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High Court of New Zealand Decisions |
Last Updated: 3 March 2014
ORDER PROHIBITING PUBLICATION OF NAME OR IDENTIFYING PARTICULARS OF THE
APPLICANT
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CIV2013-404-4097 [2014] NZHC 253
UNDER the Judicature Amendment Act 1972
BETWEEN "A" Applicant
AND MORAG FRASER HUTCHINSON First Respondent
THE BOARD OF TRUSTEES OF GREEN BAY HIGH SCHOOL Second
Respondent
Hearing: 19 February 2014
Counsel: SRG Judd and J Puah for applicant
RM Harrison and EL McWatt for first and second respondents
Judgment: 24 February 2014
JUDGMENT OF FAIRE J
This judgment was delivered by me on 24 February 2014 at 10am pursuant to Rule 11.5 of the High Court Rules.
Registrar/Deputy Registrar
Date...............
Solicitors: Youth Law, Tino Rangatiratanga Taitamariki Inc, Auckland
HarrisonStone, Auckland
"A" v HUTCHINSON [2014] NZHC 253 [24 February 2014]
The application
[1] The applicant is a fourteen year-old male student. He sues by his
mother who was appointed his litigation guardian. He
seeks a judicial review
against the Principal, the first respondent, and the Board of Trustees, the
second respondent, of the Green
Bay High School.
[2] He asks the court to quash the decisions of the Principal and the
Board of Trustees suspending and excluding him from the
Green Bay High School.
Those decisions were made on 5 and 11 July 2013 respectively.
Order prohibiting publication
[3] On 2 September 2013, this court made an order prohibiting
publication of the name or any other details which might lead
to the
identification of the applicant in these proceedings. The order required the
applicant to be referred to as “A”
in any publication of the
proceedings. For that reason, I shall refer to the applicant as “A”
in this judgment.
The applicant’s background
[4] “A” has been in the primary care of his mother. His
mother and his father separated when he was an infant.
He has a younger brother
who is aged 10. His mother has not been able to seek employment. She says
that is because “A”
has been out of school quite a lot and also
because of “A’s” brother who, she says, is quite young. His
mother
records that there has been a protracted history of custody proceedings
with “A’s” father. “A’s”
father currently
lives out of Auckland and “A” sees his father fortnightly, on
weekends. “A’s” mother
says that since “A”
started schooling he has difficulty and has been identified as having special
educational needs.
[5] The respondents accept that the applicant has mental health and diagnosed learning and behavioural difficulties, including dyslexia and Aspergers, which have required treatment and assistance from psychologists, psychiatrists, teacher aides and
other specialists over many years. That acceptance arises from paragraph 5
of the statement of defence and was confirmed also by
Mr Harrison in his
submissions.
[6] The evidence discloses “A’s” involvement with psychiatrists, psychologists and paediatricians, and a variety of other specialists. In a report dated 8 August
2013, Elizabeth Osborn, who is an educational psychologist and who
has been
attending on the applicant for a number of years, described
“A’s” position as follows:
“A” is a young man aged 14 who has experienced a number of
different school placements (six before starting at Westbridge
Residential
School), significant negative attention associated with his learning and
behaviour and little academic or social success
in his earlier schooling
experiences.
He has been the subject of numerous assessments; learning assessments, including SPELD (2007), behavioural (Ministry of Education, MoE), cognitive (Wendy Radford, Bay of Plenty District Health Board 2009, WISC
– 4 and WJ 111), paediatric (Dr Gilbert, staff at Starship Children’s Health,
2010), and psychiatric, to assess suicidal intention and anxiety (mental health team, 2008). He has been seen by the Ballantyne Learning
Programme (as recommended by SPELD), the Voyagers Programme and
Kari Centre, has had RTLB involvement, art therapy, psychiatric help and involvement with Man Alive. A more recent assessment at the paediatric
clinic at Waitakere Hospital suggested “A” had many symptoms comparable
to those experienced by children with Aspergers.
“A” has received a range of diagnostic labels outlining learning
and behavioural concerns. Learning assessments confirm
that “A” is
dyslexic and highlight “A’s” difficulty in reading and
writing. Cognitive assessments
indicate significant processing concerns and
behavioural data repeatedly focused on the reactive nature of
“A’s”
responses to various situations. The dyslexic and
Aspergers diagnoses appear most relevant to guiding future planning with respect
to current need areas.
