NABMSE CONFERENCE

1. NABMSE CONFERENCE Friday NOVEMBER 21ST 2008 David Ruddy BL

2. “Ignore Appointment procedures at your peril”

3. Phyllis Brown VBoard of Management of Rathfarnham Parish National School, the Most Reverend Dr John Neil and the Minister for Education and Science (respondents) and Joyce Perdue (Notice Party)High Court June 2006Mr. Justice Quirke

4. THE COMPLAINTS • Late application • Applications not provided with criteria for the post • Selection Board kept no records • Board of Management approved selection panel decision without a formal Board of Management meeting.

5. THE PATRON • Sanctioned the appointment • After a complaint withdrew sanction • Sanction was re-affirmed despite some misgivings that were felt not to be fatal.

6. DEPARTMENT OF EDUCATION & SCIENCE Sanction given on understanding that “the appropriate procedures were complied with” in relation to the appointment.

7. CONFLICT OF INTEREST • Successful candidate married to a member of the Board’s brother in law. This Board member was a barrister. Barrister informed Board of relationship and offered to withdraw if they thought it appropriate.

8. LEGAL ADVICE • The barrister gave Board comprehensive Legal Advice which suggested non-compliance by Board of Management not of sufficient gravity to invalidate the appointment.

9. NEW PRINCIPAL • Takes up post on 1st February 2006

10. APPOINTMENT PROCEDURES Section 23 of the Education Act 1998 + “Boards of Managements of National Schools – constitution of Boards and Rules of Procedures” 2003 Edition

11. RULES • Advertisements • Selection Boards • Interviews • Disclosure of interest/ integrity of proceedings “No part in any deliberation or decision of the Board”

12. JUDGEMENT The rules must be constructed as mandatory in application. Boards of Managements decision to appoint the Notice Party was unlawful and invalid.

13. Codes of Behaviour • THE NEW GUIDELINES • 2008

14. Why? • Section 23(3)Education Welfare Act 2000 • National Educational Welfare Board (NEWB) obliged to publish guidelines • Education Act 1998 • Equal Status Act 2000 • Constitution 1937 • International Conventions

15. Time frame • It is expected that the process of audit and review will be completed by September 2010 • Principals role is to lead the audit and review and ensure implementation of the code

16. Implementing and communicating the code of behaviour • Teach pupils the rules • Publish the code in the pupil’s journal • Secure parental support • Parents get copy of code • Parents requested to sign code as a condition of registration

17. Murtagh v BOM of St. Emer’s Primary School (High Court & Supreme Court) 1991 • “The enforcement of discipline in a school is a matter for the teachers, principal, chairperson of BOM & the Board itself; not a matter for the courts whose function at most is to ensure that the disciplinary complaint was dealt with fairly”

18. Responsibility of Board of Management (BOM) • Policy and procedures must be in place for • Suspensions/expulsions • Pupils/parents aware of the policy • All staff aware of fair procedures • BOM/principal competent • No undue delays, confidentiality

19. Sanctions • Appropriate to age and development stage of pupil • Should not impact disproportionately on particular groupings i.e.. members of the traveling community ,special needs pupils and international pupils. • Importance of pupils understanding purpose of sanctions

20. Special Educational Needs Pupils The code should be flexible enough to allow for implementation of individual behavioural management plans but in the case of gross misbehaviour or repeated instances of serious misbehaviour when the safety and duty of care to others is at issue the code takes precedence.

21. Authority to suspend • BOM • Principal –authority delegated formally and in writing. • What limits are there on the period of suspension delegated to the principal?

22. The period of suspension • Guidelines recommend the following options/possibilities for BOMs; • Principal 3 days • Principal 5 days (approval of chairperson) • Generally longer than 3 days refer to Bom • BOM should put a ceiling of 10 days max in relation to particular serious incident • Cumulative total of days reaching 20 days should be subject of review

23. Forms of suspension • Immediate suspension • Automatic suspension • Rolling suspension • Informal or unacknowledged suspension/voluntary withdrawal • Open ended suspension

24. Fair procedures based on the principals of natural justice • The right to be heard • Rt to know what alleged misbehaviour is being investigated • Rt to know how issue is decided • Rt to respond • If possibility of serious sanction rt to be heard by BOM • If dispute about facts the rt to ask questions of the other party or witnesses

25. Fair procedures based on the principals of natural justice • The right to impartiality • RT to an absence of bias in the decision maker. • Generally impartiality requires that the investigation is separated from the process of making a decision so that the decision- maker comes to the task with an open mind

26. Wright v Gorey Community School High Court 2000Fair procedures does not demand the formality of a courtroomlevel of formality of 3 day suspension is less than for longer suspension or expulsion

28. Principal had breached fairness of procedures M (a minor suing by his mother and next friend AM)v Principal and Board of governors of Good Shepherd Primary School High Court (Queen’s Bench Division) Belfast 2003

29. Criteria for judicial review • Decision of BOM fundamentally at variance with reason and common sense • Decision must be so overwhelmingly unreasonable that no reasonable person could ever have come to it. • Court cannot intervene just because it would have come to a different view on the facts. • BOM had no relevant material to support its conclusions.

30. Expulsion • Authority to expel should be reserved for the BOM • This authority should not be delegated • In VEC schools VEC has authority unless it chooses to delegate to BOM • Seek assistance of support agencies • Legal advice

31. Difference between behaviours that warrant suspension/expulsion • Degree of seriousness and persistence of the behaviour • Where expulsion is considered ,a series of interventions should have been tried by the school. • All possibilities of changing the pupils behaviour should have been exhausted

32. Automatic/expulsion for first offence • BOM can impose automatic expulsion for certain prescribed behaviours or in exceptional cases for a first offence • Sexual assault • Supplying illegal drugs to other pupils in the school • Actual violence or physical assault • Serious threat of violence against another pupil or member of staff

33. State (Smullen &Smullen)VDuffy 1980 High Court No right to legal representation at BOM meetings

34. Mulvey (a minor) v Mc DonaghHigh court 2004 • Adopted Des guidelines i.e. Bullying must be repeated, ongoing and sustained

35. Obversations • Guidelines are required by law • Degree of flexibility i.e. patrons can insert appeal mechanisms. • Due process/fairness of procedures non negotiable • Clarifies issues for 3200 primary schools and 800 secondary schools • Supersedes circulars i.e. 7/88,20/90.

36. Cross referencing • The code of behaviour should not be seen as a stand alone document. • Anti- bullying policy must be part of code • Health and safety statement • Admission/enrolment policy

37. Kirpan case Total ban on 12 yr old boy wearing kirpan To school violated an individual’s freedom of religion. Supreme Court of Canada

38. Sumali Pillay v Kwa Natal Mec • 15 yr old’s right to wear nose stud on religious grounds • Upheld in Constitutional Court of South Africa