NAA (by his litigation friend NAD) v An Independent Review Panel & Anor

Introduction

1. The case came before me as a rolled-up hearing for permission to bring judicial review proceedings and, if permission were given, the substantive proceedings.

2. The case is significant in that it concerns the interaction between protective mechanisms under the Modern Slavery Act 2015 (“the 2015 Act”) and the procedures which resulted in decisions to permanently exclude the Claimant from the school he attended.

3. The grounds of challenge have evolved – and in the Defendants’ submission are inadequately pleaded. I say more about that below. What is clear is that there is no longer any challenge to a decision by the Governing Body who were formerly the Second Defendant. It is common ground that their correct status is now as Interested Party. For ease of reference, I refer to the school concerned simply as “the school”. Structure of decision

4. The structure of this decision in this comprehensively argued case is as follows: Introduction1-3 Structure of decision4 Summary of facts 5-15 Issues the Court is invited to consider16 Human Trafficking – law17-30 2015 Act, s.52: Claimant’s submissions31-34 Second Defendant’s submissions35-38 Court’s consideration of submissions39-45 Art. 4 ECHR The existence of a duty46-47 Which alleged breaches are properly before the Court48-70 Individual breaches- Claimant’s submissions71-77 Individual breaches – Second Defendant’s submissions78-88 Individual breaches – Court’s consideration89-97 Challenge to decision of First Defendant (IRP) The facts98-104 Law and Guidance105-107 The decision letter108 Claimant’s submissions109-114 First Defendant’s submissions115-123 Court’s consideration124-130 Delay The law131 The First Defendant’s decision132-133 Breach of s.52134 Art. 4135-139 Alternative Remedy140-146 Senior Courts Act 1981 s.31(2A) – (3F) The law147 Defendants’ submissions148 Claimant’s submissions149-150 Court’s consideration of submissions151-154 Conclusion and relief155-160 Summary of facts

5. The Claimant (variously “N” and “NAA”) was born in 2007. He participates in the proceedings by his mother, his litigation friend. The incident which led to his exclusion occurred on or around 2 March 2022 and involved him, while a Year 10 pupil, selling drugs to another, younger, pupil (“Student X”) and then sending explicitly violent threats by text message and voicemail to that pupil when seeking payment.

6. On 18 January 2022, Daniel Cain-Read, Assistant Head Teacher and SENCO (Special Educational Needs Coordinator) of the Haringey Learning Partnership (“HLP”), which the Claimant was then attending on a one-month respite placement, made a referral to Haringey’s Multi-Agency Safeguarding Hub (“the MASH”). The referral to the MASH recorded teachers’ observations about N smoking cannabis and N’s mother’s evidence that previous attempts had been made to recruit N into “County lines” operations, but that she and the family had so far managed to thwart them. Mr Cain-Read sought community mentoring to support N, given the risk of child criminal exploitation (“CCE”).

7. On 24 January, the local authority conducted a CCE risk assessment, concluding that the Claimant was at high risk, corresponding to what was described as “Category 4 High Risk – RED RAG and level 4 of the HCYPS threshold guide.” The reference is to the Haringey Safeguarding Children’s Partnership (HSCP) Thresholds Guide (Long Version) v2 October 2019. Level 4 refers to a “child who has suffered, or is at risk of suffering, significant harm requiring intensive statutory/specialist support i.e. Children’s Social Care or Youth Offending Service”. The Guide goes on to address a range of types of concern. The difference between level 4 and level 3 — the next one down — can be illustrated by, for example, the rubric under “Gangs” where a level 3 indicator is “Child is involved in challenging behaviour and may be at risk of gang involvement” whereas level 4 refers to a “child…currently involved in persistent or serious criminal activity.”

8. On 28 January Mr Cain-Read followed up, requesting a discussion the following week and pointing out (among other things) that on dates (all of which post-dated his original referral) that: — N had been arrested after an alleged mugging; — N had “arrived at school smelling very strongly of cannabis and appeared to be under the influence. A search of the student revealed nothing, however, we believe [N] may [have] hidden cannabis on his person, as the smell became very strong throughout the day”; and — on 5.1.22 and 28.1.22, another student was seen giving N money. He concluded by saying that “We are incredibly concerned that [N] may be being groomed and may be grooming other vulnerable younger students.“

9. On 1 February 2022, Ms Geeta Patel, then N’s social worker, conducted an assessment under section 17 of the Children Act 1989. The Claimant did not co-operate and eventually walked out. The assessment records, among other things : “What are we worried about? — [N] may be being groomed by gang members … — [N] exposing himself to concerns of CCE What needs to happen? — Contact with [N’s mother] / Home visit — Contact with relevant professionals — Referral to exploitation Team Danger Statement: It is highly likely [N] will continue to be groomed, manipulated and exploited if he does not engage with services to prevent this.” A “scaling question” was answered with “5”.

10. Rubina Mazher, the local authority’s Head of Assessment and Safeguarding Services, explains in evidence that it is a 10 point scale. As to the exploitation team, she explains that it “holds multiagency local intelligence in relation to gang activities and expertise in mapping work. The purpose of referral to the exploitation team would be to contribute to the assessment of NAA's needs by providing information on issues relating to exploitation, grooming and gang activities.”

11. On 8 February, N returned to the school following the completion of the placement at HLP. On 2 March, the mother of Student X reported the index incident described at [5]. The school informed the HLP and Mr Cain-Read informed the police.

12. After having arrested and interviewed N, the police on 19 March 2022 completed a referral form to the National Referral Mechanism (“NRM”), the first step in the modern slavery mechanism. On 21 March the local authority was informed that the referral had been made. On 22 March the Single Competent Authority (“SCA”), responsible for NRM decisions under the 2015 Act, made a positive “Reasonable Grounds” decision i.e. reasonable grounds to conclude that the Claimant was a victim of modern slavery. The SCA notified the local authority that same day and by a series of emails between then and 16 June 2022 requested the local authority to provide further information. It appears that the notification and ensuing emails were not saved on N’s file by the social worker then handling the case (not Ms Patel) and were not responded to.

13. The outcome following the earlier referral to the MASH was a decision on 30 March 2022 to refer the case to the Youth Offending Service, as agreed with N’s mother.

14. On 1 April the Co-Headteachers of the school, referred to in this decision as “Headteacher A” and “Headteacher B”, issued a permanent exclusion with immediate effect. Following meetings on 9 and 23 June, the Governors’ Disciplinary Committee (“GDC”) declined to reinstate N. On 16 December 2022, following a hearing held on 22 November, an Independent Review Panel (“IRP”) declined to reinstate N.

15. On 13 March 2024, the SCA, having reconsidered an earlier negative Conclusive Grounds decision, made a positive Conclusive Grounds decision that N was a victim of modern slavery in the form of child criminal exploitation by way of forced drug dealing. Issues the Court is invited to consider

16. These proceedings concern: (a) a challenge to the decision by the IRP dated 16 December 2022 to uphold the decision that N be permanently excluded; and (b) a claim that the Second Defendant (hereafter “the local authority” or “Haringey”) breached section 52 of the Modern Slavery Act 2015 between 18 January 2022 (the referral to the MASH) and 21 March 2022 (when the local authority was informed of the referral the police had made to the SCA); and that the local authority owed a duty under art.4 ECHR, because of the matters giving rise to the alleged breach of s.52 and/or the Reasonable Grounds decision of 22 March 2022 and (though the local authority object to substantial parts of what follows, as will be seen below) breached that duty by any or all of the following respects: (i) failing to make a referral to the SCA; (ii) not referring the Claimant to its “exploitation team”; (iii) having identified (as the authority should have done) that there were reasonable grounds for concluding that N was the victim of CCE, failing to discuss the situation with the school; (iv) failing to register and act on the Reasonable Grounds decision when notified of it; (v) having failed to register the Reasonable Grounds decision, failing to factor it into the authority’s assessment and care planning processes; (vi) failing to notify the school about the SCA’s Reasonable Grounds decision; and (vii) failing to tell the Governing Body about the Reasonable Grounds decision. Human Trafficking — law

17. In December 2005 the member states of the Council of Europe agreed the Council of Europe Convention on Action against Trafficking in Human Beings (2005) (Cm 7465) “ECAT”. ECAT itself is an unincorporated international treaty. Article 4a provides a definition of trafficking as meaning: "the recruitment, transportation, transfer, harbouring or receipt of persons, by means of the threat or use of force or other forms of coercion, of abduction, of fraud, of deception, of the abuse of power or of a position of vulnerability or of the giving or receiving of payments or benefits to achieve the consent of a person having control over another person, for the purpose of exploitation. Exploitation shall include, as a minimum, the exploitation of the prostitution of others or other forms of sexual exploitation, forced labour or services, slavery or practices similar to slavery, servitude or the removal of organs."

18. As part of implementing ECAT in the UK, what is now known as the Single Competent Authority was created: it is a part of the Home Office.

19. Limited, though important, statutory provision is made by the 2015 Act. Section 49 authorises the issue of Guidance, which is how the UK gives effect to its ECAT obligations: we are concerned, in particular, with Modern Slavery: Statutory Guidance for England and Wales and Non-Statutory Guidance for Scotland and Northern Ireland, Version 2.8 (March 2022).

20. Section 52 creates a duty in the following terms: “1. If a public authority to which this section applies has reasonable grounds to believe that a person may be a victim of slavery or human trafficking it must notify— (a) the Secretary of State, or … The section applies to, among others, a London Borough Council: sub-section (5)(g).

21. At the time in question, the Act provided by s.56: “(1) For the purposes of this Act a person is a victim of slavery if he or she is a victim of— (a) conduct which constitutes an offence under section 1 …

22. Section 1 provided (and provides): “(1) A person commits an offence if— (a) the person holds another person in slavery or servitude and the circumstances are such that the person knows or ought to know that the other person is held in slavery or servitude, or (b) the person requires another person to perform forced or compulsory labour and the circumstances are such that the person knows or ought to know that the other person is being required to perform forced or compulsory labour. (2) In subsection (1) the references to holding a person in slavery or servitude or requiring a person to perform forced or compulsory labour are to be construed in accordance with Article 4 of the Human Rights Convention. (3) In determining whether a person is being held in slavery or servitude or required to perform forced or compulsory labour, regard may be had to all the circumstances. (4) For example, regard may be had— (a) to any of the person's personal circumstances (such as the person being a child, the person's family relationships, and any mental or physical illness) which may make the person more vulnerable than other persons; (b) to any work or services provided by the person, including work or services provided in circumstances which constitute exploitation within section 3(3) to (6). (5) The consent of a person (whether an adult or a child) to any of the acts alleged to constitute holding the person in slavery or servitude, or requiring the person to perform forced or compulsory labour, does not preclude a determination that the person is being held in slavery or servitude, or required to perform forced or compulsory labour.”

