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R v The English Schools Foundation

Judgment Cited authorities 3 Cited in Precedent Map Related
Vincent
Judgment Date26 July 2004
Year2004
Judgement NumberHCAL61/2004
Subject MatterConstitutional and Administrative Law Proceedings
CourtHigh Court (Hong Kong)
HCAL000061/2004 R v. THE ENGLISH SCHOOLS FOUNDATION

HCAL000061/2004

HCAL 61/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO.61 OF 2004

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BETWEEN
R Applicant
AND
THE ENGLISH SCHOOLS FOUNDATION Respondent

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Coram: Hon Hartmann in Court

Date of Hearing: 19 July 2004

Date of Handing Down Judgment: 26 July 2004

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J U D G M E N T

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Introduction

1. This is an application for judicial review of a decision made on 15 April 2004 by the respondent, the English Schools Foundation ('the ESF'), to expel the applicant, whom I shall call R, from Kennedy School, a primary school operated by it, and to deny him a place at any other ESF school.

2. At the time of his expulsion, R was ten years old and was in Kennedy School's senior year. If not for the decision under challenge, R would have expected in the ordinary course of events to have graduated from Kennedy School and at the beginning of the new school year to have secured a place at an ESF secondary school.

3. The decision to expel R from Kennedy School was founded on a history of R's violent conduct and the perceived risk such conduct presented to other pupils.

4. This application gives rise to three issues. The first is whether the decision to expel R and to deny him a place at any ESF school was a decision subject to judicial review; that is, whether this Court has jurisdiction to determine the matter. The second issue is whether the decision was vitiated by procedural unfairness. The third issue is whether the decision was irrational in that, having regard to all relevant circumstances, it was not a decision open to a reasonable decision-maker.

Background

5. R began his schooling at Kennedy School in the most junior class (P1) in September 1998. It appears that he was always recognised as intellectually talented. In the 2000-2001 academic year, however, the staff of the school noted that he experienced difficulties in maintaining friendships with other children, these difficulties seeming to have their cause in a tendency towards outbursts of violence.

6. In the result, in the 2001 summer holidays R was examined by a psychologist. While the psychologist recognised what he described as R's 'social-relational difficulties', he did not believe they were the result of any formally recognised psychological condition. He was of the view that the difficulties sprang rather from the fact that R was a gifted child and tended towards an 'oppositional stance', being easily irritated and quick to lose his temper.

7. At the end of the 2001-2002 academic year, R's class teacher observed that R still found it difficult to build up friendships. The teacher noted :

" There were several worrying playground incidents over the year where R lost his temper with other children and was unable to control himself."

8. In the 2002-2003 academic year, R began weekly counselling sessions with the school nurse who possessed a master's degree in guidance and counselling. In an affidavit dated 9 July 2004, the nurse said that R could be 'a pleasant and polite boy'. However, she was of the opinion that R often had difficulty in accepting a viewpoint different to his own and had a strong sense of being in the right. It was often when his peers questioned his judgment or he questioned their's that matters escalated into an angry outburst.

9. In the following academic year (2002-2003), R's difficulties endured. His class teacher noted that R was 'verbally superior' to his peers and exercised this superiority, never conceding that he may be at fault. She recommended more intensive and specialised help than she believed the school was able to offer. In respect of R's tendency towards violence, she wrote :

"R had few friends ... and frequently encountered problems on the playground. These problems often took up a lot of class time. He frequently thumped others, snatched equipment from other children and was rude to his peers."

10. At about this time, it appears that R's parents arranged for their son to see a local psychologist in private practice.

11. In the 2003-2004 academic year, R's final year at the school, an attempt was made to assist R in the classroom by establishing a 'circle of friends' for him. This programme was put in place after R had been involved in a violent incident with another boy. The programme ran for several weeks and was believed to have materially boosted R's self esteem. However, on 5 March 2004 another violent incident took place. R was seen chasing another boy and had to be physically restrained by a teacher. As a result of this incident, it was determined that R should spend his school breaks with a member of staff rather than playing with other pupils.

