St Christopher School (Letchworth) Ltd v Schymanski & Anor [2014] EWHC 2573 (QB)

[2014] EWHC 2573 (QB)

Case No 0QZ11638

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

Venue Royal Courts of Justice, Strand, London, WC2A 2LL

Date 30/07/2014

Before

MR JUSTICE HOLROYDE

Between

ST CHRISTOPHER SCHOOL (LETCHWORTH) LIMITEDClaimant

(1) DOCTOR PAUL SCHYMANSKIDefendants

(2) DOCTOR ROSE RAODefendant

Ms Anna Dilnot (instructed by Farrer & Co) for Claimants

The Defendants in person for in person

Hearing Hearing dates: 18 th– 28 th March, 2014

Judgment

Mr Justice Holroyde :

[1]Between September 2007 and April 2010 the Defendants’ sons Josef, Johann and Frank attended the Claimant school. In these proceedings the School claims unpaid fees for all three boys for the spring and summer terms 2010. By their Defence and Counterclaim, the Defendants deny any liability to pay those fees, and seek to recover loss and damage which they say they have incurred as a result of the School’s breaches of contract.

[2]Each of the defendants is a medical doctor and practises as such. They are husband and wife. In view of the allegations which they make of racial discrimination, it is relevant to note that Dr Rao is ethnic Kenyan, whilst Dr Schymanski was born in Germany and is white. For convenience I shall refer to them collectively as “the Parents”. Josef was born 31st July 1998, Johann was born 8th May 2000, and Frank was born 16th October 2001. For convenience I shall refer to them collectively as “the Boys”.

[3]Over the course of several days, I heard evidence from a number of witnesses. The School called Richard Palmer, the Head of the School; Emma-Kate Henry, the Deputy Head at the material time (though no longer at the School); Susan Rix, the Head of the Junior School; Louise Robb, a teacher; Bryan Anderson, a teacher; Paul Kelly, a teacher (now employed at a different school); Isobel Ellerby, who was formerly the Head of Individual Needs at the School and had completed a postgraduate course on the role of a “SENCO” or special educational needs coordinator (she was previously known as Pat Themistocli, and was referred to by that name in the relevant correspondence); Armande Fryatt, a Special Educational Needs teacher; Jane Miller, a teaching assistant; Carolyn Dorrington, the School’s nurse; William Hawkes, the School’s Bursar; Adam Caller, the director of Tutors International; and Arthur House, a private tutor. Each of the Parents gave evidence, and they called as a witness Stephen Cresswell, a private tutor. None of the Boys gave evidence.

[4]I was assisted by opening addresses by Ms Dilnot and Dr Rao, and by written closing submissions on each side, all of which I have carefully considered.

[5]The Parents were legally represented at earlier stages of these proceedings, but represented themselves as trial. Both, clearly, are intelligent and articulate professional persons. By agreement between themselves, and with the approval of the court, Dr Rao acted in effect as spokesperson for both, and conducted the cross-examination of witnesses. Dr Schymanksi was not present throughout all the proceedings, principally because of his involvement in the care of one of the boys who is now studying in another country, but it was made clear that each of the Parents consented to the other acting for them both. I have no doubt that Dr Rao was well able to represent both herself and her husband, and Dr Schymanski suffered no disadvantage as a result of his absence from time to time. Dr Rao sometimes had difficulty in formulating her questions, and in finding relevant documents in the bundle, but I endeavoured to assist her with the former and Ms Dilnot was usually able to assist her with the latter. In my consideration of the evidence and issues, I have made generous allowance for the fact that the Parents were representing themselves. In particular, I have been careful not to ascribe disproportionate significance to every failure by the Parents to challenge particular evidence, or to put a specific allegation, in cross-examination, because it seems to me that in many instances such failure arose from a lack of familiarity with court room procedure (though I did more than once explain to Dr Rao the need for her to clarify, and to give a witness an opportunity to respond to, a particular allegation). In a further attempt to assist the Parents I allowed them longer than I would have allowed counsel for the preparation of their written closing submissions. The School:

[6]I begin with a word about the School. The evidence shows that it is an independent school with a particular ethos. There is no school uniform, and staff and pupils address one another by their first names. It caters for pupils of all ages, a feature which the Parents told me they particularly had in mind when they selected it. Part of the School’s underlying philosophy is said to be to promote understanding between pupils of different cultures and religions, and I was told that about one-quarter of pupils describe their ethnic background as something other than white British.

[7]The School was at the material time subject to the requirements of the Education (Independent Schools) Regulations 2003, made pursuant to s157 of the Education Act 2002 and subsequently replaced by later Regulations. The 2003 Regulations made provision for, inter alia, the quality of education provided, and the welfare, health and safety of pupils. As to the latter, regulation 3 required the School to draw up and implement a written policy to prevent bullying, and to safeguard and promote the welfare of pupils. It also required the School to have and to implement a satisfactory policy on first aid, and to deploy staff to ensure the proper supervision of pupils. The School does have policies in all the areas in which it is required to do so, and it is not disputed that those policies comply with the School’s statutory obligations. The Parents accept that suitable policies were in existence, but allege that the School failed properly to implement them. As Dr Rao put it in her opening address, everything was in place but there was a failure of due process, and it was that failure which “brought about the observed difficulties”. In their closing submissions, the Parents emphasised the statutory responsibilities on all who work with children to keep the children safe. That, of course, is uncontroversial. The principal issues in the case are factual issues as to whether members of staff failed to comply with their responsibilities.

[8]Regulation 7 required the School to have a written complaints procedure which, amongst other things, “(d) allows for a complaint to be made and considered initially on an informal basis”. The regulation went on to require that the procedure – “(e) where the parents are not satisfied with the response to the complaint made in accordance with paragraph (d), establishes for the complaint to be made in writing; (f) where the parents are not satisfied with the response to the complaint made in accordance with paragraph (e), makes provision for a hearing before a panel appointed by or on behalf of the proprietor and consisting of at least three people who were not directly involved in the matters detailed in the complaint; (g) ensures that, where there is a panel hearing of a complaint, one person will be independent of the management and running of the school; (h) allows for the parents to attend and be accompanied at the panel hearing if they wish.”

[9]Again, the Parents accept that the School’s complaints procedure did comply with those statutory requirements, but criticise the manner in which the procedure was operated in the circumstances of this case.

[10]The guidance as to the welfare of pupils was at the material time provided by the Department for Education and Skills in its document “Safeguarding Children and Safer Recruitment in Education”, which came into effect in January 2007 (again, it has subsequently been replaced by guidance given in 2010). This referred to the duty of local authorities, pursuant to s47 of the Children Act 1989, “to make child protection enquiries if they have reasonable cause to suspect a child in their area is suffering or is likely to suffer significant harm” – “harm” being defined by s31(9) of that Act as meaning “ill-treatment or the impairment of health or development”. The guidance further provided (by paragraph 5.12) for local authorities to have designated officers to give advice and guidance to schools and to liaise with police and other agencies. As will be seen, the relevant local authority department was Hertfordshire Children Schools and Family (“CSF”), and the relevant officer was Jane Hardy.

[11]The School’s child protection policy included at paragraph 8 the following provision for dealing with reports that a member of staff was guilty of abuse of a child:

“The Headteacher will not investigate the allegation itself, or take written or detailed statements, but he/she will assess whether it is necessary to refer to Children, Schools and Families in consultation with the Child Protection School Liaison Officer or the Social Work Manager. If the Headteacher decides that the allegation warrants further action through Child Protection Procedures he/she must immediately make a referral … If it is decided that it is not necessary to refer to Children, Schools and Families the Headteacher will consider whether there needs to be an internal investigation.”

[12]The School also had a policy for individual needs, which provided amongst other things for pupils with special educational needs, defined as having “a learning difficulty that calls for special educational provision to be made for them”. One of the objectives of the policy was “to ensure that all pupils with Special Educational and other particular needs receive the support they need to become independent learners who work alongside their peers, achieving their full academic potential”. The policy went on to provide that learning support would be provided by, amongst other things, screening and assessment to identify difficulties and referral to other professionals as necessary. A further aspect of the policy was to involve parents in implementing a joint learning approach at home.

[13]At the material time, the Race Relations Act 1976 was in force. It created torts of direct and indirect discrimination on grounds of race. So far as is material for present purposes, that Act provided by section 1:

“(1) A person discriminates against another in any circumstances relevant for the purposes of any provision of this Act if – (a) on racial grounds he treats that other less favourably than he treats or would treat other persons”

Section 3(1) defines “racial grounds” as meaning “any of the following grounds, namely colour, race, nationality or ethnic or national origins.” “any of the following grounds, namely colour, race, nationality or ethnic or national origins.”

[14]The School’s policy on Dealing with Racial Issues stated that all incidents of reported possible racism or perceived racism would be investigated thoroughly and the brief details and outcome of the investigation recorded. It went on to say that if the investigation found that an incident was serious, it would be recorded in a log of racist incidents. The School’s case is that there have not been any serious racial incidents, and there is therefore no such log entry. The School has however kept a log of “incidents deemed not to be serious racial incidents but where a racial element exists or was perceived”. That log does not include any entry which relates in any way to any of the Boys. The contractual framework:

[15]The Boys had previously been pupils of Applecroft School. They joined the School at the beginning of the academic year 2007-08, when Josef was in Year 5, Josef in Year 3 and Frank in Year 1. The School offered places at the end of June 2007. In Frank’s case, the offer was conditional, because the School had been concerned to note that Frank had been rather uncommunicative when he visited the School and joined the Reception class: the School’s letter therefore said that Frank’s place was offered “with the proviso that a Speech and Language therapist or Educational Psychologist will be consulted and his place here reviewed should we feel we are not able to meet his needs”. The parents accepted that condition by a letter dated 7th August 2007.

[16]On 31st August 2007 both Parents signed forms accepting the offers of places for all three Boys, and acknowledging that they were individually and jointly responsible for payment of the School’s fees. The Parents agreed to the School’s Terms and Conditions. By clause 3(d) the Parents undertook to pay the fees which apply from time to time, those fees being due and payable before the commencement of the relevant school term.

(e) the School stipulated:

“We reserve the right to refuse to allow your child to attend the School or to withhold any references while fees or supplemental charges remain unpaid. Simple interest may be charged on a day-to-day basis on fees which are unpaid. … You consent to our informing any other school or educational establishment to which you propose to send your child of any outstanding fees”

. By clause 4, the School required a term’s notice in writing, or the payment of a term’s fees in lieu of notice, if a child was to be withdrawn from the School.

[17]The School’s obligations were set out in clause 7. These included:

“(b) While your child remains a pupil of the School, we undertake to exercise reasonable skill and care in respect of his or her education and welfare. This obligation will apply during school hours and at other times when your child is permitted to be on School premises or is participating in activities organised by the School. … (e) Unless you notify us to the contrary, you consent to your child participating, under proper supervision, in contact sports and in other normal sports and activities including rock-climbing, hill-walking, camping, canoeing and sailing, which may entail some risk of physical injury. … (i) We shall monitor your child’s progress at the School and produce regular written reports. We shall advise you if we have any concerns about your child’s progress but we do not undertake to diagnose dyslexia or other specific conditions. A formal assessment can be arranged either by you or by the School at your expense. You may be asked to withdraw your child without being charged fees in lieu of notice if in the opinion of the Head the School cannot provide adequately for your child’s special educational needs. … (i) If you have cause for concern as to a matter of safety, care, discipline or progress of your child you must inform the School without delay. Complaints should be made in accordance with the School’s Complaints Procedure.”

By a separate definition clause, the “School’s Complaints Procedure” refers to “the School’s procedure for the review of the treatment of serious disciplinary matters and related decisions as amended from time to time, a current copy of which is available on request from the School”.

[18]By clause 10, the Parents consented to the school supplying information and a reference in respect of a child to any educational establishment which the child proposed to attend. The clause continued: “Any reference supplied by us shall be confidential. We will take care to ensure that all information that is supplied relating to your child is accurate and any opinion given on his/her ability, aptitude for certain courses and character is fair. However, we cannot be liable for any loss you are or your child is alleged to have suffered resulting from a reference or report given by us”.

[19]Clause 15 provided for mediation.

[20]It is important to note that although the terms and conditions of each contract were of course identical, there were three separate contracts between the parties, one in relation to each of the Boys. The Parents at times tended to conduct the proceedings as if an act or omission in relation to one boy would necessarily affect the School’s performance of its contracts in relation to the other two. That is not an assumption which can be made. The issues as pleaded:

[21]The School’s claim is for the unpaid fees for the spring and summer terms, amounting in total to £23,231.10, together with interest thereon. It is not in dispute that the fees remain unpaid. The School does not make any claim, although under the agreements it would be entitled to do so, for any fees in lieu of notice. Thus the substantial issues between the parties relate to the matters raised by the Parents by way of defence and counterclaim.

[22]By paragraph 5 of the Defence and Counterclaim, the Parents contend that clause 7(b) amounts to a warranty and/or condition of the contract, “and compliance by the Claimant to the same went to the fundamental root of the contract, permitting the Defendants to repudiate and/or rescind the contract”. By paragraph 6, the Parents contend for eleven implied terms of the contract (almost all of which are denied by the School) as follows:

“(a) the [School] would have in place reasonable policies to protect pupils from harm, in relation to child protection, protection from bullying, from inappropriate behaviour from staff; (b) the [School] would consistently and reasonably apply the policies it had in place; (c) the [School] would provide an effective and reasonable pastoral system to protect the wellbeing of pupils; (d) the School staff would communicate effectively and reasonably with the [Parents] in relation to [the Boys’] education and welfare; (e) to inform, communicate with and make appropriate referrals in relation to the [Parents’] children who attended the School; (f) the [School] would provide the [Parents] with all written documentation and information in a timely and reasonable fashion in relation to any accidents, incidents, bullying or other issues which may have impacted upon [the Boys’] education or wellbeing; (g) the [School] staff would involve external agencies, such as the local authority social services department and such regulatory agencies as were appropriate to safeguard and protect [the Boys’] education, welfare and wellbeing; (h) the [School] staff would not inappropriately and/or incorrectly diagnose medical or psychological conditions [the Boys] may have suffered from; (i) the [School] would have in place a reasonable, efficacious and independent system for resolving complaints between School staff and the [Parents]; (j) the [School] would provide a positive learning environment which would be beneficial and enjoyable to the [Parents’] children; (k) the [School] would provide a satisfactory standard of education, pastoral care and support for the wellbeing and welfare of [the Boys] when they were at the School’s premises and/or when the School staff were acting in loco parentis.”