23. It is also important to note art.4 of the European Convention on Human Rights, which provides so far as relevant: “1. No one shall be held in slavery or servitude.

2. No one shall be required to perform forced or compulsory labour. …”

24. With that, I turn to the caselaw and in particular to R (TDT) v Secretary of State for the Home Department [2018] 1 WLR 4922. Underhill LJ referred to the decision of the European Court of Human Rights in Rantsev v Cyprus and Russia (2010) 51 EHRR 1.to explain the interaction between ECAT and art. 4 of the Convention: “14. Although that language is very general, the European Court of Human Rights has held that it imposes on member states certain positive obligations as regards trafficking. The leading case is Rantsev […]. In its judgment in that case the Court said, at para. 282: "There can be no doubt that trafficking threatens the human dignity and fundamental freedoms of its victims and cannot be considered compatible with a democratic society and the values expounded in the Convention.  In view of its obligation to interpret the Convention in light of present-day conditions, the Court considers it unnecessary to identify whether the treatment about which the applicant complains constitutes 'slavery', 'servitude' or 'forced and compulsory labour'. Instead, the Court concludes that trafficking itself, within the meaning of Article 3(a) of the Palermo Protocol and Article 4(a) of the Anti-Trafficking Convention, falls within the scope of Article 4 of the Convention." One consequence of that conclusion is of course that any obligations in relation to trafficking arising under article 4 are binding on public authorities as a matter of domestic law under section 6 of the Human Rights Act 1998.

15. At paras. 282-289 of its judgment the Court goes on to expound the obligations imposed by article 4 as it relates to trafficking. It begins, at para. 283, by pointing out that article 4, together with articles 2 and 3, "enshrines one of the basic values of the democratic societies making up the Council of Europe" and that, unlike most of the other articles, it is unqualified. At paras. 284-285 it says that although article 4 imposes an obligation to penalise those guilty of trafficking, that is only one aspect of member states' obligations, and it goes on, at paras. 286-288, to consider the extent of their other positive obligations. These read (so far as material): "286. As with Articles 2 and 3 of the Convention, Article 4 may, in certain circumstances, require a State to take operational measures to protect victims, or potential victims, of trafficking (see, mutatis mutandis, Osman, [(2000) 29 EHRR 245] § 115; and Mahmut Kaya v. Turkey, no. 22535/93, [2000] ECHR 129, § 115, ECHR 2000-III).  In order for a positive obligation to take operational measures to arise in the circumstances of a particular case, it must be demonstrated that the State authorities were aware, or ought to have been aware, of circumstances giving rise to a credible suspicion that an identified individual had been, or was at real and immediate risk of being, trafficked or exploited [emphasis supplied] within the meaning of Article 3(a) of the Palermo Protocol and Article 4(a) of the Anti-Trafficking Convention. In the case of an answer in the affirmative, there will be a violation of Article 4 of the Convention where the authorities fail to take appropriate measures within the scope of their powers to remove the individual from that situation or risk (see, mutatis mutandis, Osman, cited above, §§116 to 117; and Mahmut Kaya, cited above, §§ 115 to 116).

287. Bearing in mind the difficulties involved in policing modern societies and the operational choices which must be made in terms of priorities and resources, the obligation to take operational measures must, however, be interpreted in a way which does not impose an impossible or disproportionate burden on the authorities … . It is relevant to the consideration of the proportionality of any positive obligation arising in the present case that the Palermo Protocol, signed by both Cyprus and the Russian Federation in 2000, requires States to endeavour to provide for the physical safety of victims of trafficking while in their territories and to establish comprehensive policies and programmes to prevent and combat trafficking … . States are also required to provide relevant training for law enforcement and immigration officials … .

288. Like Articles 2 and 3, Article 4 also entails a procedural obligation to investigate situations of potential trafficking. The requirement to investigate does not depend on a complaint from the victim or next-of-kin: once the matter has come to the attention of the authorities they must act of their own motion (see, mutatis mutandis, Paul and Audrey Edwards v. the United Kingdom, no. 46477/99, § 69, [2002] ECHR 303, ECHR 2002-II… ." I have italicised the words "credible suspicion that an identified individual had been, or was at real or immediate risk of being trafficked" in para. 286 because their meaning and effect are central to the issue on this appeal.”

25. Underhill LJ went on to cite Chowdury v Greece CE:ECHR: 2017:0330JUD002188415 where the Strasbourg court had restated in slightly different form what it had said in Rantsev. He explained at [17], by reference to what the Court had said in Choudhury, that: “17. As is most clearly stated in that passage, the duties which the Court has held to be imposed by article 4 as regards human trafficking can be classified under three headings: (a) a general duty to implement measures to combat trafficking – "the systems duty"; (b) a duty to take steps to protect individual victims of trafficking – "the protection duty" (sometimes called "the operational duty"); (c) a duty to investigate situations of potential trafficking – "the investigation duty" (sometimes called "the procedural duty").

18. The present case is concerned with the protection duty. That duty is triggered, as we have seen from para. 286 of Rantsev, where it is "demonstrated that the State authorities were aware, or ought to have been aware, of circumstances giving rise to a credible suspicion that an identified individual had been, or was at real and immediate risk of being, trafficked". I will refer to this as "the credible suspicion threshold".”

26. How one should understand “credible suspicion” was addressed at [38]: “The Strasbourg phrase "credible suspicion" has a slightly odd ring, but the broad sense is clear enough. It corresponds, as I have said, to the concept of "reasonable grounds for suspicion" found in the Convention and the Guidance and represents a relatively low threshold. As Burnett LJ observed in para. 35 of his judgment in Hoang, quoted above, the Court "is drawing a distinction between mere allegations and those with sufficient foundation to call for an investigation" – or, here, to call for the taking of protective measures. Mr Buttler noted that in CN v United Kingdom (2013) 56 EHRR 24 the Strasbourg court regarded the credible suspicion threshold as having been crossed in a case where the putative victim's account of having been trafficked was "not inherently implausible" (see at para. 72 of the judgment).”

27. It is convenient here to consider the nature of the duty which arises under art.4. As seen above, Rantsev (in particular at para.286), indicates that the duties arising under arts. 2, 3 and 4 of the ECHR are conceptually similar. In Kurt v Austria (2022) 74 EHRR 6 the Grand Chamber of the European Court of Human Rights, considering an art.2 claim, explained that “the duty to take preventive operational measures under art.2 is an obligation of means, not of result.”

28. Where should the bar be set in relation to the s.52 duty? In both R (Hoang) v Secretary of State for the Home Department [2016] Imm AR 797 and TDT, the Defendant was the Secretary of State and so the cases did not address what is meant by “reasonable grounds to believe that a person may be a victim of slavery or human trafficking” within s.52. Both concerned whether the Secretary of State had been in breach of the duty under art.4 ECHR. Where the bar was set by Rantsev (as recorded in Choudhury) above) was plainly relevant to an art.4 case and, as a local authority is part of the State, would apply to it and would trigger (among other things) the investigative duty.

29. Construing s.52 in its context, it may be that the test should, if anything, be set somewhat lower. It is the SCA, not the local authority, that is the specialist decision maker tasked with discharging the UK’s obligations under ECAT of deciding whether a person may be, and subsequently is, a victim of trafficking, so as to trigger the various protections which follow. Just as for operational staff of, for instance, the Home Office, who may encounter people who may be victims of trafficking, there would seem to be an imperative for cases to be referred to the SCA as the specialist decision-maker. In relation to operational staff covered by the relevant circular, as Underhill LJ in TDT notes at [31], citing with approval the remarks of Burnett LJ in Hoang: “(1) At para 36 he drew a distinction between the threshold for the requirement on frontline staff to make a referral to the competent authority under the Guidance and the threshold that triggered the investigation duty under article

4. The former he described as very low . . . in reality, any suspicion or any claim, whereas the latter required credible suspicion that a person has been trafficked.” And at [34]: “I should at this stage note a point about the use of the phrase potential victim of trafficking. This can be found being used (and I will use it) to refer not only to someone who satisfies the relatively low threshold applicable at the stage of the reasonable grounds decision but also to someone at the earlier stage who has satisfied the very low threshold for referral by a first responder (what might be called a potential potential victim of trafficking). It is necessary to be alert to this possible ambiguity, but it should not usually give rise to any problem.”

30. No argument was put to me that the trigger for referral under s.52 was less than that which would trigger a duty under art.4: what was in dispute was whether the trigger point was reached on the evidence. Accordingly, I proceed to consider the issue of breach of s.52 on the art.4 test. Section 52 – Claimant’s submissions

31. Mr Buttler KC relies on the referral to the MASH, and the outcomes of the CCE and s.17 assessments (see [7] and [9] above.)

32. As to the last of these, Ms Mazher’s evidence includes a passage directed to the significance of Ms Patel’s remarks: “Ms Patel’s report states "Danger Statement: It is highly likely [NAA] will continue to be groomed, manipulated and exploited if he does not engage with services to prevent this". Notwithstanding the use of the word 'continued', I do not read Ms [Patel’s] report as making a positive factual finding that NAA was being groomed, manipulated and exploited, but instead understand her report as making an assessment of NAA's vulnerability to such influences based on the factors identified by Ms [Patel]. Whilst there were risk factors, that is a different thing from evidence of grooming, manipulation and exploitation. I read Ms [Patel’s] report as making determinations only on NAA's vulnerability for the following reasons. First, her report does not otherwise make or refer factual findings of grooming, manipulation and exploitation. Secondly, below the Danger Statement is a 'Scaling Question', which is a scale between 1 and 10 which identifies risk, with 10 being the highest. Ms Patel answered that question with '5', which does not suggest that she had made factual findings of grooming, manipulation and exploitation (else that number would be higher). Thirdly, the next steps identified by Ms Patel were aimed at information gathering, which again is inconsistent with the suggestion that she had made factual findings of grooming, manipulation and exploitation, as in such circumstances she would have recommended different next steps. The information gathered at that point led the case management team to consider progressing through a child and family assessment and not trigger a referral through the NRM. As I have explained, Ms Patel refers to risk factors and clearly requires further assessments to gather evidence of grooming or CCE.”

