NAMBSE
EDUCATION CENTRE
SLIGO
APRIL 28TH 2010
Admission Policies/Section 29 Appeals
Codes of Behaviour/New Guidelines
Current Legal Issues
David Ruddy BL
Admission/Participation policies
Section 29 appeals

Education Act 1998

Section 15(2)(d)

“A Board shall publish an
admissions policy”
Requirements of Education Act

Agreement of patron

Equality

Rights of parents to send child to
the school of their choice
Education Welfare Act 2000
section 19
(1)Refusal must be in accordance
with the admissions policy
 (2)School entitled to be supplied
with all relevant information in
application form
 (3)BoM communicates decision
within 21 days

Refusing admission in exceptional
circumstances


The student has special needs such
that, even with additional resources
available from the DES, the school
cannot meet such needs and/or
provide the student with an
appropriate education
Student poses unacceptable risk to
other students/staff/school property
Section 29 Appeals
against BoM decisions

Expulsion

Suspensions for 20days or more

Refusal to enrol
Westmeath VEC v Sec General DES &
Section 29 Appeals Committee
High Court 2009


VEC school refuses enrolment for
a “transfer” application
Right of appeal committee to over
turn/rewrite admissions policy
St Mologas NS Balbriggan v Sec
General DES & Section 29 Appeals
Comm High Court 2009



Appeals Comm no rt to reverse
decision of BoM
Not a placement agency
Function to ensure refusal was in
accordance with valid enrolment policy
Scoil Mhuire Collcotts V Sec General
Des & Section 29 Appeals Committee
High Court 2009


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Mainstream and autistic unit
School full/waiting list
No 1 offered only place available
No 4 brings sec 29 appeal & wins
Offer withdrawn from no 1 who brings sec
29 appeal & wins
No 2 brings section 29 appeal & wins
School brings Judicial review/case
settled/Des approve additional resources
Lucan Educate Together NS v Sec
General DES & Section 29 Appeal
Committee High Court
Autism outreach unit
 Pre condition in admissions policy
 Section 29 appeal
 Holds against school-Admission
policy /in breach of recent
legislation
 Issue re-writing admissions policy

Glenageary Killiney NS V Sec General
DES & Sec 29 Appeals Comm 2009
School Full
 Non Church of Ireland family
challenged refusal to enrol
 Section 29 appeal favours parents
 School success in High Court
action

Mr&Mrs X v a Boys National
school Equality Authority 2009
Boys school & co educ autistic
unit
 School refuses to enrol non
autistic girl
 Action for discrimination fails

Codes of Behaviour/
The New Guidelines
2008



Section 23(3) Education Welfare
Act 2000
National Educational Welfare Board
(NEWB) obliged to publish
guidelines
Clarifies issues for schools
Implementing & Communicating the
Code of Behaviour



Teach pupils the rules
Publish the code in the pupil’s Diary/
journal
Parents requested to sign code as a
condition of registration
Murtagh v BOM of St. Emer’s Primary School
(High Court & Supreme Court) 1991

“ Discipline in a school is a matter
for the Teachers, Principal,
Chairperson of BoM, & the Board
itself; not a matter for the courts
whose function at most is to ensure
that the disciplinary complaint was
dealt with fairly”
Responsibility of Board of
Management (BOM)

Policy and procedures must be in
place for suspensions/expulsions

Pupils/parents aware of the policy

All staff aware of fair procedures
Sanctions

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Appropriate to age and development
stage of pupil
Should not impact disproportionately on
particular groupings i.e. members of
the travelling community, special needs
pupils and international pupils.
Importance of pupils’ understanding the
purpose of sanctions
Special Educational Needs Pupils