[23]By paragraph 44 of the Defence and Counterclaim, the Parents allege that the School is not entitled to recover the unpaid fees because it acted in fundamental breach of contract, entitling the Parents to rescind and/or repudiate the contract. 21 allegations of breach of contract are alleged, all of which are denied:

“(a) failing to have in place an adequate system for the identification and amelioration of special educational needs; (b) failing to arrange for the proper assessment of Frank’s special educational needs; (c) failing to properly communicate with the [Parents] in relation to Frank’s special educational needs; (d) failing to permit the [Parents] to meet with the School’s special educational needs coordinator; (e) failing to assist Frank by deploying the special educational needs coordinator to assist him; (f) inappropriately involving a social worker to assist Frank in relation to his needs; (g) failing to properly apply the School’s SEN policy to Frank; (h) inappropriately diagnosing Frank with Asperger’s Syndrome; (i) failing to meet Frank’s pastoral and educational needs and failing to protect his welfare and wellbeing; (j) failing to have in place a proper system for protecting Johann from physical injuries; (k) failing to adequately communicate with the [Parents] in relation to the physical injuries caused to Johann whilst in the School staff’s care; (l) failing to have in place an adequate investigatory and reporting system for injuries caused to pupils generally and Johann specifically; (m) failing to speak to Johann about the physical injuries caused to him whilst in the School’s care, reassure him and take steps to prevent such incidents happening again; (n) failing to offer him appropriate care when he was struck by the cricket ball as averred above and when he injured his back and was sent back to the class as averred above; (o) failing to prevent racial bullying carried out by other pupils in relation to Josef and failing properly to apply the School’s anti-bullying policy; (p) failing to provide Johann with a safe environment and failing to prevent harm to his welfare and wellbeing whilst under the School’s care; (q) failing to provide Josef with a positive learning environment and failing to respect his and the [Parents’] wishes as to which teachers should reasonably teach him; (r) by permitting Mr Kelly to call Josef an “idiot” and by failing to take any adequate or timely steps to prevent this re-occurring; (s) by failing properly to investigate malpractice by Mr Kelly when calling Josef an idiot; (t) by undermining the welfare, happiness, wellbeing, self-confidence and self-esteem of [the Boys] and by failing to take steps to promote their education and welfare; (u) by failing to address reasonable concerns raised by the [Parents] and failing reasonably to communicate with the [Parents], thereby undermining the necessary relationship of trust between parents and a school.”

[24]By their counterclaim, the Parents allege that those breaches of contract have caused them loss and damage, in particular because they have suffered loss of earnings, and incurred the costs of engaging home tutors, to provide the boys with education following their withdrawal from the School. Damages are also claimed for alleged “distress, upset, inconvenience and considerable anxiety about their sons, their education, welfare and well-being. In particular, the Defendants were distressed and upset to see their sons Josef and Johann develop factitious illness as an emotional response to avoid the harmful environment of the School and to see Josef develop urinary incontinence as a result of being placed at the School”.

[25]The Parents’ pleaded case in relation to Frank acknowledges that Frank, although of good intelligence, had problems with his speech before and during his time at the School. The Parents contend that this was a problem only affecting his expressive speech. They did not view it as a matter for serious concern because both Dr Rao and an older son had experienced similar difficulties in their early years, but had soon commenced normal speech and had suffered no lasting handicap. Their belief was that Frank understood everything, and there was nothing more than a speech delay. In their pleading, the Parents criticise the School’s “insistence” that Frank be assessed by “a speech and hearing specialist”, and condemn that assessment (in December 2007) as “unprofessional, inappropriate and an unnecessary experience for Frank”. They further allege that around the time when a second assessment (by Catherine Ornstein) was organised, “Frank’s behaviour began to deteriorate, he showed signs of distress, he regressed in terms of his social development, he began bed wetting and was unable to sleep. He experienced loss of appetite and blinked excessively”. The Parents allege that Frank’s teachers reported inappropriate and odd behaviour by him towards girls, which the Parents say “was not observed to be the case at home or elsewhere”. The Parents further complain that they were not allowed to meet Armande Fryatt, that they were not made aware of why Pat Themistocli became involved with Frank, and that the School staff wrongly diagnosed Frank as having Asperger’s Syndrome. All these matters of complaint are alleged to amount to breaches of contract by the School.

[26]The Parents’ pleaded case in relation to Josef is that he “experienced a very difficult relationship” with his teacher Louise Robb, who informed the Parents that Josef required anger management counselling but would not say why. The Parents asked for Josef to be moved to a different class, but Mrs Rix refused. However, he was transferred to another class following a meeting with Mr Palmer at a time when Mrs Rix was away. It is alleged that Josef also had a difficult relationship with Paul Kelly, a PE teacher, and began to avoid Mr Kelly’s lessons by, for example, complaining of a sore stomach. It is alleged that in the spring term 2009 Dr Schymanski observed Mrs Robb “shout aggressively at Josef”. Then in the autumn term Josef was involved in a scuffle with Hamish Robb, Mrs Robb’s son who was a pupil at the School, for which “Josef was disciplined but the other boy was not”. It is alleged that Mr Kelly called Josef an “idiot” in front of other pupils. Josef was placed in Mr Kelly’s class for the year 2009-10 against the express wishes of the Parents.

[27]The Parents’ pleaded case in relation to Johann is that he sustained a number of injuries at the School, many of which occurred when he was being supervised either by Mr Kelly, or by teaching assistant Jane Miller. It is alleged that Johann was pushed out of a tree by another pupil but that the School conducted no investigation. It is further alleged that “throughout 2008 to 2009 Johann was subject to racial bullying by other pupils”, though the only specific allegation made is that he was called “poo face” by a pupil whom the Parents do not identify. Finally, it is alleged, Johann suffered a fractured collarbone when “someone landed on him heavily”, but there was “no or no adequate investigation of this incident”.

[28]As will be apparent from that summary, the principal issues between the parties are factual issues as to the allegations made in the Defence and Counterclaim. It is necessary for the court to decide whether the School did act in breach of any of the three contracts between the parties; whether any such breach discharged the relevant contract(s) and so entitled the Parents to withhold the fees otherwise payable in respect of the Boy(s) concerned; whether any such breach caused the Parents loss and damage; and if so, whether that loss and damage is recoverable.

[29]I turn now to the evidence about each of the Boys. I shall endeavour, in relation to each boy in turn, to summarise this chronologically to the end of 2009, though this is not always possible. Inevitably, I will have to go into some detail. I will indicate many of my findings of fact at the relevant point in the narrative, and others at a later stage of this judgment. Frank

[30]The evidence which I heard about Frank can be summarised as follows.

[31]As I have already noted, the offer of a place at the School was subject to the proviso of a consultation with a speech and language therapist or educational psychologist. Dr Rao in her reply dated 7th August 2007 agreed that Frank needed help and said she was “happy to have this formally assessed as a way of finding the best way forward to assist him”. She noted that English was not the first language of any of the Boys, and referred to a similar delay in the speech development of the oldest brother.

[32]Frank’s difficulties had indeed been noted at his previous school, Applecroft. In a report dated July 2007 it was noted that Frank had not spoken much of any language when he started at that school in September 2006. He had settled in well to school, but staff were initially concerned “about aspects of his behaviour and about his inability to understand and communicate with those around him”. It was also noted that on a couple of occasions Frank had arrived at school upset but had been unable to explain the cause of his distress. By the end of the school year, Frank’s “basic skills are still very limited and this remains a concern”.

[33]Frank’s Year 1 class teacher Mrs Holland asked Armande Fryatt, a special needs teacher, to observe him in class, saying she suspected he might be on the autistic spectrum. Miss Fryatt did so. The Parents strongly criticise the fact that they were not told this was happening. On 10th November 2007 Miss Fryatt reported the results of her observation. She said “Because Frankie has speech and language problems, it is difficult to ascertain whether the difficulties he displays are due to(1) communication problems of not understanding the language or

(2) communication problems due to an autistic disorder. In my view, Frankie showed problems of both types”. She recorded that Frank did not appear to have the cognition to cope with the tasks he was given in class, and he did not appear to understand what was going on around him. When she heard him read, he “was able to decode every word but had no idea what the story was about”. His speech was very weak, and he needed to see a speech therapist for assessment and follow-up work “in order that he learns to speak in sentences”. Miss Fryatt ended by saying “I am still concerned about Frankie’s cognitive abilities and would prefer him to be assessed by a paediatrician if we were given the opportunity”.

[34]Miss Fryatt gave evidence about this. She is well-qualified and experienced as a SEN teacher. Her evidence, which I accept, was that the School provides a high level of support for pupils with learning difficulties; that it was a completely normal thing for her to be asked to observe a pupil in class to ascertain what difficulties that child might have and how the child might be assisted; and that it was not usual to notify parents when she was asked to observe a pupil in class. As to the latter point, I note in passing that nothing in the evidence I heard suggested that other schools adopted a different approach. I cannot accept the submission of the Parents that by observing Frank without telling his parents that she was doing so, Miss Fryatt breached Frank’s human rights.

[35]Miss Fryatt observed Frank in his class, noted Frank’s difficulties, made no assessment and gave no diagnosis but recommended speech therapy and assessment by a paediatrician. She said in cross-examination that before her observation she had not seen the report about Frank from Applecroft School. She summarised her observations (which were in a number of respects similar to the assessment of Frank made by Applecroft School, to which I have referred at paragraph 30 above) as follows:

“I observed … that he had communication problems, that he wasn’t interacting with the other children, that he didn’t really seem to understand what was going on around him, and based on my experience, having worked with children on the autistic spectrum, he showed similar difficulties to those that I have worked with before.”

[36]Miss Fryatt made no diagnosis of any condition, whether Asperger’s Syndrome or anything else. Before me, the Parents accepted that was so (and did not challenge the evidence of Mrs Rix that Frank was not treated as a child on the autistic spectrum). It is clear from the unchallenged evidence that Miss Fryatt recommended assessment by a paediatrician as well as speech therapy. Insofar as reference was made by her to the possibility that Frank may suffer from Asperger’s Syndrome, it seems to me that it was an entirely reasonable observation for her to make of a matter which in her opinion needed specialist consideration.

[37]The Parents, however, were very unhappy about the reference to the autistic spectrum. They accept that Frank had difficulties with his expressive language, but maintain that his level of understanding was at least average, and probably above average. They also maintain that they would have been able to assist the School in dealing with the expressive difficulties, and that the School was wrong to decline their offers of assistance.

[38]On 26th November 2007 Miss Fryatt wrote to the Parents referring to a conversation they had had with Mrs Rix and recommending a speech and language assessment. She recommended Mrs Suzanne Fletcher, and gave her phone number. She said it would be necessary for the Parents to take Frank to Mrs Fletcher’s clinic in Cambridge. The Parents agreed to this, though Dr Rao in her evidence said that they only agreed “to assist the school”.

[39]On 5th December 2007 Mrs Holland in her end of term report praised Frank’s progress but made clear that there were still significant difficulties with his speech and language which made it hard for him to access the full curriculum. The report reiterated the desirability of assessment by a speech therapist.

[40]On 10th December 2007 Frank was seen by Suzanne Fletcher at her clinic in Cambridge. Dr Schymanski took him there, by car. Regrettably, they arrived 50 minutes late for Frank’s one-hour appointment. In their respective witness statements each of the Parents condemned this assessment as “a disaster”, but neither mentioned the fact that Frank arrived for it very late. When asked about this in cross-examination, Dr Schymanski told me that the delay was caused by his satellite navigation system misdirecting him, though Dr Rao had appeared to say that he had only belatedly remembered the appointment. Be that as it may, the inevitable consequence was that Mrs Fletcher was not able to spend as much time with Frank as she had wanted. In her report dated 23rd January 2008 she noted that Frank had shown similar delay in all 3 languages which the family spoke, and therefore did not think that lack of exposure to English was the cause of his difficulties. She recorded that she had been unable to engage Frank in conversation, and he had been unable for example to tell her how old he was. She noted that Dr Schymanski had told her “that Frank finds it difficult to hold a conversation at home”. Importantly, she recorded that Frank had been unable to score any test item, even using the pre-school form of assessment, and she had therefore stopped formal testing. She concluded that Frank had “difficulties with both verbal comprehension and expressive language skills” and that he “will need considerable help in school to enable him to access the curriculum”. In a covering note to Miss Fryatt, Mrs Fletcher referred to the late arrival and said that it had prevented her from observing or engaging Frank in play. She thought Frank probably needed a full assessment by an educational psychologist.

[41]Dr Schymanski did not accept that his late arrival was the reason why a full and successful assessment could not be carried out. He said that Mrs Fletcher had 10 minutes to engage with Frank but “did not manage to find a way to the boy, to communicate with him”. On that basis, he said, it was his opinion that the assessment would not have worked even if they had arrived on time. He also said it was not the case that Frank was unable to score on any test item: rather, he said, it was that Frank was unwilling, “because he was not willing to cooperate with the lady”, though Dr Schymanski did not explain why Frank should have adopted such an attitude. He and Dr Rao are therefore critical of Mrs Fletcher, and complain that she produced an inadequate report.

[42]In my judgment, the Parents’ criticism of Mrs Fletcher’s report is unfounded and unfair. It is unrealistic to suggest that the very late arrival for the appointment made no difference to the outcome. It is also unrealistic to suggest that an experienced speech and language therapist was unable to distinguish between a child who could not score on any test item (even when the form appropriate to a younger age group was used), and a child who chose not to participate. Further, I accept Miss Fryatt’s evidence that such testing as Mrs Fletcher was able to carry out was sufficient to enable her to provide reliable evidence that Frank had verbal comprehension and expressive language difficulties. I also accept Miss Fryatt’s evidence that, based on her own observation of Frank, she too was of the view that he needed considerable help in school to access the curriculum. She said in cross-examination that she did not know at the time of her assessment that both Dr Rao and an older son had suffered delayed language development. She said, however, that she did not think that knowledge of that fact would have affected her observations and recommendation. I accept that evidence: nothing put forward by the Parents has cast any doubt upon it.