[7] Ms Osborn’s report goes on to summarise the recent background
in relation to “A’s” schooling and
the areas of need that
required development and support as follows:
Data and reported information suggests that “A” experiences difficulty processing information and emotion across a range of situations. Any pressure to process information quickly results in anxiety for “A” and over time appears to have produced patterns of reactive aggressive defensive behaviour in order to cope, reduce anxiety or avoid the situation. The emotional and social outcomes of these patterns for “A” have been experiences of rejection, isolation and considerable time out of the learning environment. The limited opportunity to access learning success creates a negative view of self within the learning environment and negatively affects self esteem. There is substantial evidence linking difficulty with cognitive
processing speed and delays in compliance with increased frustration,
reduced self expression and aggression.
Although “A” is able to self manage in many situations he still
requires secure adult relationships to calm and regulate
his emotions especially
when highly aroused, anxious and self protective. When “A” becomes
anxious he is less able to
process information quickly or rationalise the best
choice to make at that time. He may be encouraged to stop, take time to calm
and has experienced opportunities to successfully work through stressful
situations. Without the appropriate support these patterns
have become
reinforced and have contributed to difficulties with motivation to engage and
increased anxiety about school. With
the appropriate supports “A”
has developed emotionally, gained confidence and experienced social success.
He has showed
signs of being more emotionally secure and was starting to develop
more effective methods of coping when stressed.
[8] Ms Osborn’s summarised recommendations were as
follows:
1. “A” requires careful and structured social
experiences to access and maintain successful social experiences
with the school
setting.
2. “A” requires ongoing support and self management strategies to
continue to identify and regulate emotions.
3. “A” requires adult mediation and redirection
when emotionally aroused and anxious and when calm strategies
for re-framing
and to problem solve emotionally.
4. “A” requires a structured learning environment,
visual supports and regular prompts to access support as required
and specific
steps for processing instructions.
5. “A” requires redirection to sensory experimental
tasks to self manage and be able to process and talk
through
emotions.
6. Future interventions may also need to include parent
agreement around how best to support “A” and
how to communicate in
the least stressful manner for all concerned.
[9] Mr Judd referred to the numerous reports on the Ministry of
Education file, which discuss “A’s” difficulties
dating back
to when he was a six year-old in 2006. There has been a consistent pattern of
behaviour over those years, behaviour which
is consistent with Ms Osborn’s
report.
[10] “A’s” schooling history is summarised by his mother. Again, I adopt the short summary provided by Mr Judd:
a. Age 5 –[Primary School] – first teacher says difficult to
teach;
b. Ages 6–7 – [School] – out of class a lot; contact with SPELD;
diagnosis of dyslexia;
c. Ages 7–9 – [School] – RTLB support; enrolled
with a SPELD tutor; Voyagers therapy with psychologist;
psychiatrist
assessments;
d. Ages 9–10 –[Primary] – MOE psychologist
involved; teacher aid assistance; medication considered; assessment
at Starship
Hospital and Kari Centre; “A” suspended from school and
suspension extended on condition that “A”
enrols at Westbridge
School;
e. Age 10 –[School] for 12 months – paediatrician diagnoses possible
Asperger’s;
f. Ages 11–13 –[Intermediate School] – supported
by SENCO, teacher aides, educational psychologist; RTLB
service; only had a 2
day suspension in 18 month period;
g. Age 13–14 – Green Bay High School from February 2013
until his suspension on 5 July 2013
[11] To that summary I add the following. “A’s” time
at Intermediate School signalled a change and provided
some comfort to those who
were close to “A” because of the level of support he was given.
His ability to manage his
major behavioural problems had significantly
improved.
[12] When “A” started at Green Bay High School, the previous level of support no longer continued. The Resource Teacher of Learning and Behaviour (RTLB) support, funded by the Ministry to work with schools, which has the capacity to provide a classroom teacher with special teaching strategies, was not activated on “A’s” enrolment meaning that the wrap around services present at “A’s” last school were not engaged. “A’s” mother was concerned that there was little consultation or discussion between the school and Elizabeth Osborn about measures to manage “A’s” needs at Green Bay High School. Unfortunately, it was not until a series of incidents in the first term that an individual education plan (IEP) was developed, in April/May 2013. The IEP set out necessary accommodations to ensure “A’s” learning. This included having a time out card, a teacher-aide, and acknowledging that relaxation techniques needed to be encouraged. In the IEP meeting notes, dated
10 June 2013, it was recorded that it was unlikely that “A” would have teacher assistance hours available to him in the next term. It also recorded that behaviour was not the primary cause of concern.