The code should be flexible enough to
allow for implementation of individual
behavioural management plans but, in
the case of gross misbehaviour or
repeated instances of serious
misbehaviour when the safety and duty
of care to others is at issue, the code
takes precedence.
Mrs A (on behalf of her son B v
A Boys National school
Equality Authority 2009
Parents of autistic boy fail to prove
discrimination by school in
relation to discipline
Applying sanctions to misbehaviour
outside school
Student A and Student B
V
A Dublin Secondary School
High Court 1999

must be a clear connection with
the school and a demonstrable
impact on it’s work before code of
behaviour applies
The period of suspension

Guidelines recommend the following
options/possibilities for BoM
•Principal - 3 days
•Principal - 5 days (approval of
Chairperson)
•BoM should put a ceiling of 10 days max
in relation to particularly serious incident
Grounds for suspension

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Proportionate response to behaviour that is
causing concern
Seriously detrimental effect on education of
other students
Threat to safety
One single incident of serious misbehaviour
may be grounds for suspension
Forms of suspension
Immediate suspension
 Automatic suspension
 Rolling suspension
 Informal or unacknowledged
suspension/voluntary withdrawal
 Open-ended suspension

Fair procedures based on the
principles of natural justice
(1) The right to be heard
 Rt to know what was alleged
misbehaviour
 Rt to respond
 If possibility of serious sanction, rt to
be heard by BoM
 Absence of bias
State
(Smullen & Smullen)
V
Duffy
1980 High Court
No right to legal representation at BoM
meetings
Principal breaches fairness of
procedures
M (a minor suing by his mother and next friend AM)
v
Principal and Board of governors of Good Shepherd
Primary School
High Court (Queen’s Bench Division) Belfast 2003
Expulsion



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Authority to expel should be
reserved for the BoM
This authority should not be
delegated
Seek assistance of support
agencies
Legal advice
Grounds for expulsion



Behaviour is persistent cause of
significant disruption to the learning of
others or to the teaching process
Continued presence of pupil constitutes
a real and significant threat to safety
Pupil responsible for serious damage to
property
Automatic/expulsion for first
offence

BoM can impose automatic expulsion
for certain prescribed behaviours
•Sexual assault
•Supplying illegal drugs to other
pupils in the school
•Actual violence or physical assault
•Serious threat of violence against
another pupil or member of staff
Expulsion
"The Shorts Case"
Timothy O Donovan
-VBOM of De la Salle College Wicklow
& (Section 29 Appeal Committee)
High Court Jan 2009
Judge Hedigan
School Discriminates against pupil
"The haircut case“
Mary Knott (on behalf of her son David
Knott)
V
Dunmore Community College
January 2009
Equality Officer Decision
Kirpan Case


Total ban on 12 yr old
boy wearing kirpan
The school violated an
individual’s freedom of
religion.
Supreme Court of
Canada
Mulvey (a minor) v Mc Donagh High
Court 2004
Adopted DES guidelines i.e.
bullying definition must be ;
 repeated
 ongoing
 sustained

Cross Referencing
The code of behaviour should not
be seen as a stand-alone
document
 Anti-bullying policy must be part
of code
 Health and safety statement
 Admission/enrolment policy

Time Frame


It is expected that the process of
audit and review will be
completed by September 2010
Principal’s role is to lead the audit
and review and ensure
implementation of the code
Separated parent challenges
School policy on p/t meetings
A
v
A Primary School
Equality Tribunal 2009
Male teacher fails in
discrimination case
James Martin Henderson

v
 Board of Management of Scoil
Iosagain


Equality Tribunal Decision 2009
Appropriate Dress for Communion
Christopher Carr
v
Gaelscoil Mhanister na Corran
Midelton Co Cork
Equality Tribunal 2009
Circular 60/99

Dismissal /suspension of
teachers/principal teachers
School Principal dismissed
Gertie Mc Nerney

v
 Bom of St.Patrick’s Primary
school
 Dromard,Moyne.co.Longford
 Employment Appeals Tribunal

2009

HSE
V Information
Commissioner

High Court 2008
HSE must disclose confidential
information given by teachers to
social workers