[43]I therefore find that in January 2008, when the School received Mrs Fletcher’s report, the School had good reason to be concerned that Frank was a child whose difficulties went beyond a delay in the development of his expressive language. The Parents take a very different view. I can well understand why the Parents, on the basis of their previous experience of delayed language development within the family, were confident that any difficulty would soon resolve, and indeed it does appear that later on Frank’s language did catch up to the expected level and beyond. Nonetheless, there are two important aspects which the Parents have throughout failed to acknowledge: first, the existence of real grounds for concern that Frank’s difficulties did not stem solely from a delay in the development of his expressive language, but reflected some limits on his cognitive ability; and secondly, the risk of harm to his development if nothing was done to help him during the period when his communication difficulties were, amongst other things, making it difficult for his peers to understand him and thus affecting his social development. Dr Rao in her witness statement said that the School “did not believe her” and “totally ignored” her when she said that Frank was following the pattern set by herself and the older son. I do not accept that. In my judgment, Dr Rao may have felt ignored, because the School did not follow the course she wanted; but she was overlooking, as she continued to do throughout her evidence, the additional considerations which I have mentioned.

[44]By the end of Frank’s first year at the School, he had made good progress but was much hindered by his delayed language development. His report dated July 2008 noted that Frank could read fluently but did not always understand what he had read. His speech was often not in sentences, so that other children found it difficult to understand him. He was generally happy, but sometimes had an angry outburst which he could not explain. The report indicated that a further assessment would probably be of great benefit to Frank, as would specific support with his speech and language. The report also made reference to Frank being “a little too fond” of a girl in his class, saying that “he doesn’t accept that she does not want to be hugged all the time!”.

[45]At the end of the following term, Frank’s report of December 2008 painted a similar picture of an able boy who was still hampered by his language development and the related difficulties in his understanding. Mrs Rix noted that Frank still needed support in this area. His class teacher noted that Frank found it difficult to understand verbal instructions and information, sometimes decided not to listen at all, and was finding it difficult to make friends. It is in my view significant that almost a year had now passed since Mrs Fletcher’s report, and that the School had throughout been reporting on the desirability of further assessment, and yet the Parents had taken no steps in that regard, despite their strong criticisms of Mrs Fletcher, and despite their acceptance of the proviso to the original offer of a place (see paragraph 15 above).

[46]On 2nd March 2009 Mrs Rix e mailed Dr Rao, asking her to speak to Frank about his behaviour towards a little girl, who was becoming very anxious about Frank’s hugging and squeezing her. In her reply, Dr Rao acknowledged that “Frank had the same problem at Applecroft”. She said that she had spoken to Frank about it, and he had explained he was fascinated by the workings of the heart and lungs and was checking on the girl’s heart beat. Dr Rao said she had asked Frank to apologise to the girl concerned in return for a reward of 20p, and noted that “his delayed speech is making him feel out of place and sometimes rejected (understandably)”. However, when Dr Rao was asked about this in cross-examination, she denied that she was there accepting that Frank’s communication difficulties were causing him difficulties with social interaction: she blamed any problems of social interaction on the School’s misinterpretation, and poor handling, of the delay in expressive language.

[47]Mrs Rix’s evidence about this was that she was concerned because it was not normal behaviour for a boy of Frank’s age: he was very possessive of the girl, and very physical with her. Importantly, Mrs Rix made clear in her evidence that she had no recollection of Johann touching this or any other girl on the chest. No touching of that sort is reported or suggested in any of the documents which I have seen. In addition, Mrs Rix was concerned that the girl’s mother was unhappy about the attention her daughter was receiving from Frank. Dr Rao put to her in cross-examination that such behaviour did not happen outside the School, and asked if Mrs Rix had not thought that “something else perhaps needed exploring at the School with Frank”. Mrs Rix replied:

“It would be a cause of concern generally, but very hard to think that it was exclusive to the School. Our cause of concern was that we couldn’t communicate with Frankie that the little girl didn’t really want this to happen, and it was - we were not able to explain the social skills to him. It was affection on Frankie’s part, but socially we were unable to explain to him, because he had language difficulties.”

[48]I accept that evidence from Mrs Rix. In my view, it provides not only a convincing explanation of the attitude of the School but also an illustration of why it was important not simply to leave Frank to wait until his expressive language skills somewhat belatedly kicked in. Dr Rao’s contention that Frank displayed no such behaviour outside the School is contradicted by her own reference to a similar problem (her word) at Applecroft.

[49]In cross-examination Mrs Rix accepted that the Parents had told her that Frank was having nightmares and wetting the bed around this time. She said she spoke to teaching staff and assistants to ask if there were any signs of Frank being unhappy, or crying, or not eating, or being reluctant to engage with other children, and none were reported to her.

[50]On 27th March 2009 Frank was assessed by Catherine Ornstein, an independent paediatric speech and language therapist. As to why it had taken so long to arrange that assessment, given the recommendation made by Mrs Fletcher, the School’s case is that the Parents were slow to consent to any further assessment. The Parents’ case, as stated by Dr Rao in her evidence, is that they were always happy to assist, and that the School had delayed in arranging the assessment for reasons which she did not know. I reject that evidence of Dr Rao: in the light of all I have seen and read, I cannot accept that they would have allowed months of unexplained delay in an assessment which they were happy to permit.

[51]Miss Ornstein saw Frank for 2 hours, both Parents being present. In her report dated 1st April 2009 Miss Ornstein noted that the Parents reported rapid progress with Frank’s language during the last year. She had not seen Mrs Fletcher’s report, but said that the Parents had told her that “this assessment was not helpful and was distressing to Frank”. She referred to the family history of delayed expressive language, and noted that because of that history the Parents were confident that Frank would grow out of it, but that “they recognise the delay is causing difficulties for Frank at school and are willing to work with the school in ensuring Frank’s needs are supported in the most appropriate manner”. Miss Ornstein reported that the delayed acquisition of spoken language had affected Frank’s auditory processing and retention skills, which were slow and needed supporting. Her formal testing showed “just how significant an impact Frank’s weak auditory skills have on his ability to demonstrate understanding”.

[52]Miss Ornstein also noted that Frank had told his class teacher that he found it hard to make friends at school. The teacher had reported that his peers found him difficult to understand. He enjoyed playing with the girls in his class, but at times his play was not acceptable to them. Miss Ornstein commented: “Frank’s parents feel he has become stressed by such situations at school and report this has manifested itself by his getting up at night and talking incoherently”.

[53]In her conclusion Miss Ornstein praised Frank’s mature attitude and willingness to persevere. She noted his good progress in the past year with his expressive language skills. She continued: “Now he presents with auditory processing difficulties that are affecting his ability to focus and demonstrate understanding, some specific areas of receptive language delay, plus difficulties with expressive language processing, sentence construction, use of grammar and vocabulary retrieval. Together these difficulties make it hard for Frank to converse with ease with his peer group whose language is at a higher level and delivered more quickly. Frank is aware of what he finds challenging and needs support and reassurance that he can do these things if he takes his time”.

[54]Dr Rao in her evidence disagreed with that assessment. The Parents maintain that Frank had no problems at the time in his social interactions outside the School, and has had no such problems in his subsequent schooling. It is difficult to reconcile that view with Dr Rao’s agreement that there had been “a similar problem” at Applecroft. In any event, the Parents’ adverse views do not undermine Miss Ornstein’s report and assessment, which I accept. There is a clear logic in the link drawn by Miss Ornstein between Frank’s language difficulties and his problems with social interaction, and nothing in the evidence which I have heard leads me to doubt that logic.

[55]Miss Ornstein recommended a class-based observation assessment to enable her to see how his difficulties affected Frank in class and to support school staff in implementing strategies to support him. Her e mail of 20th April 2009 to Carly Smith, Frank’s class teacher records the Parents’ agreement to that course. The assessment was initially arranged for a date in April, but was postponed because the Parents reported that Frank had been distressed at school, and Miss Ornstein agreed that it was not an appropriate time to assess him. It eventually took place on 22nd June 2009, and Miss Ornstein provided her second report on 24th June. She noted that at break time she had seen Frank run after a girl: he was spoken to by a teacher, but “later approached the girl, held her shoulders and licked her cheek before running off”. Miss Ornstein reported “very pleasing progress in all aspects of communication”, and noted that it was pleasing to see him at ease in class and at play “after previous concerns about him experiencing distress at school”. She expressed the opinion that Frank required “support with his auditory and language processing skills to prevent these from adversely affecting his access of the curriculum”, and made a number of specific recommendations for Frank’s support which she had discussed with Miss Smith. She recommended that Frank’s language development should continue to be monitored.

[56]In the following school year, 2009-10, Frank’s class teacher was Bryan Anderson, from whom I heard. His evidence about that academic year as a whole was that Miss Ornstein’s recommendations had been implemented, and Frank made good progress. He said that Frank “did have some difficulties with his speech, but it did improve really well over the course of time that I taught him, and using some of the suggestions that Catherine [Ornstein] had given me”. He went on to say in his evidence that he did have to differentiate Frank’s work to make sure he could access the curriculum as well as he could, and Frank was able to do so “with the things that we put in place to help him”. He said moreover that his recollection was that the Parents were happy with Frank’s progress. He gave examples of the sort of steps which were taken with Frank to help him, such as giving him fewer instructions, or shorter pieces of comprehension, than other pupils, and talking around the work because Frank, though able to decode what he was reading, “didn’t always understand all the nuances of the text”. I accept this evidence. Although it was not challenged in any specific respect, the Parents seem to say that no such help was needed and that none was in fact given. I reject both contentions: on the evidence as a whole, I find that special steps were taken to help Frank, differentiating from his fellow-pupils in some respects so as to give him help which he needed and from which he did in fact benefit. It is unfortunate that the Parents, in their hostility towards the School in this trial, were unable to acknowledge the help their son was given.

[57]Going back to the start of the academic year, in an e mail to Mr Anderson dated 7th September 2009 Dr Rao said that Miss Ornstein “is of the opinion that your job will be harder because of what Frank went through last year”. Dr Rao went on to say that Miss Ornstein “also thinks that you need to be in regular communication with us in the first few weeks as Frank tries to settle and gains/raises his self-esteem which she thinks was battered last year”. It is significant in my view that in purporting to express Miss Ornstein’s views, Dr Rao did not indicate what exactly it was that Frank “went through last year”, nor what had caused his self-esteem to be “battered”. When Miss Ornstein saw that e mail, she immediately e mailed Mr Anderson denying that she had expressed the views attributed to her, and saying “It would seem that Rose is interpreting her view to be mine also, which is not the case”.

[58]In mid-September, the Parents kept Frank home from school for two days after he had suffered a nightmare. In her evidence about that, Dr Rao said that something was wrong, and it was manifesting itself in Frank’s behaviour and distress at home. She asserted that when Frank was kept off school, there were no such problems. They therefore “felt it was coming from the school”. She accepted, however, that she did not know exactly what was wrong. That evidence reflected the approach adopted by Dr Rao in other parts of her evidence: for example, in a passage in her witness statement in which she said “Something was clearly going on at [the School] that was resulting in Frank’s change in behaviour with girls and isolation”.

[59]Whilst Frank was off, on 18th September 2009, Dr Rao sent a letter to Mr Palmer in which she referred to a “brief and impromptu meeting” between Mr Palmer and Dr Schymanksi the previous day and said “we are pleased that you are investigating Frank’s distressing experiences at St Chris which have not come to an end”. The precise nature of the “distressing experiences” was not made clear, though the letter sought clarification of a number of matters, including the School’s “race/diversity relations policies”, and asserted that problems between Frank and his peers, and inappropriate behaviour towards girls, were only observed at the School.

[60]Three days later, on 21st September 2009, the Parents met Mrs Rix, who cleared her diary to make herself available to discuss Frank. In an e mail later that day Dr Rao commented that “it took Frank 3 days to get over whatever happened to him at school”, and she had wanted the meeting in order to “share with you our observations as to the possible root cause of the most recent distress”. Mrs Rix’s evidence was that it was not clear what was said to have upset Frank on this occasion: at the School, he seemed generally happy.

[61]Pat Themistocli also attended the meeting, and made notes. She noted that the Parents were critical of a teaching assistant called Roxanne, saying they did not feel she took Frank seriously. They reported that Frank had had nightmares over the summer holidays but now needed comforting at night and had been enuretic. Reference was made to Frank having missed swimming because he did not have his swimming kit on an occasion when the relevant kit was in fact in school.

[62]It was alleged that the parents had not been told in advance that Ms Themistocli would be joining the meeting, and that it was only part-way through the meeting that anyone explained who she was and why she was there. Ms Themistocli denied that: her evidence was that she clearly remembered Mrs Rix introducing her as the SENCO. I accept that evidence, and I am satisfied the Parents must be mistaken in their recollection. Having seen them and read so much correspondence from them, it is to my mind unthinkable that the Parents would have been discussing the welfare and needs of their child without knowing who was present in the meeting.

[63]Two days later, on 23rd September 2009, Dr Rao e mailed Mr Anderson saying that Frank had been happy for the last two days, and thanking Roxanne “for making the extra effort”. However, in a letter sent to Mrs Rix on 28th September Dr Rao complained that Mrs Rix had appeared not to believe what the Parents had said “regarding Frank’s distress both recent and in the past, or that there was a problem with communication with the classroom assistant, or that the problems Frank has been having are isolated to St Chris”. Dr Rao also expressed the opinion that if Mrs Rix “had taken what we said seriously right from the start, we and Frank would not have been where we found ourselves last year”. She attributed the improvement in the latter part of the previous summer term to the greater involvement of herself and Dr Schymanksi, a point which she several times reiterated and emphasised in her evidence to me. In this instance, the apparent praise of Roxanne quickly became a criticism of the School for not having previously listened to the Parents’ suggestions, something which Dr Rao said had been done by Roxanne on this occasion. Mrs Rix told me, and I accept, that she did not know what it was she was alleged not to have taken seriously.