[13] In a letter from the school, dated 24 July 2013
“A’s” mother was informed of
the formal withdrawal of RTLB support. The letter stated:
He is receiving a comprehensive learning programme which is meeting his
needs. The RTLB has monitored his case over term 1 and 2
and through
consultation with the Green Bay High School special needs coordinator it has
been determined that his case can be closed
... We wish “A” ongoing
learning success at Green Bay High School.
[14] I accept Mr Judd’s submissions that the irony in this is that
the letter advising of the withdrawal of RTLB support
was after “A”
had been suspended on 5 July and excluded on 11 July 2013. The letter discloses
a complete misunderstanding
of the position. The letter was not consistent with
“A’s” needs at previous schools. It did not take account
of
the issues that had already arisen in the first and second terms at Green Bay
High School, which were recorded in the school’s
records, and, in
particular, in the Dean’s report for the Board’s
meeting.
[15] In an email sent from Elizabeth Osborn to the Dean of year 9 at
Green Bay High School on 25 June 2013 she records
“A’s”
mother’s concern about “A’s” behaviour and the
support for him. It mentions
concerns around defiance, not coping, and
inability to express feeling. It suggested an important strategy,
namely:
I suggest “A” routinely engage in a preferred and sensory tactile
activity to settle him (if unsettled and not able to
talk/comply) and then talk
to him when he was settled/ready/ able to engage otherwise it will come across
as lecturing or confrontational
– both areas that are triggers (past and
current) – and would escalate “A” making it more difficult for
him
to stay rationale in his thinking and that he would revert to past patterns
that are familiar to him.
These comments are particularly important when one considers the incident
that occurred on 5 July 2013, some 11 days later.
[16] The email went on to question whether “A”:
Is identifying with a significant person at school, the counsellor or
yourself, someone he can go to when not coping. This person
is best someone
that is not caught up in managing “A” as the two roles might
conflict for “A”, depending
on the degree of management
required.
The letter then concluded that the Dean should let Elizabeth Osborn know if she could be of assistance with any “brain storming of strategies to prevent ongoing
repetition of these behaviours”.
[17] The analysis of the position advanced by Elizabeth
Osborn’s email is important, particularly when the incident
of 5 July
2013 is considered. Indeed, the year 9 Dean’s report to the Board
noted:
During this time Elizabeth Osborn contacted me and suggested some strategies,
all of which with one exception, were already in place.
It is unfortunate that
a further meeting wasn’t arranged prior to “A’s” return
to discuss her email.
The incident
[18] The incident that led to the Principal making the decision to suspend “A” from school on 5 July 2013 has been described in a number of reports that were sent to “A’s” parents following the suspension letter from the Principal and before the matter was considered by the Board. First is the Principal’s report, dated 9 July
2013. There is a report from a Deputy-Principal, dated 8 July 2013, which
was compiled, she says, following a statement from the
staff member involved.
There is a report from the year 9 Dean. There are additional reports
from the senior leadership
team, and two other teachers. The material does
not include a written report of the teacher involved in the
incident.
[19] The facts, by and large, are accepted, although in one or two areas
there is a lack of clarity which might well have been
cured had there been a
report from the teacher concerned.
[20] The incident occurred in period one on Friday, 5 July 2013.
“A” brought his skateboard into his English
class. He was
asked by the teacher to leave the skateboard at the front of the room for
collection at the end of the period.
At first “A” was reluctant to
do this, but then left the skateboard behind the teacher’s desk.
Approximately 10
minutes into the class, “A” collected his
skateboard and left the classroom. He then began to skateboard back and
forward
outside the classroom window. The teacher left the classroom and
attempted to speak with “A”.
[21] It is not precisely clear, on the material before me, what happened
when the
teacher asked “A” to give him the skateboard. The account from another teacher
says that “A” fell off the skateboard and his teacher picked it
up. She said that “A”
got mad and yelled to give it back and snatched it off him.
[22] In the Deputy-Principal’s report, she described what had been
relayed to her by the teacher slightly differently.
She records that the
teacher tried to get the skateboard from “A” but was refused it and
it was pulled from his grasp.
[23] It is common ground that “A”, during the course of this
encounter, yelled obscenities to the teacher involved
and another teacher who
was with him at the time. The teacher gave “A” two options. They
were to either hand the board
over for collection at some later time or continue
to act in a defiant manner and accept the consequences. Clearly,
“A”
decided the latter. The teacher instructed “A” to
go to the Dean’s office. “A” then skateboarded
towards
Student Services. The teacher sought support from a colleague to cover his
class. He then followed “A” to
Student Services.
[24] There was another incident at that stage. “A” stumbled
from his skateboard. There was an exchange between the
teacher and
“A” which resulted in “A” again yelling obscenities.
