GLASGOW, 27th February 2003
The sheriff having resumed consideration of the arguments presented at debate continues the cause de plano to the full debate on 16th and 17th April 2003.
Sheriff A.G Johnston
This case came before me as a pre-debate debate if there is such an animal. It was explained to me that whilst the main debate had been fixed for two days in April there was a relatively narrow fundamental issue which the benefit of a decision at this stage could save the parties some effort. Depending upon my decision in relation to this narrow issue would determine the further progress in the action.
In the first place Counsel for the defenders indicated that the second crave of the initial writ sought an award of damages on behalf of the pursuer who was the mother of the child involved. Counsel explained that in her submission such a crave was incompetent and that she had understood the pursuers agents to have accepted this although it still remained on the pleadings.
The pursuers agent accepted this proposition and sought to delete the second crave and various other averments to which that crave might be related. In the event this was not formally done but since the crave for damages was no longer extant it meant that the debate could be confined to the fundamental issue.
Thus we are left with the first crave which seeks an order from the court to annul the decision of the defenders education authority to suspend the child from school for 14-day period in May 2002 which of course is now a fait accompli.
The preliminary matter which could be dealt with comfortably at this stage was a submission by the defenders counsel that there was no live issue to be tried. Counsel explained that the 14 days suspension from school had since been serviced and that there would be no practical result in the event of the pursuers action being successful.
She took me through the various legislative procedures and it would appear that if the pursuers action was successful any reference in the childs school report and assessment to the suspension of 14 days in May 2002 would be expunged from it. Of course she submitted this would not prevent the narration of the events which occurred that day from remaining on the record but what would excluded from it would be the decision of the authority to suspend the pupil. I understand from the averments on the record that parties are substantially in agreement as to what happened that day. Accordingly if successful, counsel argued, the very best the pursuer could seek to get was to have that suspension removed from the record but not the events which may have given rise to the decision to suspend and the determination of any appeal.
It was suggested by counsel for the defenders that in the particular circumstances of this case there was no issue which required to be dealt with by the court and no practical consequences of that decision. She quoted a number of authorities which led to this proposition and I do not think that as a matter of law the pursuers agent demurred. There is authority for the view that the court will not entertain hypothetical questions for decision. The authority for that is derived inter alia from Macnaughton v- Macnaughtons Trustees 1953 S.C. 387 (although the decision in that case was that the action could proceed and to that extent the opinions there about hypothetical questions for consideration by the court are obiter).
I have no difficulty with the general rule that the courts power is to adjudicate on disputes and these disputes must have a practical result otherwise the court would be a debating chamber. Counsel argued that in the case there is little or no practical result. She explained that if the pursuer was successful in expunging the reference to the 14 day suspension from the childs school record it would have no practical result.
She took me through the legislation. The main parts of this are found in the Schools General (Scotland) Regulations of 1975. In effect if this record, she argued, was of very little practical significance or had very little practical result then the action would be unfounded.
Broadly looked at the regulations provide this framework: Section 4A provides a scheme by which when the authority make a decision to exclude a child they have to tell the parents in writing. The parent has a right of review and the education authority have an obligation to provide alternative schooling (I understand in this case that this was done by the child being educated at home during the suspension so if the lack of 14 days education was to be a practical result it would not apply here).
Under clause 10 the authority must keep a record of the attendance and progress of the child and there is set out there the various things the record should contain. Of course suspension is one of the matters which the record should contain. So it might be argued that one of the practical results of this action would be that the reference to the suspension would be expunged from the record. That, however, said counsel was not the end of the story because if the record itself had no significance or the entries in it had no practical result the test would be satisfied and the action of no consequence.
She further argued that each case had to be looked upon on the peculiar facts of the case and in this case in particular the removal of the reference to a 14 day suspension would have no result at all.
She explained to me further that the use of the terms of this record are limited "&ldots;shall be used only for the purpose of supervising that pupils educational development and of giving adequate advice and assistance to, or in relation to, that pupil&ldots;&ldots;" The record is preserved for a period of five years following the attendance of the pupil at school. When the pupil transfers to another school the record becomes available to the new school.