12. At this juncture it should be noted that, in investigating the various incidents in which R was involved, the staff of the school found that R's conduct was invariably provoked by what R perceived to be insults or teasing. It was, however, R's disproportionate reaction to these insults or episodes of teasing that so concerned the staff of the school.

13. On 23 March 2004, matters came to a head. It appears that at the commencement of the morning break, R was on his way to spend the time with a teacher when he became engaged in a confrontation with another boy. R believed that the other boy, whom I will call E, was taunting or teasing him. When he was interviewed, R recollected the incident in the following terms :

" I came out of the classroom during break. E was standing outside classroom. He was with [other students]. As I walked past, E insulted me. E said 'Red as a raspberry' and I don't know what it meant. I am not sure why I got mad. I held him by the throat and E slumped to the ground. I thought he was joking and told him to get up."

14. A teacher who was called to the scene was alarmed by what she saw. In a statement made at the time, she said :

" I saw a boy lying on the floor. I bent down briefly to look at his face. I was shocked to see that his eyes were looking upwards and were not moving or focusing. Another boy who I knew to be R was standing near the boy and saying 'I'm sorry'. The boy on the floor was not moving and appeared to be in a state of shock or part consciousness."

15. Fortunately, E suffered no lasting hurt and was able to return to class that same morning. The school conducted an urgent investigation. R himself was not interviewed but statements were taken from E and other witnesses, both students and teachers.

16. The acting principal of Kennedy School consulted with the chairman of the School Council and sought the opinion of the Acting Chief Executive of the ESF, Mr John Bohan. In a file note, Mr Bohan recorded the following :

"After studying the witness statements and accompanying material, I concur with the Acting Principal of Kennedy School, the School Council Chairman and the School Improvement Officer (Primary) that R will, with regret, have to be excluded from Kennedy School. Furthermore, it will not be possible to admit him to another ESF school.

The anger outbursts are unpredictable but regular. He represents a considerable risk to other students. Some are afraid of him. ESF has a duty of care to the other students which must not be compromised. In view of this latest very serious incident R cannot be allowed to attend an ESF school."

17. On 26 March 2004, R's parents were informed of the decision to expel their son. The parents, however, insisted that such a decision could only be reached after full and fair procedures had been followed which included consulting with them and interviewing their son to obtain his version of events.

18. As a consequence, on 30 March 2004 a meeting took place at which most interested parties were present. These included R's parents, Mr Brohan, the Acting Principal of Kennedy School and the Chairman of the School Council. During the course of the meeting the parents were able to make extensive representations, detailing the history of their son's difficulties and expressing their concerns as to the manner in which the decision to expel him had been reached.

19. The meeting was tape-recorded. Transcript reveals that the meeting was concluded on the basis of the following undertakings given to R's parents :

(i) That the decision to expel R would be reviewed.

(ii) That the ESF educational psychologist would be consulted.

(iii) That R would be given the opportunity to put his side of the story.

(iv) That R's parents would have the opportunity to make representations.

(v) That, after listening to both R's parents and R, a final decision would then be made.

(vi) That a meeting would be held early the following term to enable R's parents to make their representations.

20. The meeting concluded with the Chairman of the School Council saying :

" We are very concerned about R and we want to understand what's led up to this, and we want to make an objective and fair risk assessment. And you must have the opportunity to explain everything to us properly, and you lad as well.

...

And we're looking forward to meeting with you as soon as ... Paul will coordinate the date. We will make the time and sit down together ..."

21. In the days that followed, R was interviewed (in the presence of his father), the educational psychologist submitted a written history and R's parents were able to submit written material.

22. A further meeting was held on 15 April 2004. This meeting was not tape-recorded. However, R's mother, I believe, was permitted to make notes. From those notes, it appears that, after some preliminary discussion focused on R's need...

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