The teacher followed “A” into
Student Services. “A”
pulled the door to prevent the teacher from entering. The teacher put up his
arm to stop the
door from shutting and his arm jammed and his head was hit by
the closing door. “A” continued to yell obscenities to
his
teacher. The teacher then left Student Services. “A” was left to
be managed by the Dean for year 9 and a member
of the Senior Leadership Team.
The Dean says that, at this time, “A” needed to be physically
restrained by senior members
of staff so that he was not able to attack his
English teacher. “A” announced that he was leaving to go to the
dairy.
The teachers established that that would not be a good idea.
[25] The bell for period two went and “A” said he was going to MMT (the multi- materials technology class), his next scheduled class. He was told that was not a good idea. “A” appeared to be calming down, but it is reported that the teachers did not feel he had calmed down sufficiently for them to ask for his skateboard. “A” then went to his next class. He was described as no longer angry on the outside, but was determined to go to the class. He then skated down to the class. He was asked
to leave but refused. The class was watching a video at the time.
“A” was not disruptive. The teachers, however,
considered that it
was not appropriate that he remain in a workshop with tools, having regard to
the previous events. Eventually
“A” left the room. He apparently
then went to a safe place that had been established for him and was then
observed by
the Dean and a member of the Senior Leadership Team.
[26] I record that the above summary of the incident of 5 July 2013 is
extracted from the reports. It is in fact contained in
no single
report.
[27] “A’s” desire to go to MMT is not surprising having
regard to the comments of
the year 9 Dean who described “A”, in his report, as
follows:
Aside from the serious behavioural issues, [A] is a likeable young man,
demonstrating great potential in his field of interest in
multi-materials
technology. He has on a number of occasions proudly shown his creations to
teachers about the school. One example
of this was a catamaran he bought to
school. ... A number of staff spoke to him about how impressed they were with
his creations.
[28] The incident finally concluded when “A’s” mother
came to the school and took him home following a request
from the year 9
Dean.
The decision to suspend
[29] The Principal, who has sworn an affidavit, set out her understanding of the background. Understandably, she had little direct involvement with “A’” and subsequent steps taken to accommodate his needs at the school. That was undertaken by other staff members. She was generally aware of the steps that were being taken and the efforts taken by staff. She set out in her affidavit an explanation of the steps that were taken by the school and by the particular staff members. She backgrounded the incident by referring to the fact that in the week commencing
1 July 2013, “A” had returned to school after several days of “time out”. That had been arranged with “A’s” mother. Its purpose was to allow “A” some breathing space out of school to avoid tensions rising and the possibility of any incident occurring.
[30] Unfortunately, there was an incident on his second day back. He was
then absent from school for two or more days, apparently,
with both the
school’s and the parents’ consent. He returned to school on 5 July
2013, the day of the incident.
[31] The Principal consulted with a number of members of staff and, in
broad terms, received reports on the incident. She described
the background
that she had regard to before making her decision to suspend as follows:
(i) There had been an incident involving an extended episode
of defiance by “A” towards several staff,
which had caused physical
and/or emotional harm, and which at any time could easily have escalated out of
control and cause further
harm to members of the school community.
(ii) There was extensive evidence of sustained commitment
and professional engagement by school staff with “A”,
his family and
outside agencies over time to design and implement a range of complex strategies
to support his learning in a mainstream
setting;
(iii) A high level of communication and consultation was
apparent between home and school so all parties involved directly
with
“A’s” education were well informed of the immediate and
long-term issues related to “A’s”
behaviour;
(iv) Staff working with “A” had genuine professional
concerns that “A’s” history of complex
and challenging
behaviour could not be addressed easily or successfully over a short period
of time. There was diminishing
confidence that that strategies to manage
“A’s” learning needs were effective and/or
sustainable.
[32] She said that in making her decision she was concerned with the
wider issue of safety at the school. She concluded that,
in the circumstances,
she needed to suspend “A” and refer his case to the Board. She then
asked the Deputy-Principal
to contact “A’s” mother and to
advise her of the Principal’s decision. She then issued a letter to
“A’s”
mother outlining her decision. She says that the
letter mistakenly referred to s 14(1)(b) of the Education Act 1989 when, in
fact,
she meant to write s 14(1)(a). Her intention, she said, was that
the decision was based on gross misconduct, being
a harmful and dangerous
example to other students at the school.
[33] I observe that there is no comment in her assessment of the strategies suggested by Elizabeth Osborn which are the subject of the comment that I have recorded in the Dean’s report. Those strategies, on their face, appeared to be
directed at addressing the behavioural issues and, in particular, the
defiance which is referred to in the various reports.
