Comment : Save the Children – EAR to Listen
(April 2007)
Save the Children's experience of supporting young people at Independent Appeal Panels demonstrates the importance of truly independent advice and support. Chris Rees, Development Officer at Save the Children talks about the importance of child-focused advocacy.
What is EAR to Listen?
EAR to Listen is a Save the Children action research project providing independent education advocacy to children and young people in England. It supports children and young people who have been or who are at risk of being excluded from school. It also works with children and young people who are disengaged from education due to other reasons.
The project provides children and young people with an independent and child-focused education advocacy service. The service provides advice and help for children to make their views known to decision makers in order to continue with their education. Support is given to children and their families on a number of levels from offering basic advice and information on the education system, to providing full representation in formal hearings such as Independent Appeal Panels.
Child-focused advocacy?
There is an inherent challenge in offering a child-focused advocacy service within statutory education: many decisions are legally in the hands of parents/guardians. For example, the decision about where to attend school or whether to appeal an exclusion. Where appropriate the project works with families as a whole, while ensuring that the wishes of the children and young people are prioritised; in effect the advocate's client is the child. This aspect of the service is explained clearly to parents and children at the beginning of any referral into the service.
Context of work
In the last release of national statistics (2004/05, DfES) 9440 children were permanently excluded from school in England with 389,560 fixed period exclusions occurring. There are many more children who are informally excluded from education either through self-exclusion, unofficial exclusion or because they are not registered at any school. There are certain groups that are more at risk of exclusion than others, including Black Caribbean boys, Looked After Children, those with Special Educational Needs and those from Gypsy and Traveller communities. Exclusion is still a considerable problem in schools in England despite the many interventions and initiatives that have been put in place.
Although there are organisations providing elements of support for children facing problems with their education (for example Parent Partnerships), there is very little opportunity for children and families to have access to independent professionals who can offer representation in formal meetings and hearings.
Examples of work
Over the two years in which the project has been working over 260 young people have been supported with their education. The nature of the work has been a mixture of preventative work with children still in school, and reactive support for young people already facing formalised exclusion or not accessing education.
Hearings: formal or informal?
Independent appeal hearings are undeniably intimidating to both the parents and children who face them. The majority take place in Local Authority offices and meeting rooms. All present are normally formally dressed and there is, despite the best efforts of some of the Chairpersons involved, an air of formality about the proceedings. Hearings often take a full working day (sometimes more – the longest hearing we have been involved in was over 3 full days). The process is highly rigid and often daunting for the child and the parent, especially given that they are effectively 'on trial' and that the hearing is likely to be their first experience of such an official procedure.
A fair playing field?
Hearings are stacked in favour of the excluding school. For example:
- Following the decision to exclude, parents have between 6 and15 days before the governors meet to examine the decision to exclude. For many parents to present a coherent argument challenging the exclusion (citing relevant educational law and guidance) within this time is extremely difficult.
- Unlike Head Teachers, many parents understandably have little or no knowledge of education law. Without appropriate support this is a considerable inequity.
- The paperwork and process present a language of their own. This needs to be translated and understood within the framework of education – IEPs, SEN, LSUs, PSPs and so on. Furthermore, descriptions of events often require perspective and scrutiny. For example one school had reported 'counselling' a student at risk of exclusion. This translated to occasional conversations with the Head of Year of which no records were kept. One child and family were given a full 're-integration meeting' following a previous exclusion. This was actually a brief discussion in which the child was told by a deputy head to promise not to get in trouble again.
- Preparation time for families can be very tight. We have often found that numerous requests for paperwork on the case (including documentation of the incident(s), evidence and school record) have been ignored or resulted in last-minute or incomplete information. Schools have access to files immediately after an exclusion so invariably have more ability to prepare.
- Head teachers and governors are used to speaking in formal contexts about their work, while parents are often not. Even if fully briefed and prepared, parents can find it hard to remain balanced when under the pressure of the hearing itself, particularly when the topic is emotive and their child's future is at stake.
- Despite the legitimacy of these hearings and of the child's right to appeal, we have witnessed unprofessional attitudes towards these proceedings. This has included: a deputy head shouting at a child during a hearing; staff openly mocking our support and presence before a hearing took place; and school staff refusing to speak to or acknowledge a child and their family immediately before and after a hearing.
Involving lawyers
The involvement of lawyers can be a double-edged sword. If a lawyer's knowledge of education law and guidance is not comprehensive their involvement can add confusion and intimidation to proceedings, baffling not only the opposite side but quite often the panel and the clerk too. I'll never forget a (particularly strong) Chair reminding a lawyer, who had just strongly requested to 'cross-examine' a child, that we were not on LA Law and to please ease off a little!
We've also come across one LA who seem to offer legal representation (from independent legal chambers) for schools in exclusions hearings as a matter of course, and yet offer parents no such assistance. Such support raises two questions:
- What are the costs (of public money) of such support? Which budget is this taken from?
- Is such support (or at least something similar) also being offered to parents in similar cases? If not this is an exceptionally inequitable situation, promoted and endorsed by the LA, supposed 'champion' of parents and children.
