FairWay’s alternative to managing school disciplinary conflict

An article written by Denise Evans, Business Director: Social Services

The United Nations Convention on the Rights of the Child outlines the responsibilities of parents, governments and children to ensure that the rights of children and young people are upheld wherever possible in situations concerning them. These responsibilities are guided by a fundamental principle that laws and actions affecting children should put their interests first and benefit them in the best possible way.

In recent times there have been four relatively high profile stories which have involved school Boards of Trustees becoming engaged in litigation filed with the High Court for judicial review of decisions made about students.

In 2014, Palmerston North Boys High School (“PNBHS”) was the victor in the battle between it and a parent who had challenged the Board’s decision to expel her son, after he had been caught smoking marijuana during school hours. At the time, the President of the School Trustees Association said that the threat of legal action was leaving boards feeling vulnerable and frustrated about how to deal with disciplinary matters. She commented: “There’s a high level of frustration from boards in terms of no-one expects Trustees to be legal experts but there are about 123 Parliament acts that could impact on boards”.[1]

Also reflecting on the situation, Scots College headmaster Graeme Yule said that having lawyers involved in school matters was not always a bad thing, but that many schools cannot afford to seek legal advice. He said “My worry is that the school will choose to do nothing and not take a stand because of the costs involved. If that happens; it will be society that is worse off”.[2]

The legal costs recently faced by St Bede's College were estimated at about $20,000[3] by the lawyer Jol Bates who acted for parents against St John's College Hastings The initial case was brought by the young rowers’ parents for interim orders to allow the students to row at the Maadi Cup and the substantive decision required further Court time.

St John’s College was required to pay the parents’ legal costs and damages of about $24,000[4] in the case of the young man who sought judicial review of the school’s decision to suspend him for having long hair which contravened the school’s “hair rule”.[5]

In the PNBHS case, the Board was awarded $25,000 as a contribution to the costs incurred by the school. The PNBHS lawyer said[6] that the costs awarded were about half of the actual costs incurred by the school. The parent bringing the proceedings also no doubt had to pay her own legal costs in addition to those awarded against her.

There is no doubt that going to Court usually ends up costing all parties some money — win or lose, but it could be argued that the greater cost is the effect that such litigation has on the child or young person who is at the heart of the dispute/litigation.

The High Court Rules contain provisions for restriction on access to court documents and publication of hearing outcomes. Rule 3.12(3) specifies a list of enactments where there are restrictions on access to documents in proceedings under those enactments. The Court also has the power to restrict publication of decisions of matters heard in chambers and therefore it would be possible for proceedings in respect of Board of Trustee disciplinary decisions to have restricted access conditions. In respect of the PNBHS case, the names of the child and his parents were not published, however that is not to say that many of the general public would not know who that young person was.

In respect of the young people at St Bede’s and St John’s their names and stories were published widely throughout New Zealand and internationally. Their pictures were screened in both social and other media – which notoriety neither served to protect the young people involved nor, necessarily, to send the behavioural message the schools wished to promote. One can only speculate on the impact such notoriety will have in the future for them. The publication of the young people’s names and photographs may in fact be a breach of number of the Articles in the UN Convention including Articles 14, 16 and 28.

The UN Convention also states that children have a right to have their say in decisions that affect them and to have their opinions taken into account.

Legal costs are only part of the story. It is also well known that there is a significant human cost for anyone who is involved in litigation, which includes the time needed to prepare and or respond to the proceedings, the time spent preparing for and attending at the Court hearing and the anxiety of the wait for a decision from the Judge. For one party the decision will not be what they sought and it is never possible to be certain of what the outcome will be.

For example, an earlier PNBHS case brought before the High Court in 1990 was decided against the school in relation to the decision to expel two fifth and sixth form members of the school ski team who allegedly drank alcohol whilst away at a secondary schools competition.[7] Often the decision is not the end because decisions have to be implemented and sometimes they are appealed.

All decisions that require one party to pay money to another party show how quickly money that could undoubtedly be so much better used in providing education and support for students can be diverted and achieve very little for anyone.

Since 1989, concerns about young people’s behaviour have been addressed through private dispute resolution mechanisms, namely family group conferences and closed Youth and Family Courts. These processes also require participation from the young people and follow restorative justice practices of acknowledgment and atonement.

In the PNBHS situation, if the young person had been charged with possession of marijuana, his case would have been referred for a Family Group Conference and resolved in the Youth Court. The Children Young Persons and Their Families Act 1989 expressly prohibits the publication of any of the outcomes of a Family Group Conference and of the identity of the young person who is involved in the proceedings. The same would have occurred if the St Bede’s students had been charged with any offence.

In respect of court proceedings involving children, Section 11B and 11C of the Family Courts Act 1980 set out the rules relating to the publication of proceedings involving children and in doing so describes the protection that is in place to ensure that the identity of the child is protected. Interestingly section 11B (4) (a) (ii) (D) prohibits the publication of the name of any school that a child or young person attends.

In view of all of this, is it time for a different process to be put in place for the review of Board of Trustee decisions? Public law expert and commentator Mai Chen rightly states, “There are other non-judicial public law tools, but a complaint to an Ombudsman would take three-six months”.[8] Ms Chen also commented, “What is clear is that, if the [St Bede’s] parents had not had the means to get a court injunction, their boys would not have rowed at the Maadi Cup”.[9] But is there another option?

As from 31 March 2014, any parent who has a dispute with another parent about the care arrangements for the children is required (unless the case is urgent for safety or other reasons) to attend mediation before instituting court proceedings[10]. This service is called Family Dispute Resolution (“FDR”). The Family Court also has the ability to refer parents to attend mediation after Court proceedings have been commenced[11].

FDR does not prevent parents applying for urgent interlocutory relief in circumstances where a need can be substantiated. Similarly if parents do apply for an interim order they are not prevented from attending FDR mediation.

FDR provides the parents and/or other caregivers with the opportunity to discuss their quite often competing concerns, views, proposals, and intentions for their children in a confidential space with an impartial facilitator. Where possible, the parties work towards joint resolution of disputes with the overriding focus being on the best interests of their children.

In view of the competing interests arising in the circumstances of school disciplinary matters – including those of behaviour guidance, precedent setting, respecting individuality, and the right of children and young people to be heard – and also in view of the costs financially, personally, and in terms of education outcomes which can arise from these matters, mediation undoubtedly has much to offer in this setting also. FairWay is a Supplier of the Family Dispute Resolution Service. Over 95% of cases that have been referred to mediation have resulted in agreement.

FairWay can provide mediation and other assistance for disputes involving children who are the subject of school board disciplinary disputes. The advantage for schools and parents would be a reduction in costs for both parties and the opportunity for the school and parent to work collaboratively to ensure that the needs of the child or young person were the focus of the discussion. This could include addressing the disciplinary issue as well as consideration of how the child is to continue to receive the guidance and education that he or she will need to be successful as an adult.

If this approach was adopted, it could be designed so any child or young person could have an advocate appointed who would be able to support the child or young person to have their views heard which would be consistent with UNCROC.

[1] Dominion Post 16/5/2014

[2] Ibid

[3] Idem

[4] Idem

[5] Battison v Melloy & Anor [2014] NZHC 1462

[6] Christchurch Press 25 March 2015

[7] M and R v S and Board of Trustees Palmerston North Boys High School; 1990 High Court Palmerston North, McGechan J

[8] The New Zealand Herald Mai Chen: St Bede’s decision raises questions 25/03/2015

[9] Ibid

[10] Care of Children Act 2004 section 46E

[11] Care of Children Act 2004 section 46F