[34] In her letter to “A’s” mother, the
Principal records that “A” has been
suspended from school and further provides:
I have made this decision because I am satisfied that his gross misconduct is
harmful and a dangerous example to other students at the school ...
I have decided to suspend “A” because of his refusal to follow
instructions, severely disrupting the learning of other
students, being verbally
abusive and for acting in a manner that was likely to cause serious harm to a
staff member.
[35] All of this was completed on the day of the incident.
[36] Mr Judd observed that there is no time limit in the legislation for
a principal when making a suspension decision. The principal
is entitled to
take as long as he or she needs to establish the full facts of the incident in
question and the full circumstances
relating to the individual student before
deciding whether or not to suspend.
[37] The Court of Appeal in Bovaird v J
said:1
[60] We accept that the authorities support the proposition that before
a decision to suspend is made, the principal should inform
himself or herself as
to the circumstances of the student and the context of the misconduct. Both the
Palmerston North Boys’ High School case and Auckland Grammar
School case support that proposition. But it does not seem to us to be
axiomatic that this involves discussion with parents. A school may
well have
sufficient information from its own resources without the need to consult a
parent prior to a stand-down or suspension
decision, especially where the
student concerned has only recently been subject to similar disciplinary
processes, as was the case
with J.
[38] “A” is no ordinary student who has decided to test the
boundaries to see how
he might deliberately test a teacher’s patience, whether to obtain peer
accolade or for
some other reason.
1 Bovaird v J [2008] NZCA 325, [2008] NZAR 667 at [60].
[39] This is, indeed, a special case. “A” is a student with
a significant disability which, at times, manifests itself
in behavioural
problems which include an inability to react when placed in a confrontational
position. How he should be handled
when placed in such a situation clearly
required skill. It was predictable, as Elizabeth Osborn’s email to the
year 9 Dean
has displayed. The need to have “A’s” position
very much to the forefront when making a decision to suspend is
an important
aspect of this case. In my view, it is unfortunate that more time was not
taken by the Principal before she made the
decision to suspend, because my
impression is that the short-time which was then allowed by the legislation for
the holding of the
Board meeting limited the ability to collect important facts
about “A’s” position and how to manage it. That should
have
been before the Board when it made its decision.
[40] However, that was not to be and a letter was issued by the Principal
on 5 July
2013 addressed to “A’s” mother. It recorded that the
Board of Trustees must meet to discuss the incident. It
recorded that meeting
would take place within 7 school days. It said that contact would be made to
confirm a date and time and that
a copy of the report to the Board would be made
available to her. It then advised that the mother and “A” could
attend
and could bring representatives or advocates to speak on
“A’s” behalf.
Board meeting
[41] The Board met on 11 July 2013. The Principal’s report, the
Dean’s report and the statements from the teachers,
to which I have
already referred, were provided to “A’s” parents and to
members of the Board in advance of the
meeting.
[42] The Chairman of the Board says the meeting was conducted in a relaxed atmosphere. There does not seem to have been a close examination of the particular incident. That, in the view of the Chairman of the Board, seemed to be because there was no disagreement about the actual facts that occurred. However, the matter needed to be put into context. “A’s” mother complains that she had prepared two handwritten documents which she wanted to read but did not get the opportunity to do so. In the first, she wished to make the point that there did not seem to be any premeditation or deliberateness on “A’s” part to hurt anybody. What happened was
exacerbated by the teacher’s pursuit of “A”. He became
worked up. It seems the concept of losing his skateboard
in his mother’s
words simply caused him to be more “het up”. She further wished to
make the point that “A’s”
actions seemed to be aimed at
getting away and were not deliberate actions that were designed to hurt
someone.
[43] The record of how the discussion proceeded at the Board is not precise. I mean no specific criticism of the Board Chairman and members for this because one recognises always that the process before the Board is not expected to be run along the lines and with the formalism of a court case. This was recognised by the Court
of Appeal in Bovaird v J.2
[44] The Board Chairman, summarised briefly the matters he said that were
taken into account before the Board reached its decision
as:
(a) The events which had unfolded on 5 July 2013, and “A’s” conduct
throughout these events as well as the conduct of others involved;
(b) “A” as an individual, including his traits and
characteristics which are unique to him. This included an
acute awareness and
consideration of the difficulties and behavioural challenges faced by
“A”;
(c) “A’s” past history since he started at Green Bay High School, in
order to view the incident and what had occurred in context;
(d) The level of intervention and assistance provided by the School to
date and how that assistance was likely to assist
“A”
moving forward;
(e) The ability to ensure a safe school environment with
“A’s” presence;
[45] The minutes of the Board meeting are brief. They record
that no new information was introduced at the meeting
and record as
follows:
Details:
I have decided to suspend “A” because of his refusal to follow
instructions, severely disrupting the learning of other
students, being verbally
abusive and threatening towards a staff member and for acting in a manner that
was likely to cause serious
harm to a staff member.