33. Mr Buttler KC objects that this is almost entirely opinion evidence and is not permitted by CPR 35; that it is not informed by any expertise or experience on the part of Ms Mazher; that the Court can decide for itself how Ms Patel’s witness statement should be read and that no weight should be given to Ms Mazher’s statement in this regard; that it ignores the plain wording of Ms Patel’s statement; and that Ms Mazher is factually wrong in suggesting that the next step would be to gather information – Ms Patel had said the case should be referred the exploitation team.

34. He accepts that to succeed on this ground he has to establish that the failure to notify was irrational; nonetheless, he submits that for the above reasons, it was. Section 52 – Second Defendant’s submissions

35. Mr Oldham KC resists the claim first on the ground that it is academic (in that the police had subsequently referred the matter to the SCA). As regards irrationality, the Court should not be influenced by the conclusion subsequently reached by the SCA.

36. Mr Oldham KC put forward a submission as to the level of certainty required under s.52 by reference to para 9.35 of the Modern Slavery Guidance but subsequently indicated it was not pursued.

37. Mr Oldham KC defends the admissibility of, and weight to be given to, Ms Mazher’s evidence on the basis that this is not about the admittedly unacceptable practice of substituting reasons; that the case is not only about judicial review for alleged breach of s.52, but about an art.4 claim as well, where the defendant is not limited to evidence from the decision maker. The evidence would be “manifestly” admissible under s.31 of the Senior Courts Act to show what the outcome “highly likely” would have been. Ms Mazher is professionally qualified and able to comment on documents which relate to professional social work. It would be odd for the local authority, unable to provide evidence from Ms Patel, to have filed no evidence. There is no reason for the Court not to accord weight to Ms Mazher’s evidence.

38. Mr Oldham KC’s case is in summary that Haringey was busy gathering further information. While there were occasional obstacles when N’s mother did not agree with the authority’s intended course of action, the case at no point dropped into a void. There was no irrationality in seeking to obtain more evidence and not referring meanwhile. In support of this, he points to how the MASH assessment led to deciding a Children and Families assessment was needed. The evidence was not unequivocal as to the scaling of N’s presentation: the MASH Team Manager on 26 January had assessed it as amber rather than red and a box had been ticked for “Not CCE related”. The significance of the assessment by Ms Patel was indicated by Ms Mazher in the extract from her witness statement quoted above. The evidence showed there was management supervision in February and the social workers being persistent. Section 52 -Court’s consideration of submissions

39. As will be seen below, I consider that the claim was filed too late insofar as it relates to s.52 and I am refusing permission on that basis. Had it fallen for decision, however, I should have concluded that Haringey was in breach of s.52. Its duty, acting rationally in the legal sense, was to decide upon whether it had “reasonable grounds to believe that a person may be a victim of slavery or human trafficking”. That involved distinguishing between “mere allegations and those with sufficient foundation to call for an investigation.” I note that the wording is “may be”, not “is”. In the present case, the authority had the evidence of Mr Cain-Read, a senior practitioner in a unit designed to help pupils facing difficulties, which provided evidence of a number of concerns, any or all of which could be linked to the possibility of CCE, and followed up by him indicating the strength of his concern as well as providing detail of further concerning events.

40. It had the CCE assessment concluding that N was at “high risk” of CCE. The details of how that assessment was carried out and scored are not in evidence. There may be a degree of ambiguity in whether it implies that N was at high risk of being a victim of CCE or of becoming a victim of CCE but, in the light of the statutory wording, I do not consider that is material.

41. It had Ms Patel’s assessment. Apart from the useful factual information provided by Ms Mazher that the situation was scaled 5 on what is a 10 point scale, I can read Ms Patel’s evidence for myself. I do not need to rule on whether Ms Mazher’s evidence in relation to Ms Patel’s statement is strictly admissible, as I place minimal weight on that part of it. Even if Ms Patel was not making factual findings that “grooming, manipulation and exploitation” had occurred, she was clearly extremely worried about the possibility, reflected in the “Red-Level 4 rating”.

42. The case is different from R(CM) v Independent Review Panel of PQR and others [2025] EWHC 1414 (Admin). That case concerned an exclusion which was liable to lead to an enhanced risk of exposure to CCE, whereas the present case concerns indications of possible CCE even before the incident which eventually resulted in permanent exclusion.

43. Haringey had a number of duties towards N as part of its children’s social care functions, distinct from any duty it may have had under s.52 of the 2015 Act, but the fact that it was doing what it considered appropriate in the discharge of those other duties does not provide an answer to the claim that it was in breach of s.52. Section 52 is concerned with possibility, not with fact-finding on the balance of probability. Even a Reasonable Grounds decision by the SCA does not require that degree of certainty. Here there was considerable circumstantial evidence that N might have been a victim of CCE. The authority’s mistake, on the basis on which its case is now put, was to conclude that it did not need to make the referral under s.52 because it was getting on with its own inquiries. That deprived the SCA, as the specialist decision-maker, of the opportunity to give timely consideration to whether N was the victim of CCE and was a legally irrational approach to complying with the statutory duty imposed upon it.

44. I do not accept Mr Oldham KC’s submission that the issue is academic. I have reached the above conclusion without regard to the outcome of the subsequent Reasonable Grounds and Conclusive Grounds decisions reached by the SCA. I have however taken into account the speed with which the SCA reached a Reasonable Grounds decision. When notified by the police, it made that decision in 3 days. Had Haringey made the referral shortly after Ms Patel had carried out her assessment, the chances are that, by the time of the index incident on 2 March, the SCA would have reached a decision. Whether or not it would have been the same decision on the basis of evidence from the local authority alone as was reached on evidence from the police alone, one cannot say, but it certainly may have been and that is enough to conclude that the question of whether a referral should have been made earlier, by the local authority, is not academic.

45. It follows that, subject to questions of delay, alternative remedy and s.31(3C)-(3F) of the Senior Courts Act 1981 (all of which have been put in issue by the local authority), that if permission had been given on this ground, I would have held that the local authority was in breach of s.52. Art. 4 ECHR – the existence of a duty

46. For the same reasons and on the basis of the same evidence as would have led me to conclude that there was a breach of s.52, duties under art.4 were potentially triggered.

47. If I were to be wrong in that conclusion, duties under art.4 were still triggered once on 22 March 2022 the SCA notified Haringey of the positive Reasonable Grounds decision. It is a surprising and concerning aspect of this case that until about 4 weeks before the hearing, Haringey was denying ever having received that notification from the SCA or any of the numerous follow-up emails sent by the SCA seeking further information. However, it is now accepted that they were received. Art. 4 – which breaches are properly before the Court

48. The dispute between the parties as to what alleged breaches of the art.4 duty, if any, are properly before this court regrettably necessitates a lengthy procedural diversion. It is set against the background of the well-known remarks of Singh LJ in R (Talpada) v Secretary of State for the Home Department [2018] EWCA Civ 841 where he observed: “67. I turn finally to the question of procedural rigour in public law litigation. In my view, it cannot be emphasised enough that public law litigation must be conducted with an appropriate degree of procedural rigour. I recognise that public law litigation cannot necessarily be regarded in the same way as ordinary civil litigation between private parties. This is because it is not only the private interests of the parties which are involved. There is clearly an important public interest which must not be overlooked or undermined. In particular procedure must not become the master of substance where, for example, an abuse of power needs to be corrected by the court. However, both fairness and the orderly management of litigation require that there must be an appropriate degree of formality and predictability in the conduct of public law litigation as in other forms of civil litigation.

68. In the context of an appeal such as this it is important that the grounds of appeal should be clearly and succinctly set out. It is also important that only those grounds of appeal for which permission has been granted by this Court are then pursued at an appeal. The Courts frequently observe, as did appear to happen in the present case, that grounds of challenge have a habit of "evolving" during the course of proceedings, for example when a final skeleton argument comes to be drafted. This will in practice be many months after the formal close of pleadings and after evidence has been filed.

69. These unfortunate trends must be resisted and should be discouraged by the courts, using whatever powers they have to impose procedural rigour in public law proceedings. Courts should be prepared to take robust decisions and not permit grounds to be advanced if they have not been properly pleaded or where permission has not been granted to raise them. Otherwise, there is a risk that there will be unfairness, not only to the other party to the case, but potentially to the wider public interest, which is an important facet of public law litigation.”

49. The need for procedural rigour figures prominently in the Administrative Court Judicial Review Guide 2024 (at Chapter 2).

50. In relation to alleged breaches of art.4, the Claimant’s case against the local authority was pleaded in the Statement of Facts and Grounds of 16 March 2023 as follows (the school was at that point a Defendant rather than an Interested Party, hence the references to three Defendants). “The Defendants breached the Art 4 protection duty by failing to take all reasonable steps to protect the Claimant from further trafficking. The duty was owed by all three Defendants, as the relevant ‘state authorities’. Each of the three Defendants knew or ought to have known of a credible suspicion of trafficking. The credible suspicion was established by the safeguarding concerns raised by both the Claimant’s mother and HLP and underscored by the [Reasonable Grounds] decision. School is a strong protective factor against a range of harms. By removing that protective factor from the Claimant without assessment of how else he could reasonably be protected from re-trafficking, all three Defendants breached the Art 4 protection duty.”

51. The claim had been stayed pending reconsideration by the SCA of its earlier negative Conclusive Grounds decision. Once that reconsideration had been completed, holding that Conclusive Grounds did exist, the court directed that a list of issues be provided. That document, dated 27 March 2024, makes no reference to the breaches of art.4 for which Mr Buttler KC now contends.

52. On 3 March 2025, the Claimant’s solicitors wrote, unbidden but stating that it was in response to a suggestion in the Summary Grounds of Defence that certain grounds, including Ground 5 (breach of art.4), had not been properly pleaded and was written “to narrow the issues”. The only reference to the local authority’s obligations under art.4 was at para.16 where it was stated that the authority failed to make an NRM referral or initiate a s.47 CA 1989 investigation/take any safeguarding action and failed to provide information to the SCA despite four separate requests.