[64]Similarly, in a letter to Mr Palmer dated 28th September 2009 in which she welcomed the involvement of Ms Themistocli, Dr Rao again complained that the School was only proposing steps which the Parents had already suggested but which had been ignored. In his reply of 6th October Mr Palmer denied that the Parents’ concerns had not been taken seriously, and noted that it was difficult “to distil from meetings, letters and e mails exactly what your specific concerns are”. In a long letter in response dated 29th October Dr Rao said that the Parents had not wanted Frank to be assessed by Mrs Fletcher:

“ … we said that Frank’s speech difficulties would most likely resolve without intervention, most probably in the coming year. We said that treating Frank differently by sending him to specialists, or other different treatment, would lead to stigmatisation and probably cause problems for Frank within his peer group”

. She said the Parents had nonetheless reluctantly agreed to the assessment, but their request to meet Miss Fryatt had been refused and Mrs Fletcher’s assessment had been “a disaster”. She reiterated her concern that Frank’s delayed language skills had not caused any difficulties in settings other than the school, for example at a rugby club at which he played, and said it was reasonable for the Parents to point out possible root causes “which it would be down to the school to investigate, address and inform us of the outcome. Certainly race has reared its ugly head before, with our other two children, we have informed Sue”. She alleged that any difficulties Frank had in associating with his peers at the School, and any inappropriate behaviour towards girls, was a direct result of the behaviour of the adults at the school, though she did not identify the behaviour or the adults concerned. She acknowledged that Mr Anderson and Roxanne had “worked tirelessly during this term”, and that the involvement of Ms Themistocli had helped in making the School “a less hostile environment for Frank”, but complained that the Parents were “yet to be informed of the root cause of Frank’s distress” and alleged that Mr Palmer was putting concern for his staff ahead of concern for his pupil.

[65]In his reply dated 5th November 2009 Mr Palmer said that he still found it difficult to distil the specific concerns. He noted that all three Boys appeared to be happy and thriving at the School and proposed the assignment of Ms Themistocli as a key member of staff to assist in the School’s better understanding of the Parents’ concerns.

[66]At 0600 on 11th December 2009 Dr Rao e mailed Mr Anderson to let him know that “Frank shot up screaming last night. He settled with reassurance”. Revealingly, the e mail then said:

“Earlier in the evening at the dinner table, he felt it necessary to apologise to us that his performance at the tests was poor. There was also a cello concert that he was not chosen for”

. Mr Anderson replied in sympathetic terms, and said he would keep an eye on Frank and would “have a word with him in case he’s worrying about [the spelling test]”.

[67]Dr Rao met Ms Themistocli on 11th December 2009. In a summary of that meeting, Ms Themistocli noted that Dr Rao was concerned that the Boys were not as happy as she would wish:

“she said there had been some issues at home and that she felt they must be connected with school”

. The note went on to record Dr Rao’s view that “staff children were probably safer than others” and that she “questioned whether we are a fundamentally equal school and whether staff might have some racist feelings”.

[68]There is a fuller record of this meeting, because it was one of several occasions when one of the Parents made a covert recording of a conversation. These recordings were only disclosed by the Parents at a late stage of the proceedings, a delay which they sought to explain by referring to items becoming misplaced during recent house moves. Neither parent gave any satisfactory explanation for the covert nature of the recordings. Dr Schymanski said he was in the habit of recording conversations so that he could later review them if necessary, and he also said it was helpful if only one parent could attend a meeting, as the other parent would then be able to hear what was said. Those may well be good reasons for making the recordings, but they are not reasons for doing so covertly and without the knowledge of those who were being recorded. Moreover, if those good reasons do exist, it seems perverse to frustrate them by concealing the recorder in a bag or pocket where it cannot function to its full efficiency.

[69]In relation to this meeting, the availability of a transcript of the recording (or, at any rate, such parts of it as are audible) serves only to confirm the accuracy of Ms Themistocli’s note.

[70]Pat Themistocli was experienced and highly qualified for her role as Head of Individual Needs at the School. I found her to be a careful and convincing witness, and I accept her evidence that the School generally had a good system of pastoral care. I also accept, as an honest statement of her attitudes and perceptions, her evidence that she would not work in an establishment which was guilty of racial discrimination, that if she had spotted anything going on in the School which caused her serious concerns she would have “jumped upon it”, and that there was no racism in the school. So far as Frank is concerned, I accept her evidence that her own observations of him did not include any inappropriate behaviour but did reveal him to be a quiet child who struggled to interact with his peers. I accept her evidence that the School’s approach to Frank had to be altered from the norm, because Dr Rao would not accept that he had any learning difficulties. I accept her evidence that she found features of Frank to be similar to those of a child with Asperger’s Syndrome, but that she made no diagnosis of that condition. Again, I regard it as entirely reasonable for her to identify the possibility of that condition: she would have been failing in her role if, having observed features of similarity, she had remained silent about the possibility. I accept her evidence that she saw no evidence of any favouritism towards pupils who were the children of members of staff, and no evidence of any racist views or racial discrimination.

[71]In the course of cross-examination Ms Themistocli made plain that she had mentioned her belief that Frank had some traits of Asperger’s Syndrome because she was looking for the best way to support him. She accepted that the Parents did not agree that Frank had features comparable to a child on the autistic spectrum, and repeated that she did not make any diagnosis. She made it plain that her views stood to be corrected by a specialist. She said she had told Dr Rao, at one of their meetings, that she recommended an external specialist might consider those features, but Dr Rao did not want to do that. Again, I accept her evidence.

[72]The Parents’ case is that Frank did not have any problem other than the delay in his speech development, and that they did not want him to be “labelled” or treated as if he had a more serious problem. It was suggested to Ms Themistocli in cross-examination that if a child who does not have a particular problem is treated as if he does, that might in itself give rise to behavioural problems. Ms Themistocli made clear that no child was ever spoken to “as if they’ve got some terrible problem because that’s not how we related to children. We speak to all children individually and with great kindness and care”. She became rather upset at this point in her evidence. I make it perfectly clear that I know that Dr Rao had not intended to upset Ms Themistocli, and was immediately apologetic and genuinely sorry for having done so. It was however a significant moment in the case, because it provided vivid (though by no means the only) support for the view to which I have come in the light of the evidence as a whole, that the School’s witnesses are caring professionals who have been distressed by the allegations made against them.

[73]Mrs Susan Rix has more than 30 years of relevant experience. I found that she too was a careful and convincing witness. On Frank’s initial visit to the Reception class difficulties were observed which had in fact been noted by his previous school, but which the Parents had not disclosed when applying to the School. In her evidence she accepted that the School had declined the Parents’ offer to sit in lessons themselves with a view to assisting Frank: although the Parents condemn that response, pointing out that they had performed such a role at Applecroft, it was in my view a reasonable stance for the School to adopt. Mrs Rix’s evidence was that she could see no point in the Parents meeting Miss Fryatt: again, I regard that as a reasonable stance for her to adopt at the time, although with the benefit of hindsight it might have been better if such a meeting had taken place. She accepted that she had told Dr Schymanski that Mrs Fletcher’s report lacked detail, but it appears that when she did so she was unaware that Frank had been 50 minutes late for his appointment.

[74]Mrs Rix’s evidence was clear that the School had recommended assessment by a speech and language therapist but that the Parents were unusually resistant to that recommendation. I accept her evidence that her informal observations of Frank’s continuing communication and social difficulties in Year 2 were wrongly interpreted by the Parents as criticism rather than an attempt to help Frank. I accept her evidence that neither she nor anyone else at the School ever made any formal diagnosis of Asperger’s Syndrome or any other condition. I accept her evidence that the parents of the girl towards whom Frank acted in the way described were distressed by those events. It was a feature of the evidence that the Parents appeared unable or unwilling to accept that others had been distressed by the behaviour of one of their sons, or to acknowledge that the School was justified in considering the position of other pupils and parents.

[75]Mrs Rix’s evidence that she spent a great deal of time in many meetings with the Parents, some of which lasted about 2 hours, was not challenged, and I accept it. I note that the Parents give scant credit to Mrs Rix, or to the School generally, for the time and effort devoted to their attendances. I accept Mrs Rix’s evidence that it was not always possible to understand what exactly the Parents wanted. I note that she, like every other member of staff who gave evidence, spoke highly of the Boys’ abilities: she stressed, and I accept, that the School wanted to support and encourage them.

[76]In my judgment, the Parents’ criticisms of Mrs Rix are unfounded and unfair. In an e mail to Mr Palmer on 29th September 2009 she noted that she had spent hours listening to the Parents and had taken all their problems very seriously, though she had found it difficult to understand their issues, and she had “moved Josef from Louise’s class when they decided that she was the cause of unhappiness to him last year” (a matter to which I return later). That accords with my own assessment, and I think it revealing to note that the Parents were happy with Mrs Rix’s role when she did what they wanted by effecting that change of class, and only unhappy with her role when she did not do what they wanted.

[77]On the evidence I have heard, it seems clear that Frank is an intelligent boy but that he suffered delayed speech which affected not only his expressive abilities but also his comprehension and social interaction. I find on the evidence that he did need specialist assistance from a speech and language therapist, and that he would have benefited from an assessment by a paediatrician. I find that he did in fact make substantial progress during his time at the School, in part because the Parents were correct in their prediction that he would progress rapidly once his language “kicked in”, but also because of the care taken by the School to assist him with his problems. Mrs Fletcher’s assessment of Frank was hampered by the very late arrival, but it nonetheless provided important information about Frank’s problems, and I cannot accept the Parents’ criticism of it as “a disaster”.

[78]On the evidence as a whole, I draw two conclusions about the Parents’ approach to Frank’s problems. First, I find that they refused to accept that the delay in his expressive language was anything more than a delay in the ability to express himself. It was in fact linked to important difficulties of comprehension which needed to be addressed in order to assist Frank. Secondly, even if one looks only at the expressive language, the Parents failed to acknowledge that Frank’s inability to make himself understood had an adverse effect on his interaction with his peers, and caused social difficulties. The Parents refused to accept that this was a problem which the School needed to address, whether or not similar difficulties were affecting Frank in other areas of his life. Their attitude throughout was that if anything was wrong with Frank, other than a simple delay in his expressing himself, it must be the fault of the School, and that it was up to the School to find out what was wrong and put it right. In my judgment, that attitude was misplaced. It is understandable that the Parents should feel that the School should fall in with their own views of how Frank should be helped at school, but in my judgment the School teachers and staff acted reasonably in assisting Frank in they way they did. Josef

[79]I consider next the evidence relating to Josef, which can be summarised as follows.

[80]In Josef’s end of term report of December 2007, the class teacher Claire Slater and teaching assistant Alyson Shiel noted that Josef was keen to bond with his peers and younger children during break times but that he “can however be a little rough, and we have had to have several chats about appropriate ways of interacting with others”. The section of the report completed by the PE teacher Mr McAndrews (against whom the Parents make no complaint) noted the need for Josef to ensure that he always had his PE kit. At the end of that school year, Josef’s report in July 2008 included a similar note from Miss Slater and Miss Shiel:

“He enjoys rough and tumble activities, so he needs to take particular care not to hurt others and to be aware of their feelings. Generally, Josef needs to be more mindful of others and respect their own physical space”

. Thus there appeared to have been no improvement in that respect. However, it was noted by the PE teacher that Josef had “worked hard to sort out his organisational problems this year and he now turns up with the correct kit for lessons”.

[81]Mrs Louise Robb was Josef’s Year 9 class teacher in 2008-09. She has more than 20 years’ experience as a teacher, and joined the School at the beginning of that academic year. I found her to be somewhat nervous in the witness box, but she struck me as a caring teacher, and I found her a convincing witness.

[82]Mrs Robb’s report for December 2008 recorded that Josef had made a really good start to the year but now needed “to work on resolving small playground issues without losing his temper and continuing the good academic progress he has made so far”. Dr Rao said in cross-examination that she did not accept that Josef had a temper: on the contrary, she described him as being “a diplomat”, and said he would have to be provoked before he displayed any temper.

[83]At the end of that school year, the report for July 2009 contained an entry by Mrs Percival, to whose class Josef had been moved in circumstances to which I will return. She said that Josef had been a pleasure to teach, and went on to say “he generally has a bright, sunny nature but he has been prone to outbursts of temper on the playground when he becomes frustrated with a situation. These outbursts have become less frequent throughout the year and he needs to ensure that he continues to exercise self-control”. It is to be noted that Mrs Percival’s note is in very similar terms to that of Mrs Robb, but the Parents made no criticism of Mrs Percival and did not address the point that her report tended to confirm what Mrs Robb had said.

[84]The first entry in the School’s records relating to abdominal pain is dated 4th November 2008, at which time Josef was in Mrs Robb’s class. The note simply stated “chest + abdo pain ? viral. Called Mum”. Dr Rao asked for Calpol to be given, and it was.

[85]On 14th November 2008 Dr Rao sent an e mail to Mrs Robb which began “It is clear to me that you and Josef are heading if not already on a collision course. Josef has come home with unexplained headaches a few days this week and some days last week”. Dr Rao suggested a meeting with Mrs Robb and Mrs Rix. It appears that no such meeting took place at that time. The meaning of the reference to “a collision course” was not satisfactorily explained by the Parents during the trial. When I asked Dr Rao about it, she said that she could see that her son was in distress going into his class and felt there must have been some conflict going on:

“Josef was not prepared to talk about these conflicts to me but he wasn’t happy about going to school and going to class, which is why we suggested that Josef should be changed”

. In my view, that is a revealing explanation: it shows the Parents being slow to ask their sons about the existence or true cause of any problem, but quick to condemn the School, or someone within the School, and quick to request action of the sort which they wanted.

[86]On 25th November 2008 Dr Rao e mailed Mrs Robb in relation to a particular piece of school work and added “And by the way, whatever you are doing, it is working. Josef is very relaxed”. Mrs Robb told me, and I accept, that in the period between those two e mails she had simply carried on teaching Josef as normal.

[87]On 9th February 2009 Mrs Robb held a meeting with Dr Rao. She told Dr Rao she was pleased with Josef’s academic progress in all areas but said she was worried that Josef’s mood swings and temper were getting in the way of his learning. According to notes which Mrs Robb made, Dr Rao “… acknowledged his progress and said she was pleased with it. She went on to say that Josef does not hit out when at home, only at school, that ‘that is not who he is – he is the diplomat’, ‘Johann is the one who hits, Josef does not’, ‘It is not happening at home’. She agreed that he needed some help and asked who would deal with it. I said that I was the first person and she replied that I was the wrong person as ‘Josef does not like you, he does not take you seriously. This annoys me that he does not take you seriously’. She did not elaborate as to why this was …”

[88]Although unable or unwilling to give any more detailed explanation, Dr Rao preferred the matter to be referred to Mrs Rix. I have already indicated that Mrs Rix was later (in relation to Frank) to become the subject of separate criticism by the Parents: at this stage, however, Dr Rao was insistent that she should deal with any issue relating to Josef’s anger. At no point in the correspondence, and at no point in their evidence, did the Parents say anything to suggest that they had questioned Josef’s attitude towards Mrs Robb, or sought an explanation for why he said he did not take her seriously.

