Child A was 8 when he was accused of stealing food from his boarding school kitchen. We asked the school why the boy was so hungry and whether other boys were also taking food on night-time raids.

Child B was bullied at her prep school, where Mum worked part-time and was reluctant to complain. We advised on alternatives for the girl’s education and she has now settled in happily at her local state primary school.

Child C was accused of sexually assaulting another boy. We advised the accused child’s parents on how best to protect their son and safeguard his ongoing education.

Searching Pupils at School

On 27 September 2012, the DfE issued fresh advice to maintained schools and academies in England. The key points are:

School staff can search a pupil for any item if the pupil agrees (or is too young or otherwise not able to form a valid view).

Headteachers and staff authorised by them have a statutory power to search pupils or their possessions, without consent, where they have reasonable grounds for suspecting that the pupil may have a prohibited item. Prohibited items are:

  • knives or weapons
  • alcohol
  • illegal drugs
  • stolen items
  • tobacco and cigarette papers
  • fireworks
  • pornographic images
  • any article that the member of staff reasonably suspects has been, or is likely to be used:
    • to commit an offence
    • to cause personal injury to, or damage to the property of, any person (including the pupil)

Headteachers and authorised staff can also search for any item banned by the school rules which has been identified in the rules as an item which may be searched for.

School staff can seize any prohibited item found as a result of a search. They can also seize any item, however found, whichthey consider harmful or detrimental to school discipline.

Our view of the law
The DfE Guidance gives some recognition to the fact that the Common Law has long permitted teachers to search their pupils for contraband. But the key issue of "consent" is fudged yet again. The Guidance first says that the pupil must agree to a Common Law search -or the search is unlawful. That is wrong, or at least too simplistic, so a footnote adds that "the ability to give consent may be influenced by the child's age and other factors". That is also wrong, or at least too simplistic. Your Editor holds to the view that a teacher in loco parentis is entitled at Common Law to require a pupil to empty his or her pockets during a reasonable search for contraband. A fortiori, a teacher who reasonably suspects that a pupil is carrying a knife, a firework a small bottle of whisky or a parcel of illegal drugs is entitled to launch some kind of search for the suspected goods. Now we come to the question of consent - not consent to the principle but consent to the method of enforcement.

The principle is clear; the teacher is entitled at Common Law to know ether or not the pupil has brought any of this contraband into school - and (if so) the teacher is entitled to confiscate the contraband and to punish the pupil. But what exactly can a teacher to do, in a legitimate search for this contraband? The DfE's view of the common law position seems to be that the teacher can search the pupil if the pupil agrees, but not if the pupil withholds a consent which the pupil may or may not have the legal ability to give or withhold. That is not helpful advice.

What the Common Law actually says is that a teacher may do in loco parentis exactly what a reasonable parent would do. A reasonable parent can search a very young son or daughter and can demand a truthful answer from a teenage son or daughter. A reasonable parent will not engage in a forcible physical search of a 17 year old, but has the power to punish that child, if he or she does not co-operate. The problem for the DfE of course is that this area of law is all nuance and judgement; what the Department wants is a yes-or-no solution.

The DfE Guidance therefore glosses over all of these nuances and moves rapidly on to the unfortunate rigidity of section 550ZA (of the 1996 Education Act). How far (or whether) section 550ZA improved the Common Law on that is a matter for debate, but we are where we are - and the Guidance sets out the statutory position.

School Uniform Rules

A School Uniform policy is enforceable, but schools should try quite hard not to exclude (expel) pupils for minor breaches of the policy. Other punishments are often more appropriate. When pupils consistently or repeatedly use breaches of school uniform policy as a way of rebelling against the school, short-term and ultimately permanent exclusion may well be justified.