53. On 4 March the authority’s solicitors responded, suggesting that the letter of 3 March was not in fact narrowing the issues, but rather was seeking to expand them through correspondence in a way which was inappropriate and inconsistent with what had been said in Talpada.

54. The only application for permission to amend the pleadings was made on 27 March 2024 at the same time as the list of issues referred to above was produced. The proposed amendments were directed to clarify the decisions in dispute and to seeking certain extensions of time. The application was not decided upon and I consider it at a later stage in this judgment. It can be said, though, that it did not involve any attempt to introduce further breaches of art.4 on the part of the local authority nor to particularise anything that had previously been said in more general terms in that regard.

55. To recap, the seven matters on which Mr Buttler KC sought to rely as constituting breaches of art.4 are: (i) failing to make a referral to the SCA; (ii) not referring the Claimant to its “exploitation team”; (iii) having identified (as the authority should have done) that there were reasonable grounds for concluding that N was the victim of CCE, failing to discuss the situation with the school; (iv) failing to register and act on the SCA’s Reasonable Grounds decision when notified to it; (v) having failed to register the Reasonable Grounds decision, failing to factor it into the authority’s assessment and care planning processes; (vi) failing to notify the school about the SCA’s Reasonable Grounds decision; and (vii) failing to tell the Governing Body about the Reasonable Grounds decision.

56. Mr Oldham KC complains that even on the day of the hearing, the Claimant’s case in respect of breaches of art.4 was continuing to shift. His complaint was justified: the Claimant had served a list of issues, one clear working day before the hearing, in which only items (ii), (v) and (vi) from the list above featured. Conversely, a further alleged breach was referred to in the list of issues (which had been mentioned in the Claimant’s skeleton argument but not in the Statement of Facts and Grounds) namely: (viii) failing to provide the Claimant with counselling and information as regards his legal rights and the services available to him, as required by art.12 of ECAT.

57. Mr Oldham KC submits that strictly speaking, none of the alleged breaches of art. 4 relied upon should be entertained. He expressed his pleading point by reference to the grounds as numbered in the Claimant’s list of issues, but I take them as applying a fortiori to those introduced subsequent to when that list was served. I therefore refer to the numbering I have used above rather than to that in the list of issues.

58. Mr Oldham KC indicated that notwithstanding claimed deficiencies in how it was pleaded, he did not take a pleading point about what I have numbered (vi) on the basis that failure to notify the school about the Reasonable Grounds decision did form part of the facts in the Statement of Facts and Grounds and is moreover linked to the s.52 ground. Although not said expressly, it appears that that concession extended to matters concerning the authority’s dealings with the school more generally, thus issues (iii) and (vii) also. It was so interpreted by Mr Buttler KC in reply, without demur from Mr Oldham KC.

59. As to the remainder, he refers to paras 7.3.1.1 and 7.3.1.2 of the Administrative Court Guide, indicating that what is required is “a statement of the facts relied on” and “a clear and concise statement of the grounds for bringing the claim”. He submits that para 72 of the Statement of Facts and Grounds (quoted at [50] above) does not do this in relation to the Claimant’s case as now put; indeed, by addressing exclusion and observing that “school is a strong protective factor” it makes clear that exclusion is the target and points away from non-school related issues.

60. Mr Oldham KC complains that (ii) and (v) were raised the day before the hearing commenced and (viii) during the previous week. He criticises (v) as being vague, broad and unclear. Had a timely application to amend been made, it may be that the authority could have submitted evidence, for instance about the exploitation team.

61. As regards what was pleaded in para 72, he notes that no point has been taken before me regarding s.47 of the Children Act 1989.

62. Mr Buttler KC’s response is to note that what the Guide requires is a “concise” statement of grounds. Talpada at [68] notes that the Grounds should be clearly and succinctly set out and that is what in his submission was provided to theauthority i.e. the authority owed a duty, the authority breached that duty by failing to take all reasonable steps. The authority had taken no steps to strike out for lack of clarity. Talpada indicates that procedure must not become the master of substance. Contrary to what was being suggested on behalf of the authority, it had had a fair chance to address the issue of the “exploitation team”: Ms Mazher had done so in para 8 of her witness statement dated 21 March 2025.

63. Mr Buttler KC submits that the local authority was asked to provide N’s file and refused to do so in its pre-action response. No disclosure was provided with the Summary Grounds of Defence or at any time until 21 March 2025. He cites the guidance given by Fordham J in R (Police Superintendents’ Association) v Police Remuneration Review Body and Secretary of State for the Home Department [2023] EWHC 1838 (Admin): “If documents matter, they should be provided. If they matter prior to or at the permission stage, that is when they should be provided”. Thus, he submits, the Claimant cannot be blamed for not pleading the alleged breaches of art.4 in more detail prior to his skeleton argument.

64. For the reasons in the following paragraphs, I consider that, save as regards the local authority’s (lack of) dealings with the school/governing body (as to which Mr Oldham KC does not take the point) the case was not adequately pleaded and accordingly I refuse permission for judicial review in relation to the alleged breaches numbered (i), (ii), (iv) (v) and (viii) above.

65. Paragraph 72 of the Statement of Facts and Grounds was intended to have an application in relation to all three Defendants (as there originally were). What the local authority, the school and the IRP had in common were issues relating to N’s schooling. Neither the school nor the IRP had any responsibility, for instance, for deciding whether N should be referred to the authority’s exploitation team or for conducting an assessment of N’s care needs. When para 72 begins by reciting the breach of a duty it is already implicit, by reason of its application to all three original Defendants without distinction, that it is concerned with school-related issues. That is then fortified when the paragraph goes on to reference how “school is a strong protective factor against a range of harms”. What is complained of (still in relation to all three Defendants) is then removing that protective factor without assessment of how else N could reasonably be protected from re-trafficking.

66. In my judgment, Mr Oldham KC is correct in adopting the position that the pleaded case regarding breach of art.4 concerned school-related matters only.

67. Mr Buttler KC draws attention to the lateness with which the Claimant had access to N’s social services records. However, when they were served, with the Detailed Grounds of Defence, there was nothing to stop the Claimant’s advisers from making an application to amend their grounds. Indeed, the authority’s response dated 4 March 2025 had drawn attention to the drift in the grounds being advanced. Nor is it the case that time would have been too short to apply to amend but for the hearing dates to be preserved. If I am wrong in that, the authority had sought a postponement of the hearing, but the Claimant had opposed it. While the case, long-running as it had previously been stayed, needed to proceed without avoidable delay, there was no suggestion of current urgency – N did not wish to return to the school, nor following the permanent exclusion had he been without education.

68. Nor in my judgement does it avail Mr Buttler KC to submit that the Defendants could have made an application to strike out the relevant part of the pleadings for lack of clarity. It was for the Claimant’s advisers to set out his case to the extent required. Further, it was not that para 72 was lacking in precision to an extent that it could not be understood. It could be understood, but what it said does not go as far as it would need to if it were to provide a basis for the case now put forward on the Claimant’s behalf. Even at the hearing, no application to amend was made.

69. An appeal to substance rather than procedure may be superficially attractive, but lack of procedural rigour may contribute to substantive unfairness and not be in the public interest, as Talpada notes.

70. I therefore proceed to consider the issue of breach of art.4 solely in relation to points (iii), (vi) and (vii). Individual breaches – Claimant’s submissions

71. The case for N is that if, as it should have done, the local authority had identified from the material before it in late January or early February that there were reasonable grounds to conclude that N was the victim of CCE, it should have notified the school. Headteacher A’s evidence is that CCE was not mentioned at the meeting held when N was returning from the placement at HLP and that, had it been mentioned, the school would have conducted a risk assessment. While it is not possible to say what the outcome of that process would have been, it is at least possible that the index incident might have been avoided.

72. Mr Buttler KC relies on R(CSM) v Secretary of State for the Home Department [2021] EWHC 2175 (Admin). The case concerned the failure, for a short period, to provide antiretroviral medication to a person who needed it because of their HIV status. In the context of an art.3 claim, it was held that the operational (a.k.a. protective) duty arose. Bourne J held at [108] that a claimant did not need to show that breach of the duty resulted in actual harm. However (at [109]), it was necessary to show a material breach. The “reasonable steps” means that not every shortcoming will be sufficiently serious to infringe art.

3. Thus, submits Mr Buttler KC, the breach relied upon must be capable in principle of having made a difference to the victim, even if it did not in fact do so.

73. Headteacher A’s evidence is that despite numerous attempts by the school to make enquiries, it did not consider that a distinct risk of CCE existed. Concerns had been raised by N’s mother, but she had failed to provide details to enable the matter to be followed up and so the school did not consider there was evidence to show that N was a victim of CCE. Further, around the time of the exclusion, the school had considered the possibility of a “managed move” to another school, but had been unable to find an alternative school which would take N.

74. Mr Buttler KC refers to the School Exclusion Guidance Exclusions from maintained schools, academies and pupil referral units in England – Department for Education, September 2017. Paras 18 and 19 provide statutory guidance on factors a headteacher should take into account before taking the decision to exclude, referring to contributing factors after there has been an incident of poor behaviour, such as poor mental health and being the victim of bullying, and Mr Buttler KC submits it is thoroughly consistent with this approach to treat as a relevant consideration that a pupil’s poor behaviour has been under compulsion from traffickers.

75. The existence of the Reasonable Grounds determination, had it been known about, was material to the school’s assessment of the risk of CCE and potentially to the managed move discussions as a different school might have taken a different view in the light of the determination.

76. Headteacher A’s evidence was that “Even if the School had seen evidence of CCE concerns, in my view we would have reached the same conclusion that a permanent exclusion was a proportionate and rational response to NAA's actions and the threat he posed to another student.” Mr Buttler KC criticises this as being based on hindsight and self-serving and suggests that Headteacher A’s witness statement is “heavily lawyered”. Further, a Reasonable Grounds decision is more than “evidence of concerns” – it is a determination by the responsible State agency – and Headteacher A does not address what the school would have made of it on that basis. He also draws attention to the lack of evidence of what Headteacher B, the co-headteacher, thinks.