2 Bovaird v J, above n 1, at [53].
After considering all the material presented at the meeting, the points
raised in discussion and the options available to it, the
board of trustees
decided to:
Exclude “A” from school and require him to attend another school because
he is under 16 years of age.
The Principal will make contact with Ross Bailey, the Exclusion Project
Manager for Waitakere to make arrangements for his continued
education.
Reasons why this option was chosen:
“A” has a long history of complex behavioural and learning needs
requiring a significant level of support. The mainstream
setting does not
provide sufficient resourcing to ensure that “A’s” educational
needs are met AND ensure the safety
of other students and staff in the
school.
[46] In his affidavit, the chairman had earlier commented that
consideration was given to the three options. He described the
conclusion in
this way:
15. The Board was of the view that neither the first or second option
were appropriate, as the Board was unable to identify
suitable conditions that
were sufficient to mitigate the potential risk “A” posed in the
school. It was the Boards
view that the school was unable to continue
providing sufficient resources to meet “A’s” educational needs
while
at the same time ensuring the safety of other students and staff in the
school, as the only way to meet those needs would be to implement
full-time
supervision on a one-on-one basis, which was beyond the capabilities of the
school.
16. Given the lack of suitable conditions able to mitigate against the
risks associated with “A’s” presence
in the school, the Board
was of the view that the only option available in the circumstances was to
extend the suspension to exclude
“A” from Green Bay High
School.
This is a reference to the options set out in s 15(1) of the Education Act
1989, to which I shall make reference.
[47] There appears to have been a discussion on
“A’s” general behavioural problems which were caused
by his
disability and his special needs. “A” handed a written statement to
the Board chair. It does not comment directly
on the facts of the incident
itself. It offers an apology, which was understandable, for his
actions.
The Education Act 1989
[48] The right of a child to attend school in New Zealand is governed by
the
Education Act 1989. That Act prescribes the basis upon which a principal may
suspend a child and a board of trustees may exclude a student. I accordingly
refer to the relevant provisions of the Education Act
1989.
[49] Section 3 provides that every person who is not an international
student is entitled “to free enrolment and free education
at any State
school” where that person is between the ages of 5 and 19
years.
[50] Section 8(1) provides that, except as set out in Part 1 of the Act,
people who have education needs, whether because of disability
or otherwise have
the same rights to enrol and receive education at State schools as people who do
not. This provision does not
limit the effect of Part 2 of the Act which deals
with enrolments, suspensions, exclusions and expulsions.
[51] Section 9, which is part of Part 1 of the Act, requires the
Secretary, namely the Chief Executive of the Ministry, to agree
with the parents
of a person under 21 years of age, who should have special education, to enrol
such person at a particular State
school, special school, special class or
special clinic, or receive help from a special service.
[52] Part 2 deals with suspensions, expulsions and exclusions of
students. Sections 13 to 19 deal with standing down,
suspensions, exclusions and
expulsions.
[53] These sections were amended as from 12 July 1999 by s 7 of the
Education Amendment Act (No 2) 1998. The Court of Appeal
records the reasons
for the amendments as follows:3
[27] The reasons for the amendments made in 1999 is discussed in the
Report of the Education and Science Committee to the House
on the Bill which
became the Education Amendment Act 1999. That report refers to a concern that
students were being suspended or
expelled from schools too frequently, and
sometimes for relatively minor misbehaviour. There was also concern about the
unfairness
of the procedures followed by schools in some cases. On the other
hand, the Committee records that there has been a “sea change”
relating to the demands parents make on schools. Parents want and demand that
the learning of their children should not be compromised
by the
3 Bovaird v J, above n 1, at 675.
disturbing or disrupting of a class. This was seen as another reason for the
increase in suspensions and expulsions.
[54] Section 13, which is new, sets out the purpose of these provisions,
namely to:
(a) Provide a range of responses for cases of varying degrees
of seriousness; and
(b) Minimise the disruption to a student's attendance at
school and facilitate the return of the student to school
when that is
appropriate; and
(c) Ensure that individual cases are dealt with in accordance with the
principles of natural justice.