[89]It is the Parents’ case that Mrs Robb was at this time bullying Josef. In cross-examination Dr Rao was asked why she did not make that allegation at the time. Dr Rao gave no satisfactory answer: first she implied that Mrs Robb’s note of the conversation may not be reliable, and then she affected not to understand the proposition that Mrs Robb could not deal with any concerns if Dr Rao would not tell her what they were. I have no doubt that she did understand perfectly well the point which Ms Dilnot was making, but was not prepared to address it. I regard this as a significant weakness in the Parents’ case: in the light of all I have seen and read of them, I think it inevitable that any genuine issue of bullying would have been raised at this meeting.

[90]On the following day, 10th February 2009, Josef was involved in 2 incidents in the dining room at School. The second involved Josef having his hands round the throat of another boy and shaking him violently. A member of staff intervened, and Mrs Robb asked Josef what had happened. He replied that the other boy had said something mean. Mrs Robb sought to discuss the appropriate manner of response to such a situation, and explained that by reacting in a bad way he could end up in doing something worse than the initial provocation, but Josef said he didn’t want to talk about it any more. In cross-examination Dr Rao accepted that if Mrs Robb did indeed talk to Josef in the way she described, then that would have been a reasonable approach for Mrs Robb to take, and could not be described as bullying. I accept Mrs Robb’s evidence as to how she dealt with the situation. It follows that this incident shows Mrs Robb behaving in a way very different from that which is now alleged against her.

[91]On the next day, 11th February 2009, Josef was involved in an incident in the changing rooms which Mr Kelly dealt with. Josef later spoke about this incident to Mrs Robb, and agreed that he and the other boy involved should write letters of apology to Mr Kelly. Mrs Robb indicated that she would have to let Josef’s mother know what had happened. Her evidence, which I accept, was that Josef grabbed her arm and repeatedly asked her not to tell his mother. Mrs Robb explained that his mother had said she preferred to deal with such matters herself rather than Mrs Robb. She asked if Josef could explain what he meant by saying he did not take her (Mrs Robb) seriously, to which Josef replied that he was not allowed to tell her. Again, I accept Mrs Robb’s evidence, which in any event is uncontradicted.

[92]Around this time, Mrs Robb noted that about twice a week Josef would arrive in the mornings looking cross and glum. Mrs Robb asked whether it was because of something at school, but Josef never said that it was: he either made no reply, or said it was to do with something at home. On 3 occasions that term he told Mrs Robb that he had forgotten something and his mother had hit him. Dr Rao was understandably unhappy about that evidence, but I accept it as an accurate account of what Josef said to Mrs Robb.

[93]On 12th February 2009 the Parents met Mr Palmer to discuss Josef. They made complaints against Mrs Robb. The following day, Dr Rao e mailed Mrs Robb saying that Josef was again staying home and asking for school work for him to do. Dr Rao expressed concern with the way conflicts involving Josef had been handled; criticised Mrs Robb for asking Josef what had been discussed at home; and asserted that Josef had said “Louise is my bully and because she is my teacher there is nothing I can do about it”. The e mail added, cryptically, “We have reasons to believe that certain persons at the school have been recruited knowingly or unknowingly”.

[94]Mrs Robb’s evidence was that neither she, nor to her knowledge anyone else, had bullied Josef. Nothing I have heard from the Parents or from any other witness undermines her evidence, and I accept it. There is no evidence that Mrs Robb ever acted in a deliberately bullying or intimidating manner towards Josef, and I reject the allegation that she did.

[95]I also reject any suggestion that Mrs Robb’s behaviour towards Josef was influenced by the fact that she herself has children who were at the time pupils of the School. The Parents have repeatedly insinuated that it was in some way significant that Mrs Robb had children at the School, but at no point have they explained why that was so, or why it is relevant to the issues in the case.

[96]I deal at this point with the allegation that teachers and staff told the Boys not to tell their parents about certain things. Mrs Robb, and every other witness, denied having done so, and I accept their evidence on the point. Although the Parents made this allegation, they have never said which teacher or teachers said such things; they did not put to any witness in cross-examination that he or she had said such things; and there is no evidence that it ever happened. On the contrary: the evidence points clearly to the conclusion that there were occasions when the Boys themselves preferred their parents not to know about incidents at the School.

[97]A specific allegation made against Mrs Robb is that on an occasion when she was talking to Dr Schymanski, and some kind of noise was made, she shouted at Josef “How dare you interrupt adults when they are talking”, thereby causing Josef to cower away from her. Mrs Robb denied that any such thing happened. Dr Schymanski in cross-examination confirmed his statement that he saw Mrs Robb shout at Josef, but accepted that there was no reference to such an incident in the e mail of 13th February 2009 in which the Parents listed their complaints against Mrs Robb. Having seen both witnesses, I am prepared to accept that Mrs Robb may have told Josef not to interrupt, but I reject any allegation that she did so by shouting at Josef or otherwise behaving aggressively or harshly.

[98]After half term, Josef was moved to another class: Mrs Rix’s evidence was that such a move would not usually be permitted, but that she felt a move to Mrs Percival’s class would be the most satisfactory outcome for all concerned. In cross-examination Dr Rao indicated that Josef had not told her about the two incidents on consecutive days, and accepted that she had not questioned Josef’s assertion that Mrs Robb was his bully, even though Mr Palmer had sent her an e mail from which it was clear that Josef’s report of what had happened at school was not accurate. She said she thought that was “down to the school, and Mr Palmer should have addressed that in a more detailed manner”. She did not accept that what Josef would have learned from this episode was that he could complain about a teacher and be moved to another class, but in my view that was a point well-made by Ms Dilnot: in my judgment this episode shows at best that the Parents simply accepted whatever their sons said without any detailed enquiry, and on that basis immediately made demands of the school.

[99]Following that change of class, Dr Rao sent an e mail to Mrs Rix on 11th March 2009 complaining that Mr Kelly was referring to Josef, in the presence of other boys, as “the boy who lies to his mum”. Mrs Rix said she would look into this complaint. She did so, and on 13th March she sent an e mail explaining that Mr Kelly had told off Josef for making a noise in the changing rooms, thereby disrupting Mr Kelly’s A level class in an adjoining room. In the same e mail, Mrs Rix noted that the boys could not be taken on the school bus because “last time they went on the bus the driver refused to take them again because they were disruptive and distracted him from his driving”.

[100]Over the next few days, there were three recorded incidents of Josef pushing other boys. On the third occasion, Josef pushed a boy violently on the chest “so that he fell over backwards, hurting his wrist”. These were noted in a pastoral record which referred to Josef having “an explosive temper which can cause problems on the playground at times”. It is in my view significant that these incidents occurred after Josef had been moved from Mrs Robb’s class. They strengthen my view that Mrs Robb has been unfairly criticised and blamed.

[101]For the academic year 2009-10, Josef’s class tutor in Year 7 was Mr Paul Kelly.

[102]On 14th September 2009 there was a record that Josef complained of abdominal pain. It may be noted that some 10 months had passed since the only previous similar record. It was the school nurse Carolyn Dorrington who saw Josef on both occasions. In an e mail dated 13th January 2010 she said of this latter occasion that Josef did not appear anxious and did not have a fever but said he did not feel well with the pain. Mrs Dorrington called the Parents’ home, and Dr Schymanski came to collect Josef. A few days later Mrs Dorrington spoke to Dr Rao, who suggested that the pain was due to anxiety. Mrs Dorrington agreed that some children manifest anxiety as abdominal pain.

[103]On 12th November 2009 Josef was caught cheating in a French test at the School. Mr Kelly e mailed Dr Rao to inform her. He said that he had been very disappointed by Josef’s attitude when he spoke to him about the cheating. Dr Rao replied expressing surprise. Mr Kelly provided further details and said that Josef had been improving but had lapses and at times was very childish in his behaviour. Organisation was a problem for him. Dr Rao expressed confidence that Josef could improve his organisational skills and said that he would be fine “with encouragement and some degree of sternness”. The following day Dr Rao indicated that she had discussed the matter with Josef, and he would write a letter of apology to Mr Kelly. On the 16th November Dr Rao e mailed Mr Kelly to say that Josef had been too busy over the weekend to write his letter of apology, but it would definitely come. As will become apparent, the letter certainly had not been written more than a week later, and I have seen no evidence that it was ever written at all.

[104]I heard a great deal of evidence about an incident on 24th November 2009. Josef was seen by Mr Kelly pinning another boy in a corner and repeatedly kneeing him. The other boy was Hamish Robb, the son of the teacher Mrs Robb. The e mail exchange about this is illuminating. At 0923 Mr Kelly informed Dr Rao of what had happened and said that Josef’s explanation had been that the other boy was bothering him and would not stop. Mr Kelly continued:

“This is a real shame as I thought he was making real progress since the last time I wrote to you. Although he has still been involved in some loud and boisterous behaviour it has never been violent. Josef must understand that he cannot lash out when things are not to his liking. He will sit a detention tomorrow lunchtime with me”

. Dr Rao quickly replied, in an e mail sent at 0945. She did not express any disappointment with or disapproval of her son’s behaviour. Instead, she said “Josef is NOT a violent boy. Does he feel that he is free to talk to you when something is bothering him? You may well avoid such incidences if your communication channel is sound. I have noticed that Josef is reluctant to write that apology to you. This means he does not feel free to talk to you. By placing him in detention alone you will not solve the problem”. She went on to refer to an incident in which Josef had been hurt when kicked by a pupil the previous day. At 1259 Mr Kelly indicated in an e mail that he had had a long chat with Josef, who understood that his actions were not appropriate but suggested he was unable to control himself. At 1411 Dr Rao wrote “Paul, perhaps you should know that after your chat Josef wet himself. He was that distressed by it. Josef needs to be able to feel confident and feel free to talk to someone when things are bothering him. Clearly he does not have that with you. Perhaps someone else can be found that he can speak to. Clearly if he is being provoked with no one to speak to matters will get out of hand.” Mr Kelly replied later that afternoon, saying that he was unaware that Josef had wet himself and indicating that the other boy involved had been dealt with. Dr Rao responded by saying that until the matter was looked at further, the Parents did not wish Josef to be placed in detention: “indiscriminate punishment of children is counter productive”.

[105]The clear evidence from a number of witnesses was that both boys were disciplined, and both were kept in detention. In Josef’s case, the timing of the detention was arranged to ensure that it did not prevent him from attending his music lesson. The evidence therefore clearly shows equal treatment of both boys, and not an unfair focus on Josef. Nonetheless, Dr Schymanski in his cross-examination said he was not prepared to accept Mr Kelly’s evidence that Hamish Robb was disciplined. Dr Rao was also asked about this in cross-examination. She was asked why – in view of Mr Kelly’s e mail - she had said in her witness statement that neither she nor her son had been told that Hamish Robb had been disciplined, and that “if Mrs Robb’s son was punished, it was a closely guarded secret”. She replied that she had said that because Josef had not been told. She accepted that she herself had been told, but said that she did not see it as her place to tell Josef: the school should have done that. She was asked again why she would leave her child thinking he had been unfairly treated when she knew he had not, and having initially repeated that she did not see it as her place to do so she went on to say that it must have slipped her mind.

[106]These answers by the Parents in cross-examination are in my view very revealing. It is entirely clear, and I so find, that Mr Kelly did discipline both boys. It is equally clear, and I also find, that the Parents were within a short time told that had happened and had no reason to doubt what Mr Kelly said, but chose to ignore that fact. The allegation of “indiscriminate punishment” was wholly without foundation, yet the Parents remain unwilling to acknowledge that fact.

[107]The allegation that Josef had wet himself after being rebuked by Mr Kelly was a dominant theme of the Parents’ case, constantly referred to by them as a striking illustration of the Boys’ suffering at the School, and relied upon in support of their attack on Mr Kelly as a bully. Dr Schymanksi, for example, asserted that Mr Kelly had “intimidated Josef to such an extent that he had wet his pants in public”. The evidence about it can be summarised as follows.

[108]Mr Kelly’s evidence was that he had no knowledge of Josef having wet himself until he read Dr Rao’s e mail. From Josef’s reaction during their discussion, and the change in his behaviour at a particular point, it seemed to him that if Josef did wet himself, it was more likely to be due to concern about his mother’s reaction to being told about the incident with Hamish Robb, and not because of anything Mr Kelly had said or done. He did not suggest that Josef had said anything to indicate that his mother’s reaction was likely to be unreasonable, but he said his behaviour changed at that point in their discussion.

[109]The Parents are very critical of Mr Kelly: Dr Schymanksi accused him of saying whatever needed to be said to keep his job, and in their closing submissions they described Mr Kelly’s suggestion that Josef may have been concerned about his mother’s reaction as “emotional abuse of the worst kind”, a “deliberate attempt to ruin a mother child relationship” which should have resulted in his summary dismissal. I reject those views. I found Mr Kelly to be firm, decisive and convincing as a witness, and I accept his evidence as to what happened.

[110]On 27th November 2009 Dr Rao met Pat Themistocli, and covertly recorded their conversation. In the course of it, Dr Rao said that Josef had said to her “Mum, I’ve wet myself and I don’t know how”, though she did not know whether it was more than “an initial bit, a little bit of a wet”. She suggested that what had caused this was Paul Kelly telling Josef that if he did not learn to control himself he would have to find another school.

[111]Ms Themistocli’s evidence was that in her dealings with Josef, the only thing he had ever said against Mr Kelly was that he did not like Mr Kelly’s very loud voice and did not like him to raise his voice. On the 24th November 2009 Dr Rao contacted her and asked her to “make sure that you bump into Josef today so that you can give him some comfort about something that has happened”. Ms Themistocli said she had gone looking for Josef and asked if he wanted a quiet word, which he did. She continued:

“he said that he’d been desperate to go to the loo before the lesson, he hadn’t wanted to say anything and the lesson had started and then when there’d been an incident then he’d felt himself beginning to urinate and then he could not turn it off, he could not stop it. … some of the boys had got into trouble because they were being silly in the changing room, and I think that some of the boys had had to stand quietly for a minute and then he’d felt himself starting to wee.”