77. A representative of the local authority was present at the GDC meetings. It is not suggested that she did mention the Reasonable Grounds determination. The school’s case to the GDC had referred to “parental concerns” that N was at risk of CCE. N’s parent’s case included that N had been exposed to CCE and the school had not dealt with it adequately. The GDC had made no findings on the issue and it was clear from the evidence of the Chair of the GDC (“Mr M”) to the IRP that the GDC had considered there had been “uncorroborated allegations from the parents” and no evidence of CCE. Accordingly, in Mr Buttler KC’s submission, the Reasonable Grounds determination had not been taken into account and, for the reasons above, might have made a difference. Individual breaches – 2nd Defendant’s submissions

78. Mr Oldham KC makes two general and overarching points. As to the first, the question is whether the State has failed in its art.4 duties; in the present case, the exclusion did not deprive N of education. He refers to the duties under Education Act 1996, s.19, the Education and Inspections Act 2006, s.100 and the Education (Provision of Full-Time Education for Excluded Pupils) (England) Regulations 2007 (SI 2007/1870). Ms Mazher’s evidence sets out in detail the considerable efforts made by the local authority to secure alternative education for N after his exclusion, which appear to have foundered on differences of view with N’s mother as to the type of provision that was appropriate, the non-availability of what she was seeking due to concerns of the institutions concerned that it would be incompatible with the education of other pupils, and N’s poor mental health. (No criticism is made of those efforts and I need not set them out here). Mr Oldham KC relies on A v Head Teacher and Governors of Lord Grey School [2006] 2 AC 363 (in particular Lord Bingham’s remarks at [24] and [25] with which the majority agreed) as showing that it is provision by the State (as a whole) which is relevant. The case concerns art. 2 of Protocol 1 which, as it concerns education, should be treated as a lex specialis and take precedence over art.4 in this context. Mr Oldham KC notes that in R(RWU) v Governing Body of A Academy the equivalent submission was not made by the defence, either before Fordham J ([2024] EWHC 2828 (Admin)) or in the Court of Appeal ([2025] EWCA Civ 147) but neither decision is incompatible with his submission in the present case.

79. His second general point is that as there is no longer any claim that the exclusion itself breaches art.4, it follows that not conveying the information cannot be in breach of art.4 either.

80. I can address these fairly shortly. Art.4 is about protection from forced labour, slavery and so on. Education in this case provides the context in which those issues have arisen. In the Lord Grey case, by contrast, art.2 of protocol 1 was the only article in issue. I do not accept that A2 P1 is a lex specialis in the sense that it must prevail over the obligations imposed by other articles, merely because education is involved.

81. Nor can I agree with Mr Oldham KC’s second general point. The reason why his submission does not provide an answer is that had the information been provided, it might have led to more nuanced consideration of alternatives to exclusion, so that exclusion might never have arisen.

82. I turn accordingly to his submissions on the three claimed breaches of art.4 which I have permitted to proceed.

83. Mr Oldham KC reminds me of the Rantsev test — that art.4 “must not impose an impossible or disproportionate burden on authorities” — and encourages me to bear in mind (as of course I do) “the distance of the court from the coalface”. He further reminds me that the claim is against the local authority, a single body corporate, and submits that I should take into account the totality of the evidence about education and social services provision, in contrast to the approach for the Claimant, which he characterises as one of “salami-slicing”.

84. He submits that it was not disproportionate to fail to inform the school. The school had been aware of the concerns in substance and, he submits, relying on a social work attendance note dated 28 January 2022, that the local authority knew that the school knew. Much of the paperwork concerned with the exclusion and the GDC concerned CCE, thus the school and GDC were aware of the substance of the Reasonable Grounds determination. That determination was in very general terms, especially when compared with the detail of the Conclusive Grounds decision. The school itself had been in contact with the police so the local authority’s failure to notify the school was not disproportionate. The SCA is not referred to in Guidance issued under the Education Acts and the SCA is not central to how school discipline is meant to work.

85. Breach of Convention rights is a substantive issue, citing R (Begum) v Denbigh High School [2007] 1 AC 100; in the present case there was no breach even if the authority had been at fault in not passing on the information.

86. Mr Oldham KC further submitted that N was not a “victim” for the purposes of claiming a breach of human rights. He cited the test in Lizarraga v Spain (2007) 45 EHRR 45 which requires (at [35]) that there must be “a sufficiently direct link between the applicant and the harm which they consider they have sustained on account of the alleged violation.” Such a link is missing in this case, because in an exclusion case only the decision of the IRP can be challenged in judicial review: see R (DR) v Headteacher of S GB [2002] EWCA Civ 1822 and R (CR) v Independent Review Panel of London Borough of Lambeth [2014] EWHC 2461 (Admin). In this case, the IRP had known about the Reasonable Grounds determination. As to earlier stages, the claim that N was a victim of CCE had been ventilated before the school and GDC who had accordingly considered the substance of the Reasonable Grounds determination. Further, the decision maker(s) were not bound by the Reasonable Grounds determination.

87. As to CSM, para 100 is based on agreement rather than decided upon. Applying the test at [109] requires looking at how serious the claimed infringement is. At [110] the judge looks at whether the failure to supply HIV medicine was dangerous for the claimant. In the present case, if one looks at the impact of the Reasonable Grounds decision and the entirety of the provision made for N, the failure was insufficiently serious.

88. Kurt v Austria, relied upon by Mr Buttler KC, concerned the right to life under art.2, where it may not be necessary to show harm. The case says nothing about victimhood. Consideration of submissions on individual breaches

89. I am unable to accept this part of Mr Oldham KC’s submissions. It cannot have been either disproportionate or impossible to have notified the school either of the concerns which existed in late January/early February 2022, or to have notified the school or the GDC of the Reasonable Grounds decision once that had been notified to the local authority on 22 March 2022 — a simple letter, email or phone call would have sufficed. The social services record of 28 January 2022, relied upon by Mr Oldham KC, does not evidence that the school knew of the concerns – it records messages from Mr Cain-Read (not the Deputy Head of the school but of the HLP) and, as noted above, Headteacher A’s evidence was that the concerns were not mentioned at the meeting at the end of N’s respite placement either.

90. The issue for me is whether it was a reasonable step (as understood in the light of Rantsev) to notify initially the school and subsequently the GDC. I am not intending to express any criticism of other actions taken by Haringey; it seems to me that the totality of what was otherwise done in the exercise of their education and children’s social care functions is simply immaterial to the question I have to decide.

91. The Reasonable Grounds decision was indeed expressed in general terms, but to downplay its importance for that reason is to ignore the position of the SCA as the central, specialist decision-maker, who may be assumed to be able to bring to bear the experience gained from making large numbers of such determinations in order to identify those allegations for which reasonable grounds exist and those for which they do not. That the school had been in contact with the police after the index incident cannot justify any failure by the local authority to notify the school before it. Nor is it an answer in respect of the failure to notify the Reasonable Grounds decision, as we do not know what information the police provided to the school nor in any event is such contact a substitute for the validation provided by the Reasonable Grounds determination.

92. I do not agree with Mr Oldham KC that para 100 of CSM is to be understood as based on agreement rather than decided upon. Bourne J goes on in the remainder of that paragraph to indicate why the approach in the paragraph is correct in the light of authority.

93. I do not accept that the consequences of the failure were insufficiently serious. Not only did the case concern whether N was able to continue to access education in the school which, on the available evidence, appears to have been a supportive environment during his time there, but whether there were significant mitigating factors for N’s conduct. In my judgment, Mr Buttler KC has correctly identified the consequences of the three breaches now being considered.

94. It is unsurprising that legislation and guidance concerning education exclusions makes no express reference to determinations by the SCA. No doubt the conduct and circumstances leading to potential exclusion decisions are varied and so the Guidance needs to be expressed in terms applicable to a wide variety of circumstances.

95. As the duty is an obligation of means, not of result (Kurt), failure to deploy the means will be a substantive breach for the purposes of the Begum test.

96. Nor do I consider that N fails to meet the “victim” test. Had the duty been complied with, the matter might never have needed to progress as far as the IRP, so he has lost the chance of a more nuanced response to his behaviour. Nor do I consider that the fact that the route of challenging an exclusion decision before an IRP typically provides an alternative remedy so as to preclude resort to judicial review at earlier stages in the exclusion decision-taking process is relevant if the harm is sustained earlier in that process. Mr Oldham KC submits that Kurt v Austria says nothing about “victim” status, but that is because in that case the applicant was the mother whose son had been killed by an abusive ex-partner and whose victim status was scarcely likely to have been in doubt.

97. It follows that, subject to questions of delay, alternative remedy and s.31(3C)-(3F) of the Senior Courts Act 1981 (all of which have been put in issue by the local authority and which are considered further below), that I would hold that it was in breach of art.4 in the three respects identified. IRP decision – the facts

98. Headteacher A gives unchallenged evidence that to the best of her knowledge, CCE was not discussed at a meeting held on 8 February 2022 at the end of N’s placement at HLP. The police had not informed her, nor, to the best of her knowledge, anyone else at the school that the police had referred the case to the SCA. The first time she had been made aware that this had happened was on 22 November 2022, in the course of the IRP hearing.

99. It followed from that, and is now undisputed, that at the time of the decision to issue a permanent exclusion to N on 1 April 2022 the school was unaware of the referral or ensuing Reasonable Grounds decision.

100. CCE had been raised by and on behalf of N and his mother and was addressed, along with other concerns, by the GDC in its decision letter dismissing the appeal.

101. Mr M, who had chaired the GDC, subsequently appeared before the IRP on 22 November 2022, indicating that: “there were several uncorroborated allegations from the parents. The Governing Body had no evidence of bullying and no evidence that there were other forces operating such as CCE.”

102. It is not disputed that no mention was made of the Reasonable Grounds decision in the proceedings before the GDC (even though a representative of the local authority was present).

103. Before the IRP, N was represented by solicitors and counsel. Counsel provided written representations extending over 13 pages, principally directed to equalities and discrimination issues. Its conclusion was (emphasis added) that: “For the reasons above, the Applicant submits that the only proper course is for the IRP to quash the decision of the GB to uphold the permanent exclusion of [N] and to direct the GB to reconsider its decision.”

