The proposals to replace the anti-social behaviour order (ASBO) with the criminal behaviour order (CBO) – which ironically is to be handled through the civil courts – begs the question of whether the CBO will be more effective when considering unacceptable behaviour by parents and others in schools?
Although the law has changed a great deal since the ruling in Wandsworth London Borough Council v A
with respect to parents who are to be banned from school premises because of their unacceptable behaviour, it must always be the starting point for headteachers and governors.
Wandsworth Council v A (2000)
The school alleged that A, the mother of R, who was a pupil at the school, abused staff verbally and therefore the headteacher wrote to her to ban her from the school. The letter said that the action was being taken under Section 547 of the Education Act 1996 (EA).
Person A continued to come to school and continued to be rude and aggressive towards staff. Therefore the school and the local authority’s solicitor sought an injunction to exclude her from the premises.
Person A challenged the decision at court. At the hearing it was held that the letter had withdrawn A’s licence to enter or remain on the premises. She appealed. The Court of Appeal ruled as follows:
Parents had no licence to roam at will.
However at common law, the Court of Appeal distinguished the type of licence the parent had from that of others. While the school was entitled to exclude “a textbook seller or milkman” from the premises without any inhibition in public law, the same was not the case with the exclusion of a parent.
The parent should have been afforded an opportunity to make representations once the headteacher had given an indication of what he was proposing to do.
The Court of Appeal was at pains to make it clear that this was not at the level of some formal judicial process – a mere warning of some degree would have constituted the necessary aspect that was being described. This means that the school does not have the right to remove the licence parents hold, and therefore it must be treated as a greater licence than that of just an ordinary visitor.
The Court of Appeal and Section 547
The court made a special observation concerning the letter that the headteacher had written where he said he was working under Section 547 of the EA 1996.
He referred to the bringing of criminal proceedings against persons unlawfully on school premises. The Court of Appeal pointed out that there was no question of criminal action in this case, and it was a matter of concern that the head so far misunderstood his legal powers to have written as if there were.
It said that it revealed a serious misunderstanding of the school’s power and duties. The letter, it added, was entirely misconceived in its claim that the action of the head was taken under this section
Disconcertingly, unbeknown to the Court of Appeal, the Department for Education (in its earlier guise) had issued guidance to local authorities on how to use Section 547. The school had sought advice from the local authority and therefore the misconception was far wider than the school itself.
Nuisance/disturbance on education premises
Subsequent to this case, Section 547 had been amended under Schedule 20 of the EA 2002 and has been widened to be made more useful for educational establishments generally.
This schedule extends the provisions to non-maintained special schools, independent schools and local authority-maintained outdoor education centres.
As well as extending the scope of the existing provision, it also extends the powers of the police and “persons authorised by the relevant bodies” responsible for these educational institutions to act. The amendments came into effect in October of 2002.
Legal toolkit for schools
In 2002, the government produced a resource for schools. This set out the law with respect to bad behaviour at school by parents and others, offering model letters and a reporting form.
Its advice, which still remains good, is that all incidents should be logged, just as with pupils. That way a build up of information can be developed that can assist the school should there become any precipitated proceedings later.
It offers model letters for members of the public and a series of model letters for parents with children at the school. These letters take careful cognisance of the ruling in “A v Wandsworth”.
Legal remedies for schools
The toolkit sets out the legal remedies that the schools have for violence or abuse against members of the school community. These include Section 547 of the Education Act 1996 (as amended above) as well as the following:
Section 222 of The Local Government Act 1972: This gives the local authority the power to prosecute an abusive parent by way of criminal proceedings or alternatively to bring civil proceedings against the parents.
ASBOs (due to be replaced later in 2013): An ASBO can be sought by the local authority or chief officer of police and could be made in respect of anyone aged 10 or over who has acted in an anti-social manner.
CBOs: The proposed new CBO is to be attached to a criminal conviction. If breached, this would be a criminal offence carrying a sentence of up to five years’ imprisonment.
Protection from Harassment Act 1997: This is known as the Anti-Stalking Legislation, although it is not only used for that purpose. The action can be a criminal prosecution or a civil claim and can be done on behalf of an individual or a group.
Criminal Damages Act 1971: Under this, if the person destroys or damages property belonging to the school, or to a teacher, he or she can be prosecuted for causing criminal damage.
Common assault: Where a member of staff is assaulted by a parent and minor injuries caused, the charge of common assault in accordance with Section 39 of the Criminal Justice Act 1988 can be brought. Where the assault occasions actual bodily harm, the offence is brought under Section 47 (or for increasing severity, Sections 20 and 18) of the Offences Against the Person Act 1861.
Offences under the Public Order Act 1986: Unlike the Protection from Harassment Act, one incident alone is sufficient to constitute a public order offence. In these circumstances the local authority or academy does not have the relevant power to take action itself.
Criminal Justice Act 1988: Section 139a of the Act makes it an offence to carry an offensive weapon or knife on school premises. Under section 139b, a police officer may enter a school and search for a weapon. A person who has a weapon on school premises will be guilty of an offence, unless he can prove a statutory defence.
The Education Act 2011: This gives new stop and search powers within schools and colleges. Headteachers already have the power to search pupils, but this Act will further extend powers of search and introduce measures to increase the authority of teachers to search pupils without their consent.
The school context
Teachers and other school personnel do not have specific protection from the behaviour of parents or other visitors, other than that offered by the general law of the land, but as can be seen there is sufficient legislation for the law to be adapted to the needs of the school.
The staff should remember that they can always use “reasonable force” to protect themselves as individuals and, under threat, the children in their charge and care. The person who can remove a suspected offender or trespasser is either a police constable or an “authorised person”. It is for the local authority and/or governing body to decide who those authorised persons should be.
It is because this trend of offensive behaviour by parents and others is a growing one that the government has recently “beefed up” Section 547 of the Education Act 1996 and extended the ASBO (CBO) for both parents and children.
One-off incidents by their very nature cannot be foreseen or guarded against. Difficult or potentially difficult parents are another matter. Although it brings yet another burden to the school, difficult parents should be treated like difficult children. Their behaviour should be logged for every unacceptable incident.
The protection of Section 547 and ASBOs (CBOs) is best served by being able to show a history of attempting to manage the behaviour and that this “last straw” incident is then placed thoroughly in its context. The legal toolkit has an example of a reporting form which it advises should be filled in each time.
Case law is not helpful in this particular area. Since the tragic death of headteacher Philip Lawrence, there have been some cases that suggest the courts do not seem to be setting the example the government would like to see.
One incredible case was when a parent pinned a headteacher against the wall and attempted to head-butt him. He was treated leniently by the judge, however, avoiding a jail sentence, because the headteacher managed to move his head out of the way – how very reassuring!
Further informationYou can download the 2002 toolkit referenced in the article above at http://dera.ioe.ac.uk/6363/1/DfES-0504-2002.pdf
A former headteacher, Roy Woollard is now a partner in the education team at Berrymans Lace Mawer LLP.