independent Review Panel proceedings. However, he could not obtain Exceptional Case Funding (ECF) from the Legal Aid Agency. This was because, in applying section 10 of Legal Aid, Sentencing and Punishment of Offenders Act 2012, the Legal Aid Agency held that Article 6 European Convention on Human Rights (ECHR) - (Right to a Fair Trial) did not apply to proceedings concerning a decision to permanently exclude a child, and did not recognise the seriousness of the issues in the case.

Too many children and young people in Britain face discrimination and barriers to opportunity, including prejudice and a lack of proper support in education settings. Part of our work to tackle this is supporting legal cases to challenge discrimination in school exclusions. If the courts find that Article 6 should apply at Independent Review Panel hearings, then children can be legally aided and represented at these hearings in order to challenge discriminatory decisions.

We funded Just for Kids Law to judicially review the Legal Aid Agency’s decision. The application was initially rejected by the High Court as the Agency agreed to reconsider its decision. Following its reconsideration, the Agency upheld its decision to refuse ECF on the same grounds as before.

At a hearing on 21 November 2023, the claimant was given permission to bring the judicial review, which will be heard before Easter 2024. More details about the case are available on the Garden Court Chambers website.

Children who are excluded from school should be able to be represented at exclusions hearings before Independent Review Panel hearings, allowing them to benefit from legal knowledge in what is a quasi legal proceeding.