104. It is common ground that the Reasonable Grounds decision was known about at the IRP hearing, as Headteacher A’s evidence above confirms. IRP decision – law and guidance

105. Section 51A(3)(c) of the Education Act 2002 requires regulations to be made requiring local authorities to make arrangements for independent review panels. Sub-section (4) then provides that: “(4) On an application by virtue of subsection (3)(c), the review panel may— (a) uphold the decision of the responsible body, (b) recommend that the responsible body reconsiders the matter, or (c) if it considers that the decision of the responsible body was flawed when considered in the light of the principles applicable on an application for judicial review, quash the decision of the responsible body and direct the responsible body to reconsider the matter.”

106. No particular points were made by reference to the regulations referred to — The School Discipline (Pupil Exclusions and Reviews) Regulations 2012 (SI 2012/1033).

107. The School Exclusions Guidance notes: “161. Where the criteria for quashing a decision have not been met, the panel should consider whether it would be appropriate to recommend that a governing board reconsiders its decision not to reinstate the pupil. This should not be the default option, but should be used where evidence or procedural flaws have been identified that do not meet the criteria for quashing the decision, but which the panel believe justify a reconsideration of the governing board’s decision. This could include when new evidence presented at the review hearing was not available to the governing board at the time of its decision.” IRP decision – the decision letter

108. The IRP’s decision letter ran to 16 pages. Summarising the relevant parts of the decision letter for present purposes: — It set out the powers of the panel and recorded that these had also been explained at the hearing. — It set out the reasons for the exclusion and recorded that the panel had sight of relevant school policies. — It referred to, and summarised, the content of counsel’s written representations and also the representations which N’s mother had made to the GDC. — It set out evidence from Headteacher A and Mr M and the answers given to numerous questions put to them. It noted Headteacher A’s view that there had been a “grilling” by the GDC in relation to CCE and also the Headteachers’ position that there was no evidence that N’s behaviour was linked to CCE at that time, though it was accepted now that a referral had been made to the NRM which had resulted in a positive Reasonable Grounds decision that N is a victim of modern slavery. Numerous other references were made to CCE in this section. — In a section setting out the case on behalf of N and his mother, it recorded their wish that the case be dealt with in the manner which had been set out in their written representations and in the points made orally by counsel on their behalf. A statement from N was read out. — Limited input was recorded from the local authority’s representative and a substantial amount from the SEN expert who were in attendance. — It listed a number of factors taken into account by the panel in coming to their decision. — It set out parts of the Statutory Guidance it considered relevant to its decision and how they applied to the appeal it was considering. — It set out their view that they had seen no reason to conclude that N had been discriminated against on the basis of any protected characteristic. — It concluded by considering the three headings of illegality, irrationality and procedural impropriety, setting out why the panel considered that none was made out, before finally turning to proportionality, reaching a similar conclusion. IRP decision – Claimant’s submissions

109. Mr Buttler KC no longer sought to pursue a ground that in failing to exercise its power under s.51A(4)(c) of the 2002 Act the IRP had acted irrationally. He did however maintain the position that the IRP had acted irrationally by failing to exercise its power under sub-section (b) to recommend that the Governing Body reconsider the matter. The IRP had known about the Reasonable Grounds determination and been aware that the GDC had not known about it. It was the sort of case envisaged by para 161 of the Guidance, quoted above. The IRP had leapt from deciding that sub-section (c) did not apply to dismissing the appeal under sub-section (a). The Guidance (at [152]) indicates that: “The panel should support all parties to participate in the review and ensure that their views are properly heard. The independent review should be conducted in an accessible, unthreatening and non-adversarial manner.”

110. He relied on two authorities. In R v Barnet LBC ex p. Shah [1983] 2 AC 309, the House of Lords was considering the availability of student grants under the Education Act 1962. Subsection (1) of section 1 imposed a duty on local education authorities (as they then were) to award a grant to people who met certain conditions. Subsection (4) provided that without prejudice to the duty imposed by subsection (1), a local education authority had power to make an award to those who were not eligible under subsection (1). Lord Scarman, with whom the remainder of their Lordships agreed, said at 349F-350A (italicised words added for the purpose of discussing submissions below): “I now turn to the student Shabpar's alternative case in relation to a discretionary grant. This case does not now arise for decision, but it does raise a question upon which it was made clear local education authorities would welcome guidance. Eveleigh L.J., who alone of the appeal judges dealt with the power to grant a discretionary award, expressed the opinion that upon an application for an award under section 1 of the Act of 1962 there was no obligation upon the authority to consider it "from the point of view of its discretionary power": [1982] Q.B. 688 ,

724. I cannot agree. When a student applies for an award under section 1 of the Act of 1962 (or its modern equivalent) he is to be understood to be applying for one or other of the awards available under the section, i.e. mandatory under subsection (1) or, if he fails, discretionary under subsection (4) . His application under the section, unless it be expressly limited to a mandatory award, which it was not in Shabpar's case and is in any event highly improbable, involves the duty to consider whether or not to make a discretionary award in the event of a failure to establish eligibility for a mandatory award. In my view, therefore, an application under section 1 of the Act, or its modern equivalent, requires, unless it be in terms a restricted application, the local education authority to consider the exercise of its discretion, if it has concluded that the applicant is not entitled to a mandatory award.”

111. In R (Halvai) v London Borough of Hammersmith and Fulham [2017] EWHC 802 (Admin), Ms Halvai had applied for a Discretionary Housing Payment. The local authority had a policy which Ms Sara Cockerill QC (as she then was), sitting as a Deputy High Court Judge, held that it had failed to apply properly. The second ground of challenge was that even if Ms Halvai were ineligible under the policy, the local authority’s policy left decision-makers with a discretion whether to make an award in circumstances outside the policy and there was no sign that the discretion was considered. Ms Cockerill QC (at [55]) agreed. The Barnet case was among those cited to her.

112. In KP v Secretary of State for Foreign, Commonwealth and Development Affairs [2025] EWHC 370 (Admin) Chamberlain J had explained that: “Process rationality includes the requirement that the decision maker must have regard to all mandatorily relevant considerations and no irrelevant ones, but is not limited to that. In addition, the process of reasoning should contain no logical error or critical gap. This is the type of irrationality Sedley J was describing when he spoke of a decision that “does not add up – in which, in other words, there is an error of reasoning which robs the decision of logic”: R v Parliamentary Commissioner for Administration ex p. Balchin [1998] 1 PLR 1, [13]. In similar vein, Saini J said that the court should ask, “does the conclusion follow from the evidence or is there an unexplained evidential gap or leap in reasoning which fails to justify the conclusion?”: R (Wells) v Parole Board [2019] EWHC 2710 (Admin), at [33].”

113. In Mr Buttler KC’s submission, either the IRP breached its duty to consider exercising its power under subsection (b) or, if it did consider it, there was “an unexplained …leap in reasoning” of the sort referred to by Saini J as quoted above and so its decision was irrational.

114. CM in his submission supports the view that a credible suspicion of trafficking is a relevant factor for a school to take into account when deciding whether to make a permanent exclusion decision (at [76]) and thus that the fact of the Reasonable Grounds decision was an important consideration for the IRP when it fell to it to exercise its powers. IRP decision – First Defendant’s submissions

115. Mr Oldham KC noted the limitations of the pleaded case (including that there was no pleaded reasons challenge). Nor is any art.4 challenge now made to the IRP’s decision. No new material has come to light concerning the IRP’s decision so the Claimant’s case could have been refined earlier, if wished. Had that been done, the IRP would have had an opportunity to explore whether there was additional material to submit. The case for the Claimant should, as regards the challenge to the IRP’s decision, be confined to the (surviving bit of) the pleaded case (which Mr Buttler KC in Reply accepted).

116. Mr Oldham KC noted that no irrationality was being alleged against the Governing Body and asked rhetorically how in those circumstances it could be irrational for the IRP not to recommend reconsideration.

117. He submitted there was no allegation that the IRP had departed from the statutory guidance (I take this as referring to a pleaded allegation, as in oral submissions Mr Buttler KC did rely on the Guidance on exclusions, as noted above). He noted that the Modern Slavery Guidance is silent on the impact of a Reasonable Grounds decision on a school exclusion decision.

118. In his submission (and it is not disputed) the GDC had not known of the Reasonable Grounds determination. Further, CCE had been well ventilated throughout (I do not need to set out here the ample list of references demonstrating this) and had been factored into the IRP’s deliberations.

119. He noted what the IRP had been asked to do by counsel i.e. to quash the decision on the judicial review type grounds under sub-section (c). It was now being said that the IRP had irrationally failed to do something which it was not being asked to do.

120. The panel had expressly set out its powers under section 54A. The discretion conferred upon it was broad. It was aware the GDC had not known about the Reasonable Grounds decision but that it had considered CCE, which had been ventilated before it.

121. Halvai could be distinguished because in the present case (unlike in Halvai) the existence of the discretion was recognised in the decision. Lord Scarman’s observations in the Barnet case were obiter. Further, he had expressly excluded the situation where what was being applied for was expressly limited (see the italicised words at [110] above) and that is what had happened here.

122. The correct approach to reading a decision of an independent review panel is to apply a “fair reading in the particular context”, as was done by Schiemann LJ in S, T and P v London Borough of Brent [2002] EWCA Civ 693 at [93]. Without prejudice to his contention that this was not properly a reasons challenge, the reasons were compliant with what was said in R(Alconbury Ltd) v Secretary of State for the Environment at [170]: “What is required is that there should be a decision with reasons. Provided that these set out clearly the grounds on which the decision has been reached it does not seem to me necessary that all the thinking which lies behind it should also be made available, whether the decision is made by an inspector or by the head of a government department.”

123. Mr Oldham KC submitted that the recent decision in CM supports his position that the IRP’s decision could not be impugned for a failure to address every point put by counsel. IRP decision – consideration of submissions

124. It is irrelevant that no challenge on the basis of irrationality is made to the decision of the GDC. The IRP knew something the GDC did not, namely the existence of the Reasonable Grounds decision. The IRP knew that there had been extensive discussion before the GDC of the possibility of CCE, but that no evidence confirming it had been found. Now the IRP knew that the SCA had concluded there were “Reasonable Grounds”. That does not require evidence that CCE had occurred on the balance of probabilities but I can accept that a Reasonable Grounds determination by the SCA might be thought to add to the weight to be given to the possible concerns of CCE. In the abstract, it could have been a case where the power under sub-section (b) could have been exercised, but the question for me is whether it was irrational not to do so.