So, said counsel, the reference on the record to the suspension of 14 days would be the only thing which could be taken out of the record and even from what was left in there would be little practical result because the child is now over 16. He might well transfer school (I understood that was on the agenda at the moment) but since, said counsel, his record shows periods of suspension before and subsequent to this event the expunging of one of the suspensions is not likely to make much difference to his future educational requirements or needs or is unlikely to have any effect on anyone making a decision about his future on the basis of this record.
So taken in the whole context of what this pupils record said the removal of one 14 day suspension is likely to have very little practical effect and to that extent it was an academic exercise for the pursuer to embark on this action.
She went further in anticipation no doubt of the pursuers position in saying that jus because parliament had granted the right of appeal to the sheriff did not per se mean that there was an issue to try if at the end of the day it was academic. So it was in this case she said. The legislation provided for various time limits to apply to these appeals and most of them would only kick in after the expiry for the 14 day suspension. That by itself did not give legitimacy to this action where the over riding principle of no practical consequence or result still applies. In any event the appeal procedure also applies to suspensions and total exclusions that would make them live issues.
In response the pursuers agent in a well argued and succinct submission made two points.
The first is that the mere granting by the legislature of the right of appeal was sufficient to suggest that there was at least some live issue. I do not think that is conclusive of the argument. I would reject that there are certain over riding principles which are in any litigation and the "no practical result" is one of these which transcend legislation.
In the second place he argued that even if he was wrong in that there was a practical consequence here. The practical consequence was that the record would be different and that even if at the end of the day it turned out that this had not actual effect on the childs future nevertheless so long as there was at least the possibility of some effect on the childs future that was sufficient for there to be a case to try.
I have to say that there is much force in this argument. This is not a hypothetical question dependent on various contingencies. There will be a practical result if the pursuer is successful. That result will be that the record be changed. It might well be that standing the rest of the childs school career the expunging of a 14 days suspension will pale into insignificance against the rest of the record the fact that it could make a difference is in my view enough to show that there will be a practical result and that this question is not academic or hypothetical.
It does seem to me that in circumstances where an action or a decision of body is to be reviewed by the appellate tribunal that in itself might suggest that there was a practical consequences namely that the tribunal decision would be quashed. What thereafter the position would be would of course very much depends upon the circumstances. Counsel quoted a number of cases in which the question had been the subject of decision. One of these cases was where a prisoner had sought sometime after the event to bring under review some disciplinary actions of the prison authorities whereby he lost some remission and had a small deduction from his wages. The Court decided that whilst it might be relatively small nevertheless there was a practical result and a decision of a court in his favour would have an effect on his position. Conway v- Secretary of State for Scotland 1966 SLT 689.
In another case Marcos Leisure v- West Lothian District Licensing Board 1994 SLT 129 the court held that there was no practical issue to be decided in an appeal against the refusal of licensing authority to grant a license for a performance of the Chippendales on a date which had long since passed and where there was no claim for damages. The fact that a similar application might be made in the future was not sufficient for there to be a matter upon which the court would require to adjudicate.
No other case seemed to have addressed the point made by counsel in this case so I derived no assistance from other cases decided by this court on matter of education and the rights of parents and children thereanent.
Indeed it might well be in this case that the 14 day suspension whether it remains on the record or not would make little difference to this pupils future schooling the fact that it could do so is in my view sufficient for there to be an issue to try.
In the last analysis I am satisfied that in this case there is or at least could be a practical result if the pursuer is successful in having the suspension expunged from the record. I have therefore decided that the matter can proceed to debate as previously fixed. I do not know what parties wish to do quoad the expenses of this leg of the debate but I shall leave it to them to seek a hearing in relation to them if it is necessary. Quoad ultra the action will simply be continued to the next debate diet on 16th & 17th April.
Act - Nisbet, Solicitor, Govan Law Centre
Alt - Williamson, Advocate, instructed by Glasgow City Council