The Court of Appeal went on to say:4
[26] Underlying these purposes is the need for both the process
undertaken by a principal and/or board and the sanction
imposed on the student
(if any) to be tailored to the particular circumstances, rather than driven by
hard and fast rules.
[55] Section 14(1) sets out the grounds on which a student may be stood
down and suspended. It provides:
14 Principal may stand-down or suspend students
(1) The principal of a state school may stand-down or suspend a
student if satisfied on reasonable grounds that—
(a) The student's gross misconduct or continual disobedience is a
harmful or dangerous example to other students at the
school; or
(b) Because of the student's behaviour, it is likely that the
student, or other students at the school, will be seriously
harmed if the
student is not stood-down or suspended ...
[56] In her letter, the Principal referred to s 14(1)(b), but has said in her affidavit that was a mistake and that she intended to rely on s 14(1)(a). Accordingly, the inquiry must be whether the student’s conduct amounts to gross misconduct, and if so, to justify a suspension the conduct has to be considered to be harmful or a
dangerous example to other students.
4 At [26].
[57] Section 15 sets out the Board’s powers when a student younger
than 16 is
suspended. It may lift or extend the suspension for a reasonable period
or:
If the circumstances of the case justify the most serious response, exclude
the student from the school by extending the suspension
and requiring the
student to be enrolled at another school.
[58] Sections 15(2), (5) and (6) place obligations on the board to
facilitate the return of the student to school, or to arrange
for the student to
attend another school.
[59] Part 3 and, in particular, s 20 provides for the compulsory
enrolment in school until a person’s sixteenth
birthday for all persons
who are not international students.
[60] Section 18AA provides that the Secretary (the Chief
Executive of the Ministry) may make rules for regulating the
practice and
procedure to be followed by boards, principals, students, parents of students
and others, dealing with stand downs,
suspensions, exclusions and
expulsions.
[61] Rules were issued in 1999 in the exercise of the power given by s
18AA.
[62] Rule 7 sets out a number of principles which are a guide to the
participants in the section 14–18 process.
[63] Rule 14 provides:
A principal who has suspended a student must ensure that a report that
contains all information relevant to the suspension is written
for the
board.
[64] Rule 15 provides for information about the board meeting to be
provided to the parents in advance of the meeting.
[65] Rule 17(1) provides:
17 Board's decision
(1) Before deciding at a suspension meeting whether to lift or extend the suspension or exclude or expel the student, the Board must—
(a) Have due regard for each circumstance relevant to the suspension;
and
(b) Consider each statutory option available to it.
...
(4) The Board must record its decision, and the reasons for it, in
writing.
Judicial review
[66] The Principal’s decision to suspend and the Board’s
decision to exclude are both exercises of statutory powers
of decision. They
are susceptible to review by this court as to whether they are lawful, and as to
whether they were reached by
a fair process, and as to whether they were
reasonable.5
[67] This is not an appeal. The issue is whether the decisions
were lawful, reached by fair process and were reasonable.
If so, they are
valid. If not, they are invalid. In D v M and Board of Trustees of Auckland
Grammar School, Smellie J identified the applicable legal principles for
judicial review in these cases as:6
(a) The court does not substitute its view on the merits of the case.
The court is concerned with the correctness of
the decision-making
process;
(b) The court is required to determine whether the relevant statutory
law has been complied with;
(c) The Court must determine whether procedural fairness and the rules
of natural justice were observed in the decision-making
process;
(d) There is a subsidiary of the rules of natural justice that
decisions are to be made on correct
facts.
5 J v Bovaird [2007] NZAR 660 (HC) at [41].
6 D v M and Board of Trustees of Auckland Grammar School [2003] NZAR 726 (HC) at 731.
The issues that require resolution
[68] The issues that require resolution in this judgment, and bearing in
mind the approach that this court must adopt to a judicial
review application
are as follows:
(a) Did the Principal establish all of the relevant facts? Was there
a sufficient consideration of the individual circumstances
of “A”,
and therefore a proper assessment as to whether a suspension was
necessary?
(b) Likewise, did the Board of Trustees adequately inquire into whether
the Principal’s assessment of “A’s”
behaviour was
correct and whether, on a consideration of “A’s”
individual circumstances, justified in
terms of s 15(c) the most serious
response by excluding “A” from the school and requiring him to be
enrolled in another
school.
(c) Did “A’s” behaviour on 5 July 2013 amount to gross
misconduct?
Was it a harmful or dangerous example to other students of the
school?
[69] A subsidiary issue was raised, which was not the subject of detailed
submissions, but I nevertheless record it. It was whether
the decisions to
suspend and exclude “A” was discriminatory and in breach of s
56(1)(d) of the Human Rights Act 1993.