125. In my view, the key to this is in the case which was put to the IRP. It was put on the basis of seeking a decision under sub-section (c). That is what the IRP considered. Theirs was a careful decision. They referred conscientiously to a number of parts of the Guidance, including moving from earlier paragraphs to para 157 (dealing with the “judicial review” type issues contemplated by sub-section (c)). There is no suggestion that even when the existence of the Reasonable Grounds decision was referred to, it prompted any oral request to consider the exercise of the power under sub-section (b) as an alternative to that under sub-section (c). The IRP was conscientiously doing what it was asked to do. A credible suspicion of trafficking is indeed liable to be a relevant factor to a permanent exclusion decision, but it does not follow that the IRP was obliged to respond to that factor in a particular way.

126. In my view, Mr Oldham KC’s submissions regarding Barnet and Halvai were well-founded. Though indeed obiter, Lord Scarman’s observations in Barnet (with which Lord Lowry expressly associated himself) should carry weight, but the present case involved what was indeed an express limitation (“the only proper course”), made with the benefit of skilled legal advice, on what was being sought. Such limitations may have been said by Lord Scarman to be rare, but that was in the context of applying for a grant when a person would naturally tend to seek every opportunity to secure the necessary funds. It makes every sense for an application to an independent review panel in a complex case to be limited so as to give prominence to the points considered to have the best chance of success.

127. Halvai can indeed be distinguished. The IRP’s decision set out at the outset its powers under s.54A.

128. The fair reading of the IRP’s decision in my view is : (a) that it was addressing the case that had been put to it by counsel; and (b) in order to do so, it was reviewing the processes followed by the school and the GDC and examining the provision that had been put in place for N, concluding that none of the grounds put forward for overturning the exclusion decision were made out.

129. Whether there may be any tension between the remarks of Saini J illustrating “process irrationality” quoted above and the principles governing the adequacy of reasons was not explored before me. This was not a reasons challenge and I am satisfied that, viewed in context, there was no irrationality in the process followed and reasoning set out, given the submission that had been made to the IRP. Mr Oldham KC does not need CM in order to succeed on this point, but I consider that CM is consistent in this regard with the view I have reached.

130. While I accept that it is sufficiently arguable for permission to be given, the challenge to the decision of the IRP accordingly fails on its merits. Delay – the law

131. Mr Oldham KC relies on the requirement of CPR 54.5 that the claim form must be filed— (a) promptly; and (b) in any event not later than 3 months after the grounds to make the claim first arose. and on Senior Courts Act 1981 s.31(6): “(6) Where the High Court considers that there has been undue delay in making an application for judicial review, the court may refuse to grant— (a) leave for the making of the application; or (b) any relief sought on the application, if it considers that the granting of the relief sought would be likely to cause substantial hardship to, or substantially prejudice the rights of, any person or would be detrimental to good administration.” Delay in relation to the IRP

132. The IRP’s decision was dated 16 December 2022. The claim against the panel was filed on 16 March 2023. Mr Oldham KC says that that was not “prompt”, referring to the dicta in R v Education Committee of Blackpool Borough Council ex p Taylor [1999] ELR 237 where Kay LJ emphasised that in education cases it was particularly important that there was no delay and also indicated that pursuing alternative dispute resolution mechanisms would not justify delay. However, I note that in that case the delay was over 5 months and so, as the court noted “made well outside the 3 month period” and that the issue of delay did not actually arise for decision in the case.

133. I would not refuse permission to challenge the decision of the IRP on the ground of lack of promptness in the case. The reasons for promptness certainly include (without limitation) the desire to minimise disruption to a young person’s education as well as management issues for schools and local authorities. In this case, N is not seeking to return to the school and has been offered alternative provision. I consider that Mr Oldham KC’s submission that the school and GDC are entitled to a rapid challenge does not indicate any real prejudice to them from the passage of time before the claim was filed. However. as I have concluded that the challenge to the IRP’s decision fails on its merits, the issue does not arise to any material extent. Delay in relation to breach of s.52

134. The period relied upon before me as constituting a breach ended on 21 March 2022. There was no continuing material breach after that date, because the SCA was already aware of the matter, following the referral by the police, and the local authority knew that to be the case. The evidence relied upon for the breach is at [7] and [9]. The Child and Family Assessment dated 30 March 2022 bears typed signatures including that of N’s mother and was compiled with input from her. It refers to the referral to the SCA/NRM. I consider that if N and his mother wished to bring judicial review proceedings complaining of the local authority’s failure to make a referral to the SCA sooner than the police had done, and so to assert that they were in breach of s.52, time ran from (at latest) the date of the assessment, when it is clear that N’s mother knew that a referral had been made. I do not accept that the failure to comply with s.52 should be construed as part of the breach of art.4 through the local authority’s failures to pass information to the school, which I accept was a continuing breach until the IRP hearing, the first date on which the school was aware of it. Section 52 is a different and specific obligation and one which came to an end sooner. It follows that a challenge made on 16 March 2023 was neither made promptly nor within 3 months. So far as necessary in order to address the hitherto undecided application for permission to amend and/or the invitation made orally by Mr Buttler to give such extension of time as the Court might consider necessary, I refuse the extension of time in relation to s.52 in view of the length of delay and in view of N’s mother’s knowledge of the situation at an early stage. Accordingly, I refuse permission in relation to the ground based on s.52 on the ground of that it was not made in accordance with CPR 54.5. Delay in relation to breach of art. 4

135. By Human Rights Act 1998, s.7: “(1) A person who claims that a public authority has acted (or proposes to act) in a way which is made unlawful by section 6(1) may— (a) bring proceedings against the authority under this Act in the appropriate court or tribunal, or (b) rely on the Convention right or rights concerned in any legal proceedings, but only if he is (or would be) a victim of the unlawful act. … (5) Proceedings under subsection (1)(a) must be brought before the end of— (a) the period of one year beginning with the date on which the act complained of took place; or (b) such longer period as the court or tribunal considers equitable having regard to all the circumstances, but that is subject to any rule imposing a stricter time limit in relation to the procedure in question.” The closing words have the effect that in judicial review proceedings, it is the judicial review time limits that apply: see Lewis, Judicial Remedies in Public Law, 6th Edition at 16-045.

136. As regards the breach of art.4 constituted by the items referred to as (iii) (vi) and (vii), I accept Mr Buttler KC’s submission that these represented a continuing breach. There was an ongoing failure by the local authority to engage in communication with the various emanations of the school (the headteachers, then the GDC) first in relation to N’s potential involvement with CCE and subsequently the Reasonable Grounds determination. The breach continued until the date of the IRP hearing on 22 November, when the school became aware of the Reasonable Grounds determination and time ran from that date. Proceedings were therefore not issued within three months and Mr Buttler KC does indeed need an extension of time.

137. I allow the application to amend dated 27 March 2024. Much of it is now of limited significance but it does include an application for extension of time against the local authority in respect, it is said, of “safeguarding breaches”. That is very unfocussed language, in part reflecting the lack of disclosure at that stage, but Mr Buttler KC made it clear his position at the oral hearing that if, contrary to his primary position, he needed an extension of time in respect of the case as he was now putting forward, he sought one. Mr Oldham KC had full opportunity to argue his points on delay and I am satisfied that there is no injustice in treating the application as applying to the art.4 breaches I have found.

138. I accept the evidence in Ms Cole’s witness statement dated 15 March 2023 as to the steps taken and the reason why it took as long as it did between the decision of the IRP and issuing proceedings. Mr Oldham KC criticises some of the steps as unnecessary in relation to proceedings against the IRP, such as the Subject Access Requests made, but certainly that made to the school was far from irrelevant to a potential claim against the local authority as it would help establish what the school had or had not been told by the local authority. Nor do I consider it unreasonable to have awaited the decision of the IRP, which might have resolved the matter in practical terms. I therefore do not think there was a lack of promptness, nor undue delay for the purposes of s.31(6), but the time lag between the IRP hearing and the IRP decision is enough to mean that, as regards art.4, proceedings were not brought within 3 months of the end of the art.4 breaches which I have permitted to be argued.

139. The extension needed is short (24 days). There is no evidence that allowing those 24 days would be prejudicial to good administration: indeed, it may further it. There is a strong public interest in highlighting the relevance of evidence of potential CCE and of a Reasonable Grounds determination to a permanent exclusion decision and the local authority’s failure to note the Reasonable Grounds decision and the follow-up emails, a fortiori to notify the school, appears egregious. For those reasons I extend time to allow those art.4 breaches which I have considered to be adequately pleaded to be put forward. Alternative remedy

140. Mr Oldham KC submits that, as regards the claims against the local authority, there were two complaints procedures available, which the Claimant should have used.

141. Mr Buttler KC’s submission is that the questions raised are legal ones, and complicated at that, and are unsuited to determination by procedures staffed by non-lawyers. He contrasts with the present case the situation in R(Lloyd) v Barking and Dagenham LBC [2001] 2 FLR 763, which he characterises as involving practical or operational matters.

142. Mr Oldham KC submits that it is not necessary for an alternative remedy to fulfil all the functions of judicial review, citing R(Cowl) v Plymouth City Council [2002] 1 WLR

803. As to Lloyd, he submits that it was in fact a case of considerable complexity, citing paragraph 7 of the decision (which refers to a claim of abuse of power and breach of undertaking by the local authority concerned on a property sale and a failure to carry out a lawful assessment).

143. In Lloyd, it appears to me that a fundamentally practical matter – a dispute about the loss of communal dining – had been heavily “lawyered” when it did not need to be and where in the words of the Court of Appeal “the genuine desire of Mrs Lloyd’s advisers to achieve what they deem to be the best for her is the enemy of the achievement of the good” (at [14]). The Court indicated at [27] that it was there in the last resort for matters of illegality, not for differences of judgment, for which the procedure of complaint to the Secretary of State was more appropriate.

144. The present situation is different. The claim involves important issues of human rights in a context (modern slavery) which is the source of considerable concern and, in particular, how the mechanisms respond where the potential (and as it turned out, actual) victim is a school pupil. Although some of the issues in the case could be seen as practical or operational – arising out of the local authority’s apparent failure to file properly, or otherwise heed, the notification of the Reasonable Grounds decision or the follow-up emails from the SCA — others are not, in particular the local authority’s failure to discern from the material available to it that the school should be informed of the existence of reasonable grounds.