[112]Ms Themistocli confirmed that Josef had said that Mr Kelly had been cross, and acknowledged that she was not saying that the wetting incident had nothing to do with Mr Kelly. She did however say that this sort of thing happening to year 7 boys was very common. She also said that Josef said to her that his mother would not be pleased about it and would get cross, which she took to mean that he was worried about having to go home in different clothes. She said that apart from that incident, Josef always seemed happy when she saw him around the School.

[113]Dr Schymanski said in cross-examination that he did not know whether Josef had wet himself whilst being told off by Mr Kelly or shortly afterwards. He said he inferred it must have happened because of something Mr Kelly had said because Josef had not wet himself before and because “this is how he depicted it to his mum”.

[114]Dr Rao asserted in her opening address that Josef wet himself “in the presence of” Mr Kelly. There was no evidence to justify that assertion, even from Dr Rao herself. Her evidence was that within a short time Josef had sent her a text message “that he’d wet himself after contact with Paul Kelly”. She later repeated that, but this time added “… and he referred to Paul Kelly as the person who made him wet himself”. She was challenged that she had not made that assertion in her witness statement, and it was suggested that if there was any truth in it Dr Rao would have said it long ago. Dr Rao denied that, and insisted she was telling the truth. No text message has ever been disclosed, though it is readily understandable that a text message may not have been preserved. I have no evidence from Josef himself.

[115]On the totality of the evidence, I find that Josef probably wet himself within a few minutes after Mr Kelly had spoken to him about the incident with Hamish Robb. On the evidence, Josef’s own account to his mother was that he did not know why he had wet himself, and his account to Ms Themistocli suggested that he had been desperate to go to the lavatory before the lesson began. It must have been embarrassing for an 11 year old boy to have to change his clothes because he had wet himself, and I make allowance for the possibility that in giving those accounts Josef may well have been reluctant to go into detail. I also take into account the likelihood that Josef was upset about being told off (albeit that the rebuke was justified) and the possibility that he may have been worried about the prospect of explaining his behaviour to his parents. I therefore think it possible that the fact that Josef wet himself did in some way arise from the fact that he was told off, despite his own indications to the contrary. I do not however find any evidence that Mr Kelly rebuked Josef unfairly, or in unjustified terms, or in a bullying or otherwise inappropriate manner. I reject the allegation that Josef was caused to wet himself by the manner in which Mr Kelly spoke to him. I conclude that the Parents have given disproportionate weight to this allegation, treating it as almost emblematic of the failings which they allege against the School, and have used it unfairly as a basis for criticising Mr Kelly.

[116]Like Mrs Robb, Mr Kelly also had children who were pupils at the School. In his case also, the Parents have repeatedly suggested that this is in some way significant but at no point have they explained why that was so, or why it is relevant to the issues in the case. In his case also I reject any suggestion that Mr Kelly’s behaviour towards Josef was influenced by the fact that his children were at the time pupils of the School.

[117]On 1st December 2009 the school nurse recorded that Josef had complained of abdominal pain, for which she had given him paracetamol. It should be noted that this was some 11 weeks after the last record of any such complaint by Josef.

[118]At 0743 on 7th December 2009, Dr Rao e mailed Paul Kelly. Apologising for the late provision of this information, she said that Josef would be leaving for a holiday in Kenya that day, and would therefore be collected from the school at lunchtime. She said that Josef would be travelling alone and would spend Christmas and New Year in Kenya with family and friends there. She said that if Josef would thereby miss any important school work she would be glad to have it, and that she would if necessary arrange for tutors to assist him in Kenya. Mr Kelly forwarded this message to Mr Palmer, who e mailed at 0826 making clear that it was he who must give permission for a pupil to miss school. He said “Had permission been sought then we could have discussed it and made proper arrangements for Josef to have the necessary work. To miss 2 weeks of school at this stage is quite a big thing. I don’t think my colleagues will be able to get appropriate work together in such a short time span but they will, as ever, do their best”. Dr Rao replied accepting that she and her husband must take full responsibility for the failure to follow the appropriate procedure.

[119]It did not seem to me during the trial that Dr Rao saw any inconsistency between her many criticisms of the School’s care for her sons, and the Parents’ action in taking their son out of school at minimal notice to miss the last two weeks of term by flying alone to Africa (where, as events turned out, he contracted malaria).

[120]In Josef’s December 2009 end of term report relating to games Mr Kelly commented “In terms of effort Josef can work well but his lack of organisation continues to plague him. It is vital Josef has all the correct kit for every lesson, too often this term he has arrived without full kit”. Johann

[121]In the academic year 2007-08, Johann’s reports were good, and the School expressed no concerns. The Parents make no complaints in relation to any events occurring during that year.

[122]I heard evidence from Mr Bryan Anderson, who taught Johann in Year 4 in 2008-09. He spoke highly of Johann. His evidence was that he had no knowledge of any bullying of Johann, and no knowledge of anyone calling Johann “poo face” or using any form of racial abuse towards Johann. He denied that he, or any other teacher to his knowledge, ever said anything to Johann to the effect that he must not tell his parents about certain things. It appeared that the Parents accepted Mr Anderson as a good teacher with whom they had no quarrel, as they did in relation to his teaching of Frank. With specific reference to Johann, Dr Rao acknowledged that Johann seemed happy in Mr Anderson’s class and that he liked Mr Anderson and got on well with him. However, Dr Rao in cross-examination put to Mr Anderson that it was in fact he who first alerted the Parents to a pupil having called Johann “poo face”. It was said he had done so in the summer term, during one of the regular termly parents’ consultations with class teachers. He denied that was so. I accept his evidence: he was plainly a diligent teacher, and I accept his evidence that if any such thing had happened, “I would not have waited until there was a parents’ consultation, I would have spoken to the parents straightaway because it would have been a matter of some urgency”. The Parents did not put any evidence before me to suggest any reason why he would not have acted as he says. He did after all see at least one of the Parents on most mornings, when they dropped the Boys off at school. There were therefore many opportunities for him to raise any such matter, and no reason for him not to have done so. I conclude that the Parents must be mistaken in their recollection of the circumstances in which they heard any reference to “poo face”.

[123]I asked Mr Anderson whether in any event he regarded “poo face” as a generally derogatory term, or a racist term. He indicated the former, and said “Children … become quite obsessed with poo and bum and things like that when they’re quite young and that does spill over into their language and name-calling”. There was no evidence before me that “poo face” was necessarily a racist term, as opposed to a general term of abuse.

[124]The Parents do not refer to any other matter occurring during Johann’s second year at the School.

[125]On 13th October 2009, Johann fell from a tree in the School grounds. This is the first recorded injury which Johann sustained at the School: the Parents allege in general terms that he sustained injuries which were not recorded, and Dr Rao told me she often saw bruises and grazes on Johann’s limbs (“falling-over type of injuries”), but they did not identify any specific injury said to have occurred during Johann’s first two years at the School. I heard a great deal of evidence about this incident. It was by no means a trivial accident: Johann fell from a branch which was about 4 feet above the ground, and hurt his back, though fortunately, he seems to have suffered nothing worse than bruising. I agree with the Parents that such a fall might have caused more serious injury. However, it was not such a major incident as merits the emphasis placed on it by the Parents.

[126]Carolyn Dorrington, the school nurse, gave evidence about this. She has been a state-registered nurse since 1978, and she struck me as a most kindly lady, with an obvious affection for the children at the school and concern for their welfare. Her evidence, which I accept, is that she asked Johann what had happened, and he told her he fell from the tree: he did not suggest that anyone had pushed him, nor did he suggest that anything untoward had happened to him. She called Dr Rao.

[127]Dr Rao arrived at about 1225 and left about 15 minutes later. In an e mail to Catherine Ornstein at 1448 that same day Dr Rao said “As it turned out, Johann’s back was sore but not sore enough for me to take him away from school”. Importantly, she said of the incident itself that “Johann fell off a tree”.

[128]Mrs Rix investigated this incident, and prepared an accident report. There were three boys who witnessed what happened. Mrs Rix’s investigation led her to record that Johann had been trying to reach an apple when he slipped and fell. He did not tell any member of staff until the end of the break period, when he returned to school and complained of back pain. Mrs Rix noted that both the trunk of the tree and Johann’s shoes were wet and slippery, and that the tree was difficult to climb. She recommended that children should not climb the trees in the orchard unless it was dry, and should not climb that particular tree. Mr Hawkes, the Bursar, endorsed that advice, and there is no evidence to suggest it was not implemented.

[129]In the course of her evidence Mrs Rix made clear that one of those to whom she spoke was Johann himself. She did not make a specific record of what he told her, but her evidence was that there was nothing in his account which caused her to doubt what she put in the accident report. The Parents appeared to expect something in the nature of a detailed statement written or signed by Johann, and to think the absence of such a document was significant. My own view is the Mrs Rix’s investigation followed an appropriate course.

[130]Mrs Rix gave evidence that there was no record to her knowledge of Johann ever having told anyone at the School that he was pushed from the tree. Dr Rao put to her that Johann had told her he was pushed off the tree. She denied it.

[131]Dr Rao in her witness statement said that “Josef told me at the time that he was pushed out of the tree and that he had informed Mrs Rix how the injury occurred”.

[132]Dr Schymanski said that the first information he was given by Johann was that an older, blond boy had pushed him from the tree:

“Then he had a talk with Sue Rix, who told him: ‘Really? Really, are you sure? No, there’s no one in the tree. It was wet. You slipped.’ And it was repeated to him on several occasions and the story has changed.”

[133]Dr Schymanski added in cross-examination that Johann changed his initial account and said that he had slipped on the wet tree, and it had felt as if he had been pushed. In Dr Schymanski’s view that was an illogical statement.

[134]Thus a serious allegation is made against Mrs Rix. It is alleged that, having been told by Johann that he had been injured by the deliberate and dangerous act of another pupil (who could, no doubt, easily have been identified), she deliberately suppressed that account, told Johann a different version of events, and recorded that different version of events. Instead of setting in motion the appropriate punishment of the true culprit, she set in motion certain measures by way of precaution against recurrence of an accident which she knew had not happened. No motive for acting in such a way was suggested to her. Nothing in the evidence before me begins to suggest any reason why Mrs Rix should do such a thing.

[135]Nearly a month after this incident, on the 10th November 2009, Dr Schymanski made a covert tape recording of his conversation with Mrs Dorrington, to which I refer below. It would seem that he left his recording device running, and I was provided with a transcript of what appears to be a conversation between Johann and his father as they were travelling home. Dr Schymanski asked Johann what happened when he fell off the tree, to which Johann replied “The tree was slippery and I fell off”. Dr Schymanski asked if anyone had pushed him, a surprising question to ask. Johann replied “No, it was just slippery”. He went on to say that a younger boy wanted an apple and Johann got one for him. Dr Schymanski suggested that someone had said that someone had pushed Johann, to which Johann replied “No, no, that was what it felt like”. He went on to explain that the combination of his slipping, and the branch snapping, felt like someone had pushed him, but there had been nobody in the tree with him.

[136]Dr Schymanski said in cross-examination that he was surprised because at the beginning of this conversation Johann had volunteered that nobody else had been there when he fell: Dr Schymanski had not asked him if anyone else was present, and so he felt it necessary to investigate why Johann should have volunteered that point. He later told me that Johann had subsequently said to him that he had been “told by Sue that nobody was there”; but, said Dr Schymanski, “that is not on the tape unfortunately”.

[137]That transcript is the nearest I have to an account from Johann of this incident to which the Parents attach such importance. It provides no support whatsoever for the allegation that Johann was pushed out of the tree. Dr Schymanski’s evidence does not seem to me to be consistent with his own recording of himself talking to Johann on this topic. I find it impossible to know what Johann has said to his parents (other than that which is transcribed), and I cannot be confident that anything Johann did say was not influenced by a leading question or remark by a parent. In those circumstances, I do not accept Dr Schymanski’s evidence of what else Johann said to him. I can think of no reason why, if his evidence were correct, he would not immediately have asked Johann to identify the older, blond boy, and asked the School to investigate that boy’s conduct. As Ms Dilnot correctly pointed out in cross-examination, this was not evidence which Dr Schymanski had stated before: again, I can think of no reason why that would be so if the evidence were true. It would surely have formed a central allegation.

[138]I am satisfied from the evidence as a whole that the fall from the tree was an accidental fall. I accept Mrs Rix’s evidence that Johann told her of an accidental fall, and I reject the allegation made against her that she was given a different account but chose to suppress it. At the very best, I conclude that the Parents do not know what happened when Johann fell, and have made allegations, including the serious allegation against Mrs Rix, when they had no basis for doing so.

[139]I add for completeness that on the evidence as a whole, climbing the tree concerned was not so dangerous an activity that the School should have stopped it. Mrs Dorrington’s evidence was that the ground beneath the tree was very soft. It is as Mr Palmer said a healthy activity to climb a tree, and not one to be prevented unnecessarily. The Parents, with all their sensitivities, could have been expected to identify the tree as a danger if it was, but did not do so until after Johann’s fall. Even then, their real allegation was not that Johann should not have been permitted to climb the tree at all, but that he had been deliberately pushed from it.

[140]Mrs Rix referred to another fall from a tree. Her statement says that she saw Johann slip and fall about 3 feet from a tree, and that he was not injured. No further detail was given of this accident, which Mrs Rix said she believed was a different occasion from the fall on 13th October 2009, and she was not asked about it in cross-examination. The Parents place emphasis on this as a significant, and at least potentially serious, accident which has not been recorded in any of the School’s records. There is some force in that point. However, the other feature is that it does not appear to be an accident which Johann ever mentioned to his parents. I conclude that it was nothing more than an accidental fall of a few feet which resulted in no injury, and in my judgment it provides no support for the Parents’ case beyond showing that it was possible for an accident to happen without a report being made.

[141]On 5th November 2009 Johann fell in the playground and cut his hand and elbow. Mrs Dorrington cleaned and dressed the cuts and removed some gravel. He suffered a similar fall on 10th November 2009, when he grazed his palm. On this occasion a teaching assistant Miss Hayes cleaned the wound and applied a plaster.

