Reliance on Article 8 in course of conduct of isolating children as disciplinary measure
25 August 2025
EBB and others v The Gorse Academies Trust [2025] EWHC 1983 (Admin)
In EBB and others v The Gorse Academies Trust [2025] EWHC 1983 (Admin), the Honourable Mrs Justice Collins Rice gave judgment in a multi-faceted, rolled-up permission and judicial review hearing concerning three high school students’ experiences of being disciplined within their school (“the School”).
The three Claimants spent between 39% to over 50% of the academic year either isolated or suspended (17% to 43% in isolation). The School’s disciplinary policy which permitted isolation/suspension was not challenged – it was accepted that the School was, in principle, entitled to adopt and apply it, and that each instance of disciplinary action followed the policy. Rather, the focus of the claim was on the culmination of the sanctions, arguing that in the context of the impact from the aggregation of the disciplinary action, the decisions were unlawful.
The Claimants raised five grounds for judicial review. This article focuses on Ground 4, which sought to impugn the disciplining of the Claimants with both suspension and isolation on human rights grounds by identifying “a continuing course of conduct over a number of years”. The approach argued by the Claimants was as follows:
- Article 8 is engaged, as the continuing course of conduct (ie: suspension/isolation) interfered with the Claimants’ psychological/moral integrity, personal autonomy and development, impacted their education, and interfered with their interacting and developing relationships with fellow students;
- Such conduct was not in accordance with the domestic law;
- The interference was disproportionate, per the principles set out in Bank Mellat v HM Treasury (No.2) [2014] AC 700 at [74].
Continuing course of conduct
The Claimants argued that there is in human rights law a “course of conduct” principle, drawn from O’Connor v Bar Standards Board [2017] 1 WLR 4833. However, the Court rejected this general proposition for human rights law, finding that it was confined to a particular conundrum arising from procedural decisions in disciplinary proceedings, and that it had been shown no authority otherwise.
The Court did accept that Strasbourg authorities supported that the degree of interference with a human right may vary according to its temporal extent, and may have a bearing on overall harm. However, no “course of conduct principle”, and “certainly not one capable of displacing the ordinary rules of limitation” was found.
Accordance with domestic law
This aspect of the claim relied upon the success of the other grounds of judicial review. The other grounds for judicial review were: (i) alleged breaches of statutory duty imposed by Section 91 of the Education and Inspections Act 2006; (ii) alleged failure to follow the non-statutory guidance ‘Behaviour in Schools: Advice of Headteachers and School Staff (Feb 2024)’; and (iii) an inflexible application of the discipline policy. These grounds and the Court’s approach will be of interest to education law practitioners. However, these were rejected by the Court. Nevertheless, the Court accepted that the rejection of these grounds was not fatal to the human rights claim ([148]).
Engagement of Article 8
The Court noted the Strasbourg authority of Costello-Roberts v UK (1995) 19 EHRR 112 as its starting point, in which it was acknowledged that “measures taken in the field of education may, in certain circumstances, affect the right to respect for private life, but not every act or measure which may be said to affect adversely the physical or moral integrity of a person necessarily gives rise to such an interference”.
The Strasbourg court more recently in FO v Croatia [2021] ELR 271 affirmed the principle that:
“some, but not all, of what happens to young people in school may engage their Art. 8 rights […] the Court clearly affirmed that school discipline is in general intrinsic to education itself, part and parcel of the inevitable interference with a child’s autonomy entailed by sending them to school at all”.
The Court described the present case as “a long way from” the factual matrix of FO v Croatia (where a student was three times verbally abused and insulted by a teacher). It also did not accept the “ambitious attempt” to argue for the engagement of Article 8 by analogy from caselaw on segregation or solitary confinement, noting that “the surrender of a substantial measure of the child’s autonomy and the parents’ control to the school was a critical consideration”. The Court noted that children and parents had opted to go to a school, and the disciplinary policy is part of the ethos a family has chosen (at [164]).
The Court concluded at [165] that there was nothing in Strasbourg or UK case law to allow it to support the engagement of Article 8 in this case, and following the principles in R (Ullah) v Special Adjudicator [2004] 2 AC 323, was not inclined to extend the scope of Article 8 either.
Proportionality
Despite not finding Article 8 engaged, the Court considered the issue of proportionality. It noted that there was no dispute that sanctioning according to the School’s policy pursued legitimate, important, and laudable aims, and that the sanctions were rationally connected to those aims. The Court took into account that the policy pursued avowedly placed the individual best interests of the child at its centre.
No evidence was provided to the Court of the severity of the effects (as compared to FO v Croatia where there was a professional diagnosis of mental/other health conditions caused by that removal). The Court also raised the difficulty that there needs to be “disentangling from the causative impact of the Claimants’ own choices about the behaviour precipitating the sanctions”.
In balancing these factors, the Court noted that Article 8 rights “can and must be qualified”, such as against the School’s duties to protect its staff and students from bullying, intimidation, harassment and violence, which sometimes demands repeated removal of an individual from the classroom environment.
The Court concluded that in all the circumstances, it did not recognise any interference with the Claimants’ rights as having overall been disproportionate in human rights terms.
Commentary
This case reiterates the high bar necessary for Article 8 to be engaged. The mere fact of an interference with a child’s physical or moral integrity, even where it is adverse, will not be enough to engage Article 8. The Court here took a firm approach against developing the law in such a way under Ullah principles. As such, it appears that the general discipline of children, where it falls short of corporal punishment, will struggle to meet the threshold for Article 8 engagement, let alone reach the stage of testing proportionality.
Alice Kuzmenko is a barrister at 1 Crown Office Row.
