Thanks to cuts under the last government, low-income families now rarely get legal aid to contest exclusions – a “breach of human rights” that Persey and colleagues are challenging in a test case going through the high court. But schools frequently take lawyers to the hearings even if the parent is unrepresented.
“There will be cross-examination, legal submissions are made, and if you’re a parent who thinks an exclusion was discrimina tory, good luck trying to particularise an Equality Act breach and apply judicial review principles by yourself,” Persey said.
Sam wasn’t at the school long enough to chalk up a record for “persistent disruptive behaviour”, which is the most common reason cited for excluding a child. But his mother says that in his second week he turned up one morning “really anxious about getting a detention and already disregulated” – having trouble managing his emotions – after forgetting both his timetable and the toilet pass he needed to go to the loo outside break times in order to manage his incontinence.
His mother alerted the school that Sam would need support before going into class. But, two hours later, when she returned to check on him, she could hear a child screaming. It was Sam.
“As I went in, he was completely disregulated and surrounded by five adults and he collapsed on the floor. No one had called me,” she said.
The school suspended Sam for five days while they formulated a plan to manage his needs – something she was later told was unlawful. Having tried to push her to accept a move to a pupil referral unit, which caters for children who cannot attend mainstream school, she was then sent the notice of permanent exclusion.
After three months at home, Sam was enrolled at a new school, but it did not review whether he needed any additional support. His grades and class reports were good but, halfway through the year, a girl who had been bullying Sam pushed him and he shoved her back. The school permanently excluded him for assaulting a teacher who then physically restrained him.
“When I got there, he was in floods of tears,” his mother said. “He had lashed out but not in anger. He was scared.”
Sam’s mother has had to give up a senior job in publishing and go on to universal credit while she fights for her son. She is now being supported by Persey.
“When your child is excluded, you don’t have a toolkit for fighting it,” she said. “I wish I’d met [Persey] on day one. I couldn’t believe someone finally understood the injustice of it all.”
Persey said parents – already stressed and exhausted by suddenly having to look after a child with complex needs who is no longer in school – struggle to take on the opaque system that exists around exclusions.
Exclusion is often defended as an essential last resort to keep other pupils and staff safe. Unions say rising exclusions highlight the “desperate need” for investment in SEND and support for families outside schools.
Paul Whiteman, general secretary of the National Association of Head Teachers, said: “Schools work incredibly hard to support children, but they cannot be expected to address the full range of complex root causes that can often lead to disruptive behaviour in the classroom.”
Sam Strickland, the principal of Duston school in Northampton, said: “It is easy to criticise school leaders for excluding but it is an essential tool within a wider armoury of sanctions and support that schools not just should have, but must have.”
He added: “What should a school leader do if there’s a serious physical assault on a colleague or a pupil or if an illegal substance is brought to school and distributed, as just two examples?”
Persey accepts state schools are under-resourced and struggling to deal with increasing numbers of SEND pupils, and exclusion can seem like “the easiest solution” for them: “I have a lot of sympathy for schools trying to deal with behaviour and hang on to stressed staff.”
But, he argues, “it shouldn’t be disabled and marginalised children who are denied access to education because there aren’t the resources to support them”.
Being kicked out of school can have lifelong impacts – most won’t pass the GCSEs they need to get a decent job – and has a huge cost to society as well as the individual. Half of prisoners were permanently excluded, and this rises to 85% in young offender institutions.
Oliver Conway, a child protection solicitor at the law firm Oliver Fisher, joined Persey’s network because he was increasingly seeing cases where exclusions were used as a reason to remove a child into foster care.
Black children are among those significantly more likely to be permanently excluded. Photograph: SolStock/Getty Images
“When a child is excluded, they lose not only their education but their pastoral support and often mental health support as well,” he said.
He argued that the children of his clients often find “identity and purpose” at school. “Who is exclusion for?” he added. “Because it simply does not work for kids.”
Yet Persey says schools should be stepping in to provide more help long before things reach this crisis point. He argues that shutting marginalised children out of school pushes them towards criminals and gangs.
Persey worked with Emma*, the mother of a mixed-race teenager with ADHD, who police said was a victim of serious child criminal exploitation. Persey succeeded in overturning her son’s exclusion from school at a review hearing.
“School has always been one of the biggest protective factors,” Emma says. “I was terrified [that if he was excluded], he would be more vulnerable to these people.”
Persey says his ambition is to end up with no more exclusion hearings to go to. “At the moment, exclusion can be used with impunity,” he said. “We want schools to know that if you permanently exclude, you will be scrutinised.”