[142]On 10th November 2009 there is a record that Johann complained of a tummy ache about 10 minutes before PE. He said he was in agony, and was crying. The teacher therefore called Dr Schymanski. However, Johann swiftly recovered sufficiently to join in the eating of cakes to celebrate a birthday in his class, and “when Dad arrived he was absolutely fine”. The teacher added a note “Maybe a concern over PE?”.

[143]Mrs Dorrington saw Johann on this occasion. She spoke to Dr Schymanski, who made a covert recording of the conversation. Mrs Dorrington referred to Johann having complained of a sore tummy, and said she thought something might have upset him. She said she could not find anything wrong: Johann did not seem to have a sore tummy when she saw him, he did not have a raised temperature and his colour was fine. She wondered “whether there was something that might have upset him because he came from his games, whether he wasn’t happy doing games or something, I’m not sure”. She said of Johann “He keeps coming to see me, he’s had lots of little issues hasn’t he, bless him”. Dr Schymanski commented that he had heard Johann had fallen out of a tree, and Mrs Dorrington replied “I know. I’ve seen him a lot since he’s been here. It’s always his back and his hands and not feeling very well, there’s been lots of little bits, haven’t there?”.

[144]The transcript of the covert recording shows that Mrs Dorrington did not (as was put to her in cross-examination) positively suggest that Johann had left his class because of anxiety. As the above paragraph shows, she had merely contemplated the possibility that something might have upset him. It is revealing that in his witness statement (before the covert recording had been disclosed) Dr Schymanski gave an exaggerated account of this discussion, which he referred to as a “very significant meeting”: he asserted that Mrs Dorrington “recognised that Johann’s case of abdominal pain was probably due to factitious illness”. She clearly did not do so. I find it difficult to see how Dr Schymanski could have felt justified in ascribing that view to Mrs Dorrington.

[145]On 17th November Johann was hit in the face by a football. His teacher gave him a cold towel and he sat for a while until feeling better. Mrs Rix prepared an accident report in which she noted that after sitting quietly Johann had asked to return to the playground. There is no suggestion that this was anything other than an accident in the course of a game of football. By the time of that accident, Ms Themistocli had already arranged to hold a meeting with the Parents because they wanted to discuss his injuries sustained during the school day. She commented in an e mail to Mr Palmer that he “does seem to be very injury prone”.

[146]On 23rd November 2009 Dr Schymanski reported to Johann’s class teacher that Johann had been very upset the previous day, crying and saying that he did not want to go to school. Johann had told his father that boys in the year above his were being unkind to him, and swearing at him in the playground. Dr Schymanski also expressed concern that Johann “seemed to be getting a lot of injuries”. The teacher Claire Standing recorded that she and others observed Johann at break times, and saw no problems.

[147]Dr Schymanski nonetheless said on the following day that older boys had again been unkind to Johann and sworn at him. When spoken to, Johann himself said only that he could not remember what the boys concerned had said. Later in the day he complained that he had accidentally been hit by the ball when playing at break time. As a result of the Parents’ concerns, Mrs Rix asked staff to be particularly vigilant when on playground duty, and the School introduced the keeping of a record of playtime observations involving Johann. A log was kept from 24th November to 10th December 2009: the entries in it record Johann happily playing football and other games with other boys.

[148]The record made by Claire Standing on 23rd November also referred to a revealing incident during a PHSE lesson, about which teaching assistant Jane Miller gave evidence. Each child was invited to give a compliment to another child, and one commended Johann’s violin playing. Johann immediately became distressed: he said “I don’t want to hear that! That’s to do with my mother!” Jane Miller was asked about this in cross-examination: it is a piece of evidence which was understandably rather upsetting for Dr Rao, but I accept Jane Miller’s evidence that it happened as she described.

[149]No further accident or injury to Johann was recorded by the School until 4th February 2010, and none was alleged by the Parents.

[150]Johann’s December 2009 report in relation to games included the following comments by Mr Kelly: “Johann is an attentive student, but he lacks organisation at times. He must ensure he has the correct kit for PE lessons”. 2010

[151]Having dealt with the evidence relating to individual boys separately thus far, I think it necessary now to deal with events in 2010 in a single chronology.

[152]I start with a letter which the Parents wrote to the School dated 26th December 2009, but which was not stamped with sufficient postage and was not received by the School until 11th January 2010. I must quote it in full:

“Dear Richard, Our communications with St Christopher, and your responses regarding the welfare of our three sons have demonstrated that a system is in place for the following to go on, even at a time when St Chris expected OFSTED inspectors, and had a national bullying awareness week; Discrimination, which we believe to be racially motivated, based on the false belief of global superiority, the most obvious being knowledge, deed/actions, honesty, and an expectation that our children (and by extension us parents) would know their place in this inferior position, and further accept it. They have suffered detriment by not accepting this position in not conducting themselves accordingly. This detriment has manifested itself in the playground exclusion (from peer group), academic performance (beneath their capability), and at home as nightmares, bed wetting, abdominal pains, hospital visits, absence from school. During my discussions with Pat, I elaborated my position further. I was reassured to hear that these are not practices that the school condones. I pointed out certain staff employment practices that would clearly lead to a conflict of interest when attempting to improve or rid the system of such shameful practices. As knowledgeable parents we have paid a heavy price in supporting our children through these very difficult experiences. We have faced similar responses, resulting in unnecessary expenses and loss of income. In our lengthy communications we have given examples of this complaint. Our surprise has been that you have not understood what seemed so clear. The only explanation we have is that the system is in the institution and is the way it has always been. It has previously worked, as anyone who does not belong to the group has accepted their place. Our family’s problem is that we have refused to accept that “uniqueness” (as referred by you) that results in our children becoming who they clearly are not with the description given by your various staff members and observed by independent professionals requested by the school. Children who do not exist anywhere else other than at St Christopher. We would like that Josef be changed from Paul’s class to Kate’s class for the reasons above, it is our view that given his experiences in junior school of which you are aware, he should not have been placed with him in the first place. We would request a meeting late January early February to discuss matters further. We hope that this communication has been brief enough for you to enable us to continue addressing these rather serious and distressing matters. We did not feel it appropriate to present this communication in the run up to X-Mass, hence the delay. Rose and Paul”

Rose and Paul”

[153]Mr Palmer replied on 11th January noting that the Parents had accused the School of racially motivated discrimination and saying “Given the seriousness of your accusation and that you have not been satisfied with our attempt to understand and resolve your concerns, I would like to treat this as a formal complaint”. Mr Palmer enclosed a copy of the School’s Complaints Procedure, and asked the parents to write to the Chairman of the Governors, Mr Vernon McClure. As to the request for Josef to change class, Mr Palmer wrote:

“… this would be a most unusual step. Advisees and advisers spend little time together and Paul is an excellent and experienced Year 7 Adviser. Whilst I know that not all children get on with all staff all of the time, I don’t think that moving Josef would be of benefit. In your letter, it could be interpreted that you are also suggesting that Paul has racially discriminated against Josef. I would be grateful if you would confirm that this is your belief as soon as possible in order that I can take the necessary action.”

[154]Dr Schymanski’s evidence was that Mr Palmer already knew about Josef’s problems with Mr Kelly, because Dr Schymanski had had several meetings with him (of which there is no record). He asserted that Mr Palmer “knew the problem but he just didn’t want to face this because Paul was his personal friend”. He said he was not aware of that friendship at the time, but had subsequently been told about it by other parents. On that basis, Dr Schymanski alleges that Mr Palmer was improperly protecting Mr Kelly. Having heard from Mr Palmer, I reject that allegation as unfounded.

[155]On either that same morning, or the following morning, Dr Schymanski brought Josef to school and sought an unscheduled meeting with Mr Palmer. Mr Palmer immediately made himself available for such a meeting. Mrs Henry was also present. The evidence as to date was conflicting, and nothing turns on it, but I find on the balance of probabilities that the meeting took place on the 11th January.

[156]Mrs Henry had not taught any of the Boys, but had of course seen them in the course of her work. Her evidence, which I accept, was that she had seen nothing to indicate or suggest that any of them was being bullied, or was fearful of any teacher.

[157]At Mr Palmer’s request, Mrs Henry made brief notes during the meeting. There is also a fuller record of the meeting, because Dr Schymanski covertly recorded it. I was provided with a transcript, from which it is apparent that Mrs Henry’s notes were accurate though of course much briefer than the verbatim record. Dr Schymanski began by saying that he would really like Josef to be moved from Mr Kelly’s class. Mr Palmer asked whether it was being alleged that Mr Kelly had been discriminating racially, to which Dr Schymanski replied “I mean that may be a cause, that certainly may be a cause. I mean he has been mistreating Josef for a long time and I also had a complaint from my other boy”. He acknowledged that it was a very serious claim to make. He referred to Josef having wet himself and said Josef had then “spent a lot of time in the sick bay following some other incidents”. Mr Palmer said that he could see no reason to change Josef’s class. Dr Schymanski referred to the School’s duty of care, referred to the fact that Josef had been able to change class whilst in the junior school, and accused Mr Palmer of being more interested in the teacher’s benefit than in the pupil’s benefit. He said that he could not let his child be sent back into “a place of harm”, but added that he did not object to Josef being taught by Mr Kelly, only to his being in Mr Kelly’s class. Mr Palmer pointed out the obvious inconsistency and illogicality of that stance, but Dr Schymanski did not agree. Mr Palmer expressed his deep distress that it was being suggested that he would allow a member of staff to work at the School if he felt that person was racially harassing children, and Dr Schymanski confirmed that “this is our belief”. Mr Palmer indicated that it would be for the Governors to investigate that allegation.

[158]There was then this exchange:

“Dr Schymanski: Look, at the end of the day I would like Josef to be taught. I think this is a good school and I don’t want him to come back home crying, I don’t want him to wet himself. I would like him to continue with the school and there are certain teachers who do not treat him well, avoid him contacting those teachers and we can continue. I don’t see why you are objecting for him to be moved to another class … Mr Palmer: What if another teacher upsets him, we have to take him out of that class as well? Dr Schymanski: It is not about upsetting him because certain teachers who find it difficult to deal with an intelligent boy, possibly intelligent brown boys and it is something that you may want to … Mr Palmer: I’m sorry, I think that is outrageous. Some teachers here find it difficult to deal with intelligent brown boys? Dr Schymanski: It may be a possibility.”

Dr Schymanski: It may be a possibility.”

[159]Eventually a compromise arrangement was reached to the effect that as a temporary measure Josef would register each morning in a different room, and would not join the rest of his class for the period with the class teacher Mr Kelly as the start of the day, but would otherwise follow his usual timetable, including PE lessons taught by Mr Kelly.

[160]Mr Palmer gave evidence about this meeting. I found him an impressive and convincing witness, who dealt in a careful and objective manner with the very serious allegations raised against the School and his staff. He said that the Parents had not raised any objection when Josef was initially allocated to Mr Kelly’s class, and he did not think it appropriate to move the boy when the request was first made at this meeting:

“The fact is that Josef and Mr Kelly had to have a relationship because Mr Kelly was teaching him, and I considered it better, as I almost always do in such circumstances, to leave Josef in the [class] to which he was allocated, and work through the issue from there.”

[161]Mr Palmer went on to say that the reason he asked Mrs Henry to investigate was that Dr Schymanski alleged that Josef didn’t want to be in Mr Kelly’s class because of Mr Kelly’s racist attitudes. No evidence of any such attitudes was found by the investigation.

[162]Dr Schymanski gave evidence about this meeting. He said that one of his concerns was that neither Johann or Josef, both of whom were very good rugby players, would play rugby for the school because Mr Kelly was the coach. His principal concern was that his sons mainly had problems with two teachers, Mrs Robb and Mr Kelly, and Josef was in Mr Kelly’s class with Hamish Robb. He asserted that both boys told him that Mr Kelly constantly picked on them and treated them differently from other boys. He said that he made the allegation that Mr Kelly was racist because – “… Paul has been harassing Josef over an extended period of time, and Josef believed that Paul doesn’t like brown people, and the same thing I heard from Johann on several occasions. So I had to look at that option.”

[163]Dr Schymanski alleges that Mr Palmer had refused to investigate the allegations because to do so he would have to suspend Mr Kelly. I reject that allegation: the reality, as the transcript shows, is that Mr Palmer said that it would not be possible to avoid any contact between Josef and Mr Kelly unless Mr Kelly was suspended, and that he was not prepared to suspend him. Dr Schymanski also alleges that Mr Palmer had refused to investigate race matters. Again, I reject the allegation: in cross-examination he conceded that his own recording showed that Mr Palmer had said there would be a full investigation, though not by him personally. Confronted with that, Dr Schymanski shifted his allegation to one that the investigation “was a complete sham”. He is of course entitled to his opinion as to the merits of the investigation; but he must have known that the transcript of his own recording showed that his initial allegations were unfounded, and yet he persisted in them.

[164]Mrs Henry (at Mr Palmer’s request) enquired into the matters raised at the meeting by Dr Schymanski. She spoke to Josef, and asked why he was worried about being in Mr Kelly’s class. Josef confirmed that he wanted to change class, saying that he did not want to be in Mr Kelly’s class “in case something goes wrong”. He also confirmed, however, that he was happy to be taught PE by Mr Kelly. He made no reference to the “wetting incident”. He said that Mr Kelly had been making Josef uncomfortable and had been annoying to him. Josef said he told his mother about this, and Mr Kelly then said to him “You can’t go to mum and lie to her”. Mrs Henry summarised Josef’s overall attitude as follows:

“he made it very clear he just wanted to move to Katie Miller, another teacher, her [class], because he just felt that things weren’t going very well with Mr Kelly”

. She said she did not ask any question specifically about the wetting incident because she felt it would have made Josef very uncomfortable for her to do so. She was however asking open questions about any problems or concerns, and in my view there was at the very least an opportunity for Josef to talk about that incident if he wished to mention it as part of his explanation of wanting to leave Mr Kelly’s class.