[70] I deal with the issues.
Were all the relevant facts considered?
[71] I have referred to Mr Judd’s submission that the Principal is entitled to take as long as she considers necessary to establish the full facts of the incident in question and, in particular, the full circumstances relating to the individual student before deciding whether or not to suspend.
[72] The Principal’s response was notification of a decision to
suspend on the day of the incident. It is understandable
that those involved
with “A” have questioned why the incident which occurred evoked such
an immediate response when a
more measured approach had been taken to
“A’s” involvement in an incident that occurred at the school
in February
and which resulted in a student losing a tooth.
[73] The incident does appear to have been escalated by the teacher
deciding to pursue “A” and requiring him to give
up his skateboard.
I have referred to the fact that this case involves a student with a disability.
The approach to handling his
behavioural issues had been recorded before the
incident and, in particular, was summarised in the Elisabeth Osborn email to the
year 9 Dean, to which I have made reference.
[74] “A’s” mother and the information that she sought
to place before the Board, but apparently did not, or
could not, advances a
matter that, in my view, should have been carefully considered. One must
always ask the question whether
when objectively considered, this incident
justified the most serious response the legislation provides for by the
Principal.
[75] Mr Judd submitted that had the Principal spoken to
“A’s” mother and to Elizabeth Osborn she would have
discovered that the support for “A” had been reduced. That inquiry
may well have led to ensuring that appropriate resources
to cope with
“A’s” problems were restored, rather than adopting the more
formal course of suspension leading to
exclusion. Although the Principal says
that she was aware of the meetings that had taken place to develop an individual
education
plan, the problem in this case was that the individual education plan
meeting seemed to focus on reducing the level of support.
[76] That leads me to the position that there was not a sufficient
investigation of the facts by the Principal before the decision
to suspend was
made.
[77] The problem is repeated when one examines the proceedings before the Board. In my view, it is unfortunate that because the suspension decision was made before those involved had time to fully review “A’s” position and the support he
required, the gap in the facts that were necessary to be before the Board to
make its decision, remained.
[78] I am satisfied that there was not sufficient examination of the
facts so that, in the first place, a decision to suspend
could be made and, in
the second place, a decision to exclude based on facts that justify the most
serious response in terms of s
15(1)(c) of the Education Act 1989 could be
made.
Did “A’s” conduct on 5 July 2013 amount to gross
misconduct which is a harmful or dangerous example to other
students?
[79] The Court of Appeal has endorsed the analysis of this question in
M and R v S and Board of Trustees of Palmerston North Boys’ High School
and D v M and Board of Trustees of Auckland Grammar School.7
Section 14 requires the principal to be satisfied on reasonable
grounds. The test is an objective one. The conduct to be analysed
is gross
misconduct. That is held to mean that it must be striking and reprehensible
before a child is suspended or excluded for
minor
misconduct.8
[80] McGechan J instanced examples such as the stabbing of a teacher or
other situations where a child was known to be of physical
danger to staff.
Likewise, where there is a serious and deliberate challenge to school authority
of an extreme type. The more
difficult situations recognised by the court were
the intermediate situations. Whether they amount to gross misconduct depends
upon all the circumstances prevailing at the time. Ultimately the question to
be asked is, is the misconduct striking and reprehensible
to a point where it
warrants removal from the school despite resulting individual damage.
[81] Due to my findings on the first two issues it is unnecessary to
consider this issue further in detail.
8 M and R v S and Board of Trustees of Palmerston North Boys’ High School, above n 7, at 712.
Conclusion
[82] My findings on the first two issues satisfies me that the applicant
is entitled to
the orders sought quashing both the Principal’s decision and the
Board’s decision.
[83] In arriving at this conclusion I express the hope that
“A’s” parents and the school continue to work cooperatively
to
ensure that this student can complete his education.
[84] Accordingly, there will be judgment in terms of the prayer for
relief making orders quashing the decision of the Principal
of the Green Bay
High School made in respect of “A” on 5 July 2013 and the decision
of the Board of Trustees of that
school, made in respect of the same student, on
11 July 2013.
Costs
[85] I reserve costs. I express the hope that counsel may well agree. If they are unable to agree within a period of four calendar weeks from the date of issue of this judgment memoranda in support, opposition and reply shall be filed and served at seven-day intervals. The memoranda shall then be referred to me for consideration
of the appropriate orders for
costs.
Faire J
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URL: http://www.nzlii.org/nz/cases/NZHC/2014/253.html