Unfortunately statistics recording exclusion appeals do not indicate the scale of legal representation for parents and for schools. Recent exclusions guidance was altered to enforce the right of head teachers to bring legal support (a suggestion stemming from the Steer Report in 2005). In our experience, the majority of legal representation is for schools and LEAs. Further investigation into this area of appeal hearings may help clarify this aspect of the process.
Conduct of the panel and clerk
We have also found great variation in the conduct of the panels in appeal hearings. There are many committed and knowledgeable panel members who conduct the process in a fair and transparent manner. However, our experience also suggests that it is the constitution of the panel, and in particular the chair, that has the strongest influence over the outcome (unless the appeal is concerning a serious and proven allegation, for instance one involving a weapon). There is huge and unacceptable variability in knowledge and understanding of relevant guidance and legislation on panels. Some panel members we've encountered have had no knowledge of 'School Action' and 'School Action Plus' when discussing the hearing of a child with SEN. We've also seen panel members interrogate parents and children with great gusto without questioning for the school at all. One Chair criticised the perceived 'bad behaviour' of a child in the middle of the hearing.
Questions must also be raised regarding the role of Head Teachers serving on panels. There have been increasing calls from the DfES for schools within local areas to work in partnership and share responsibilities. Local heads judging each other in appeal hearings seems contradictory to this ethos. In our experience Head Teachers often see these hearings as an indictment of their professionalism, and so should a 'colleague' reinstate a child (and implicitly accept that the excluding head was mistaken) it can lead to complicated further relationships on other educational matters.
Statistics
In 2004/05 of the 9440 permanent exclusions there were only 1030 appeals, of which 220 were successful (21.5%). Since panels have the right not to reinstate even when the appeal is upheld, ultimately only 110 children were reinstated to their original school. Despite this rate of return (1%), teaching unions have raised concerns about Independent Appeal Panels and the dangers of reinstatements! There have also been criticisms of exclusions being overturned on 'technicalities'. Our own experience indicates that gaining success in an exclusion appeal is incredibly difficult and takes a considerable amount of planning, knowledge and expertise. When an exclusion is overturned this is because the school has failed, fundamentally, to act in accordance with guidance, it is not merely the result of good fortune or an insignificant matter (unless 'technicalities' constitute matters such as a failure to provide support over an extended period, or a flawed and limited investigation).
What next?
For many of the reasons discussed we feel that it is crucial that parents and children have access to knowledgeable and professional advocates who can support them through the difficult and often lengthy process of school exclusion. There is considerable evidence citing the negative consequences of school exclusions for young people and society as a whole, both at the point of exclusion and in later years. Furthermore, our advocates also support young people following any appeal (win or lose), working to ensure that even if a child is not re-instated they are provided with an alternative education or a new school place by the LA as soon as possible.
Over the two years we have been working on this research we have been exploring many different models of practice and ways of delivering educational advocacy effectively. We have also linked with like-minded organisations for further work such as:
- Working with ACE (The Advisory Centre for Education) in 2005 on a young person's guide to exclusion - 'Having a Say'.
- Linking once more with ACE on developing an 'advocacy pack' for professionals supporting children who have been excluded from school. This will be developed in accordance with new exclusions guidance in Autumn of 2007.
- Developing a training programme which explores ways of supporting children and young people at risk of exclusion from school which is currently being piloted as part of Youth Access' national training package.
We are always looking to share our work and experiences, and to liaise with other organisations and groups (both statutory and voluntary). If you would like any further information regarding our advocacy work please contact us.
Case Study
At first point of contact with 'EAR to Listen' Martin, a student in Year 10, had just been permanently excluded for a series of alleged incidents of poor behaviour in school. Martin denied that he was responsible for all of these incidents. Martin and his family were very upset by the decision to permanently exclude him and wanted to challenge the decision but did not know what to do. Martin enjoyed attending his school and his parents wanted him to remain there. Prior to the incident Martin had done well at school, both socially and academically.
Firstly, the advocate explained to Martin and his family what their options were following the school's decision to permanently exclude. The family decided to challenge the decision and the advocate helped them to apply for an Independent Appeal Panel hearing through the Local Authority. The advocate supported them to contact the school for relevant documents (such as various school policies and Martin's full school record). Working with Martin and his family the advocate then prepared their case for them, this involved going through all the paperwork submitted (over 300 pages) and preparing a written submission for the panel which presented the arguments against the exclusion and the evidence for such arguments. On the day of the hearing the advocate represented the family and delivered, verbally, their case to the panel. During the hearing the school was represented by a lawyer, who was supported by the Head and a Deputy.
The Independent Appeal Panel found in favour of Martin and his family. It was felt that the school's decision to exclude was not correct due to considerable procedural and factual errors and Martin was allowed to return to school. The advocate ensured that the school presented positive and appropriate re-integration support for Martin so his return could be constructive for both himself and the school. By the time the appeal took place Martin was in Year 11, and had he been excluded it would have been unlikely that he would have returned to mainstream schooling. Several terms later there have been no further problems at school and Martin is preparing to take 7 GCSEs.