145. Further, the route adopted of an appeal to the GDC and then the IRP was not an unsuitable one for the purpose of seeking to clear N’s name on the basis that his conduct had been under duress, and it was one where the local authority was “in the loop”, sending a representative to the meetings of both bodies. I would regard it as unrealistic and unreasonable to have expected N and his mother additionally to have pursued the internal complaints procedure, which in any event for the reasons in the preceding paragraph was not well suited to the issues in the case.

146. I therefore reject Mr Oldham KC’s submission that permission or relief should be refused on the basis that N had a suitable alternative remedy. Senior Courts Act 1981 s.31(2A) – (3F)

147. Section 31 materially provides: “(2A)  The High Court— (a) must refuse to grant relief on an application for judicial review, and (b) may not make an award under subsection (4) on such an application, if it appears to the court to be highly likely that the outcome for the applicant would not have been substantially different if the conduct complained of had not occurred. (2B)  The court may disregard the requirements in subsection (2A)(a) and (b) if it considers that it is appropriate to do so for reasons of exceptional public interest. (2C)  If the court grants relief or makes an award in reliance on subsection (2B), the court must certify that the condition in subsection (2B) is satisfied. … (3C)  When considering whether to grant leave to make an application for judicial review, the High Court— (a) may of its own motion consider whether the outcome for the applicant would have been substantially different if the conduct complained of had not occurred, and (b) must consider that question if the defendant asks it to do so. (3D)  If, on considering that question, it appears to the High Court to be highly likely that the outcome for the applicant would not have been substantially different, the court must refuse to grant leave. (3E)  The court may disregard the requirement in subsection (3D) if it considers that it is appropriate to do so for reasons of exceptional public interest. (3F)  If the court grants leave in reliance on subsection (3E), the court must certify that the condition in subsection (3E) is satisfied.” SCA s.31 the “highly likely” test – Defendants’ submissions

148. Mr Oldham KC does ask me to consider these provisions. He submits that N’s beach of discipline was a serious one and threatened the welfare of other pupils. CCE was considered fully. Headteacher A’s evidence is that: “In making both the fixed-term exclusion and permanent exclusion, the Co-Headteachers took into account NAA's possible vulnerability to CCE. We considered CCE as an issue, but did not think that there was evidence to show that NAA was a victim of CCE, or that he was at any distinct risk of becoming a victim, so that we could not regard it as a mitigating factor. Even if the School had seen evidence of CCE concerns, in my view we would have reached the same conclusion that a permanent exclusion was a proportionate and rational response to NAA's actions and the threat he posed to another student.” For these reasons, Mr Oldham KC submits that the Reasonable Grounds determination would have added little or nothing and that it is indeed highly likely that the outcome would have been the same. He submits that CM supports this position in that (at [77]) Rory Dunlop KC indicated that he found it “difficult to conceive of a case where permanent exclusion, which is consistent with the Guidance [on permanent exclusion] and therefore genuinely a measure of last resort, would be prohibited by Article 4 ECHR”. He notes that in the present case there is no contention that the permanent exclusion itself was inconsistent with the Guidance. SCA s.31 the “highly likely” test – Claimant’s submissions

149. Mr Buttler KC refers me to R(Plan B Earth) v Secretary of State for Transport [2020] PTSR 1546 where the Court of Appeal observed (at [106]): “It would not be appropriate to give any exhaustive guidance on how these provisions should be applied. Much will depend on the particular facts of the case before the court.  Nevertheless, it seems to us that the court should still bear in mind that Parliament has not altered the fundamental relationship between the courts and the executive. In particular, courts should still be cautious about straying, even subconsciously, into the forbidden territory of assessing the merits of a public decision under challenge by way of judicial review. If there has been an error of law, for example in the approach the executive has taken to its decision-making process, it will often be difficult or impossible for a court to conclude that it is “highly likely” that the outcome would not have been “substantially different” if the executive had gone about the decision-making process in accordance with the law. Courts should also not lose sight of their fundamental function, which is to maintain the rule of law. Furthermore, although there is undoubtedly a difference between the old Simplex test and the new statutory test, “the threshold remains a high one” (see the judgment of Sales L.J., as he then was, in R. (on the application of Public and Commercial Services Union) v Minister for the Cabinet Office [2017] EWHC 1787 (Admin); [2018] 1 All ER 142, at paragraph 89).”

150. He submits that if the school had been told earlier that reasonable grounds existed, the events of 2nd March might never have happened. Headteacher A’s evidence is that had the school been alerted to the concerns, the school would have carried out a risk assessment. As to the permanent exclusion decision and its subsequent consideration by the GDC, one cannot say how it would have been decided. The incident was very serious but the fact that N was at that stage reasonably suspected to be a victim of modern slavery puts a different complexion on it. Though we have Headteacher A’s evidence, we do not have that of her Co-headteacher as to what the outcome would have been. Moreover, there is a difference between being alerted to the “concerns”, as her evidence addresses, and receiving a formal determination by the body responsible on behalf of the State that Reasonable Grounds existed. SCA s.31 the “highly likely” test – Court’s consideration

151. Headteacher A explains in her evidence that she and her Co-Headteacher both took the exclusion decisions and both presented the case to the GDC, but that Headteacher A alone had dealt with the IRP proceedings. Given the extent of the Co-headteacher’s involvement at the earlier stages and their shared joint and several responsibility for their duties, I consider that Headteacher A’s evidence speaks as to their joint position and I do not regard the absence of evidence from the Co-headteacher as significant.

152. I do however consider that had the headteachers and/or the GDC been aware of the Reasonable Ground determination, its significance, for the reasons articulated by Mr Buttler KC, means that it is not possible to say that the test in s.31 is met. I do not underestimate the significance of the concerns which led to making, and then upholding, the permanent exclusion. However, the tenor of the evidence is that at those stages, CCE was recognised as a subject of parental concern, and treated seriously as such, but that there was a lack of evidence in support of it. The headteachers and GDC were also having to deal with difficulties on obtaining evidence from N and his mother and when such material was obtained, it contained a number of diversions which may not have been readily conducive to addressing the issues. (That is not intended as a criticism, I recognise how difficult the events must have been for them.) What I am suggesting is that it is possible that awareness of the Reasonable Grounds determination may have served (a) to add a degree of credence to the concerns that were being raised and (b) to cut through a certain amount of background distraction to focus on the CCE issue. Had that occurred, in my view it is not possible to say that the “highly likely” test would be met. The evidence is that the school has made considerable efforts to support N in the past and what it would have done had it been alerted to the Reasonable Grounds decision is not for me to speculate.

153. Nor do I consider the “highly likely” test is met had the school been alerted earlier to the existence of reasonable grounds for concluding that N was the victim of CCE. The same observation applies to the school’s supportive attitude to a pupil facing difficulties. We know from the evidence that a risk assessment would have resulted and what the school would have done to address the perceived risk to the school community as well as N’s own needs and vulnerabilities again is a matter as to which I cannot and do not speculate.

154. I do not consider that merely because failure to comply with the Guidance was not raised as a separate ground, it enables Mr Oldham KC to draw support from CM in this regard. The respects in which I have concluded that the local authority breached art.4 occurred earlier in the chain of events, where what might would have happened if the breaches had not occurred is unknowable for the reasons given in preceding paragraphs and so it cannot be said that permanent exclusion was necessarily a measure of last resort. Summary and Relief

155. Therefore: a. I refuse permission for judicial review in respect of the Second Defendant’s claimed breach of s.52 on the ground of delay; b. I refuse permission for judicial review in respect of the Second Defendant’s alleged failures numbered (i)(ii)(iv)(v) and (viii) (see paras 55 and 56 above) on the basis that they were not pleaded so as to be raised in these proceedings. c. I extend time and give permission for judicial review in respect of the Defendant’s failures numbered (iii), (vi) and (vii) and declare that in those respects the local authority was in breach of art.4 ECHR. Relief is not denied on the ground of delay (any necessary extension having been granted), nor on the existence of an alternative remedy, nor on the basis of s.31 of the Senior Courts Act 1981. I say more about relief in respect of those failures below. d. I give permission for judicial review in respect of the decision of the Independent Review Panel but the application for judicial review is refused on the merits.

156. As to the remedy for the breaches of art.4 which I have found, the Claimant, as well as seeking a declaration, invites me to give directions for an assessment of damages in the County Court.

157. Section 8 of the Human Rights Act materially provides: “(1) In relation to any act (or proposed act) of a public authority which the court finds is (or would be) unlawful, it may grant such relief or remedy, or make such order, within its powers as it considers just and appropriate. (2) But damages may be awarded only by a court which has power to award damages, or to order the payment of compensation, in civil proceedings. (3) No award of damages is to be made unless, taking account of all the circumstances of the case, including— (a) any other relief or remedy granted, or order made, in relation to the act in question (by that or any other court), and (b) the consequences of any decision (of that or any other court) in respect of that act, the court is satisfied that the award is necessary to afford just satisfaction to the person in whose favour it is made. (4) In determining— (a) whether to award damages, or (b) the amount of an award, the court must take into account the principles applied by the European Court of Human Rights in relation to the award of compensation under Article 41 of the Convention. …”

158. I am not satisfied that there is any realistic possibility that a County Court, applying s.8, could award damages and so I do not make the direction sought. No matters were pleaded going to why damages would be appropriate in this case nor were any submissions to that effect made. What the Claimant has lost as a result of the breaches is the possibility that, had they not occurred, the school authorities might have responded differently to his behaviour. R v Greenfield v Secretary of State for the Home Department [2005] UKHL 14 suggests that loss of a chance is not something the Strasbourg court will generally reflect in an award of damages. Further, it is hard to see where, had the school authorities responded differently, the Claimant would have avoided a financial detriment which he has instead had to suffer.

159. The Claimant will be able to say not only (in consequence of the Conclusive Grounds decision) that his behaviour was affected by CCE but also (in consequence of the declaration made by the present decision) that as a result of the authority’s failure to alert the school that reasonable grounds existed for concluding that such was the case and that the SCA for its part had concluded that reasonable grounds existed, that factor was not taken into account at any point at earlier stages in the exclusion procedure, when it might have led to a different result. That in my view constitutes “just satisfaction” and so the possibility of damages is excluded.

160. It remains for me to thank counsel for their resourceful and interesting submissions.