[165]In cross-examination, Mrs Henry was challenged as to whether it had been appropriate for her to question Josef in this way, without the consent of his parents. The Parents are very critical of her for doing so, asserting in their closing submissions that to interview Josef without his parents’ consent was “abuse in its extreme”, which should have resulted in her dismissal. Mrs Henry said, and I accept, that she first satisfied herself that Josef was comfortable talking to her, and thereafter used “a very gentle form of questioning”. She did not think it would have been better to have another adult present with her, making the point that the informal atmosphere of the School, and the use of first names, meant that pupils were comfortable with speaking to senior members of staff. At the end of the meeting, she read through the notes and Josef also read them to himself. I do not find any ground for criticising Mrs Henry’s approach. The Parents’ submissions as to “Gillick competency” are in my view misconceived: Mrs Henry was doing no more than ask Josef for his views and concerns, and the Parents do not suggest he was not well able to answer such an enquiry if he wanted to do so. I note moreover that in other contexts the Parents criticise the School for not having asked one of the Boys for his account or views about a specific matter.

[166]Dr Schymanski was casually dismissive of Mrs Henry’s investigation, saying to me “I don’t believe she was interested in finding out what Josef felt about Paul”. I disagree: in my view, she made an appropriate investigation, which she conducted with a sensitive regard for Josef.

[167]Mrs Henry asked Josef for specific matters, and noted 6 complaints. She later asked Mr Kelly to respond to those notes, which he did in writing. His written response was confirmed by the oral evidence which I heard from him. Mr Kelly said he had told Josef “If you do something wrong, you cannot then go and lie to your mother about it as it is not fair”. He said he had done so because he knew from Dr Rao’s e mails that the accounts Josef gave her “do not always resemble incidents he has been involved in”. In summary, the other complaints and the responses were as follows: i) In year 6, Josef and another boy both forgot their PE kit: the other boy was allowed to borrow spare kit, but Josef was not and was made to sit at the side during the lesson. Mr Kelly’s response was that Josef frequently forgot his kit, and for his first half term was lent kit by Mr Kelly. The other boy was almost invariably fully equipped. He did not remember the occasion to which Josef referred, but felt that the other boy would have been lent kit because his was an isolated lapse. ii) Shortly before going to Kenya, Josef forgot his PE kit but was able to borrow kit from a friend. However, Mr Kelly issued him with a detention, gave no explanation and told him to sit at the side. Mr Kelly’s response was that Josef’s account was incomplete: the friend concerned was only able to lend Josef one item of kit, with the result that Josef was still not properly attired for the activity and so was required to sit on a bench and later to sit a 20-minute detention. iii) Josef had forgotten his PE kit and had been made to run round the field. Josef acknowledged that the same happened to other boys who had forgotten their kit. Mr Kelly confirmed this was a standard punishment for those who forgot their kit and could not borrow any. iv) As to the incident on 24th November 2009 involving Hamish Robb, Josef initially said that he had been pretending to hurt Hamish but then could not control himself and did hurt him. Josef then told Mrs Henry that was not an accurate account: Hamish had been winding him up and calling him names, and he had responded. Mr Kelly told him off “more badly” than Hamish. Mr Kelly’s response was that he had given Hamish a detention and written to Hamish’s mother about his behaviour on this occasion. He continued:

“The part about Josef not intending to hurt Hamish can only be answered by Josef. However, from my perspective, when one student has another student pinned to the wall by the throat and is repeatedly kneeing him it would suggest an intent to cause injury or pain. After this incident Josef was told to report to Room 12 at lunchtime. … As I recall the point where Josef became visibly upset was neither when he was hurting Hamish, nor when I first spoke to him (in front of the rest of the class) but at the point I mentioned I would write to his mother.” v) Josef said that Mr Kelly had told him he could not do things, but when asked to say what things he retracted his complaint, saying it was not right. It is therefore unnecessary for me to refer to Mr Kelly’s response. vi) When Josef and others were talking in a lesson, Mr Kelly said “some stupid people don’t listen to the teachers and should not be at the school”

. Mr Kelly had also told pupils who were talking to shut up. Josef acknowledged that these words were directed at him and others, not at him alone. Mr Kelly denied using the words quoted. He said he did on occasions tell pupils to shut up if his repeated instructions to be quiet had no effect.

[168]Mrs Henry remarked in cross-examination that in the light of her discussion with Josef, there was nothing which caused her to have a high concern for his welfare, particularly as he was quite happy to be in Mr Kelly’s lessons several times a week. She found it strange that Josef did not want to face Mr Kelly for 10 or 15 minutes of registration in the morning, and yet was happy to face him for 3 or 4 hours per week in PE lessons which involved “a much higher level of interaction” – and which, I would add, were the setting for the majority of Josef’s complaints of unkind treatment. In my judgment, that was an entirely reasonable view for her to take. None of the specific matters raised by Josef gave any cause to fear that he was at risk of harm.

[169]Mr Kelly’s evidence was that neither parent had ever raised any concern about bullying with him, and he was unaware of any difficulty until the complaint was made in January 2010. His evidence was that Josef was generally disorganised about his sports kit, and could be aggressive, as he was in the incident with Hamish Robb. Mr Kelly did not know of any reason why Josef wanted to move to a different class. He said that there was no problem with Josef after he returned to his class.

[170]One of the allegations pleaded by the Parents was that Mr Kelly had on one occasion at a school assembly climbed over empty chairs in order to sit next to Josef. No evidence at all was adduced about any such incident, and I therefore reject the allegation.

[171]Mr Kelly was asked in cross-examination whether he had any problems with children who are not white. He said he had none whatsoever. No specific allegation was put to him. In particular, it was not suggested that at any point in any conversation or other dealings with either of the Parents, Mr Kelly had ever said or done anything which indicated or suggested any racist attitude. It may be noted that his present position is as Head of the PE and Games department at the British International School in Shanghai.

[172]On 20th January 2010 Josef saw the school nurse with a bruise on his forehead. The account he gave, as recorded by the nurse, was that he had banged his head on a locker when another pupil accidentally pushed the locker door. The nurse carried out appropriate head injury observations, and called Dr Rao. In cross-examination of Mrs Dorrington it was hinted, though not put in terms, that her assessment of this head injury was not sufficient. However, no such complaint seems to have been made at the time, even though Dr Rao was immediately contacted about the matter, and there was no evidence put forward by the Parents to suggest that this was anything other than a minor and accidental injury, and I accept that Mrs Dorrington dealt with it appropriately.

[173]On 27th January 2010 Josef saw the nurse complaining of a headache and sore throat. Mrs Dorrington thought this might be due to malaria, because Dr Rao had told one of the teachers that Josef had contracted malaria on his trip to Kenya. Later the same day, Josef cut his finger on a plastic aeroplane, which was treated by the nurse with a plaster.

[174]On 2nd February 2010 Josef again saw the nurse, again complaining of a sore throat and also of abdominal pain. The nurse again spoke to Dr Rao and treated Josef in accordance with her instructions. Again, the complaints were thought to be due to malaria.

[175]On 4th February 2010, Johann sustained a fractured clavicle whilst playing football during the lunch break. Teaching assistant Jane Miller was on duty and saw the incident from a distance. She has been a teaching assistant for 11 years, and is clearly well-trained in her role. In addition to what she saw herself, she was given an account by another boy, whom she regarded as reliable. Johann and another boy were both running after the ball, the other boy stumbled and collided with Johann. Johann initially did not appear to be badly hurt: indeed, Jane Miller’s evidence was that at first he wanted to carry on playing football. However, when break ended shortly afterwards it became obvious that his arm was very painful, and the nurse was called. She at once suspected a fracture, and called Dr Rao, who took Johann to hospital. Mrs Dorrington’s evidence was that she would have asked Johann what had happened, because that it is her normal practice, but she could not remember what account he gave.

[176]I accept Jane Miller’s evidence as to the circumstances of this injury. She also gave evidence, which again I accept, that she had never seen anyone bullying Johann, and that she had only ever seen this one injury to him, though she agreed that the staff did talk about him being injury-prone.

[177]This incident was recorded in an accident report by Mrs Rix, which included consideration of steps which might be taken to avoid any recurrence. It was also, correctly, the subject of a report by the School’s bursar Mr Hawkes under the RIDDOR regulations pursuant to the Health and Safety at Work, etc, Act 1974. I would add that this was the only incident about which I heard which the School were obliged to report under the RIDDOR regulations: the Parents’ submissions about the School having failed to report “near misses” were based upon a misunderstanding, because the School was under no obligation to report a “near miss”.

[178]Mrs Rix gave evidence about this incident. She was criticised for not having asked Johann for his account, but I accept her evidence that she did, and that his account did not cause her to doubt what others had told her, and what she wrote in her report. I also accept that she spoke to the other boy involved in the collision, whose account was also consistent with what was in her report.

[179]When specifically asked by me to clarify what case she was putting in cross-examination, and what alternative version of events she wished to put forward, Dr Rao was unable to do so. She made it clear that she did not accept that the injury to her son was accidentally sustained in the circumstances described by the School, but she conceded that she did not know what really happened. On the assumption that she must have asked Johann, the fact that she had no alternative version to suggest is revealing.

[180]I find that this injury to Johann was the result of an accident whilst playing football at break time. There is no evidence to suggest any other cause. I also find that there is no evidence to suggest any lack of adequate playground supervision or any lack of proper vigilance by Jane Miller or anyone else involved in that supervision. It was, in my judgment, an accident which could not reasonably have been prevented.

[181]In a letter dated 16th February 2010, the Parents referred to the recommendation in the accident report that there should be continued vigilance on the playground by those supervising, and said – “We drew the attention to Johann’s accidents and incidences in the playground of concern to us last term to Pat [Themistocli]. These related to injuries and bullying. We also noted and mentioned that these incidences seemed to happen when certain members of staff were on ‘watch’. We would be grateful if Johann would not be placed to play where Jane Miller is supervising.”

[182]The Parents contend that the School should have acceded to their request that Johann should not be in the playground when Jane Miller was on duty. Mr Palmer’s response in evidence was that he felt that was an unreasonable request because it implied that Jane Miller had been in some way at fault. I agree: there is absolutely no evidence that Jane Miller had been in any way neglectful of her duties, and it is simply illogical to say that changes to the School’s routine, and to Johann’s routine, should be made merely because Jane Miller happened to be on duty when an accident occurred. Although I sought clarification from Dr Rao, it was never clear to me how exactly the Parents wished their request to be implemented, beyond a suggestion that Johann might have been sent to the library to sit there on his own in order to keep him away from a playground supervised by Jane Miller. I agree with Mr Palmer’s evidence that it would have been unfair to Johann to impose that regime upon him and to tell him that he could not go out to play with his fellow pupils.

[183]On 22nd February 2010 Josef again saw the nurse, who noted “abdo pain ? cause”. The report actually gives the pupil’s name as Johann, but Mrs Dorrington’s evidence before me was that that was an error and should have named Josef.

[184]Mrs Dorrington’s evidence was that she did have a conversation with Dr Rao about Josef’s complaints of abdominal pain. Her recollection was that Dr Rao suggested that anxiety could be a factor, and she agreed with that suggestion because “it is very often the case that anxiety can cause abdominal pain. … Obviously, there are lots of other reasons why you can have abdominal pain, too …”. She went on to say that Josef’s complaints of abdominal pain were not particularly frequent, and she had “no recollection of feeling that he was particularly anxious or avoiding his lessons”.

[185]On 2nd March 2010 Dr Rao wrote to Mr Kelly. The letter reads in part as follows:

“We would be grateful if you refrained from using words such as ‘idiot’ when referring to Johann, either when he is on his own or in the presence of his peers. He was deeply offended yesterday and did not have a good night on account of it. He and we are worried that this may continue during today’s PE lesson. We hope this will not be the case. The safety of Johann, both physical and emotional at St Chris is paramount to us. You are aware that he is recovering from a serious physical injury sustained at school. What he sustained yesterday from you left him not sleeping well just as he did not sleep well when his collar bone was broken.”

[186]I heard no evidence from Johann about this incident. I did hear evidence from Mr Kelly, who told me that Johann – “was running around the changing rooms with another student, charging up and down past the hooks and the clothes whilst other students were trying to get changed, and the line I used is ‘You’re behaving like idiots’.”

[187]I accept that evidence. In my judgment this was a trivial incident, not in any way indicative of any personal hostility towards one of the Boys, which has been exaggerated into an allegation of conduct said to show unfair treatment.

[188]The Parents allege that Johann suffered many other injuries, which were not recorded by the School as they should have been. However, it seems to me to be reasonable to assume that Johann would have told his parents about any injury of any significance, and that they in turn would have made reference to that injury in one of their many communications with the School. The only specific incident which is alleged is that on an unspecified date, Johann was struck on the head by a cricket ball, causing him to vomit. It appears to be the Parents’ case that this happened during a lesson, because the pleaded allegation is that Johann “was not sent to the School nurse, but told by a member of staff to sit on the bench in the PE class”. The school nurse Mrs Dorrington told me, and I accept, that she had no recollection of any such incident. Mr Kelly told me, and I accept, that hard balls were not used for the relevant age group (rather, soft balls known as wind balls, so that the pupils did not need to wear protective clothing), and that no such incident ever happened. Dr Rao in cross-examination of Mr Kelly said that she had noticed an injury to Johann’s head when he came home, and she had asked about it but Johann did not want to tell her. She said it was not until after he had left the School that Johann told her he had been hit with a cricket ball. That in itself is surprising. In any event I find it simply incredible that a young boy could have been struck on the head by a hard cricket ball, and caused to vomit, without any member of staff doing anything about it. Such an impact would clearly be capable of causing serious injury, and there is no reason to think it would not be treated with appropriate seriousness. The fact that the allegation has been put forward is revealing: in my view, the best that can be said is that the Parents have accepted an improbable assertion without questioning it, and have willingly used it as an example of the School’s alleged failings.

[189]More generally, the Parents allege that Johann often came home from the School with “bandaged” injuries and smelling of TCP. Mrs Dorrington gave evidence about this. She said that she rarely applied bandages, and had no recollection of ever having done so with Johann. She also said that she was solely responsible for the supply of all first aid medications throughout the School, and that TCP was never used in the School.

[190]Jane Miller also said that the School did not bandage any injury to Johann. She said that Johann did sometimes come into school with a bandage that had been applied at home. She added that on the occasions when those bandages worked loose, and needed to be replaced, she had never seen any visible injury beneath.

[191]Dr Rao in her evidence repeated that Johann on occasions came home smelling of TCP, but rather retreated from her allegation of frequent bandaged injuries. Although she had some difficulty in responding to the specific question asked, I understood her in the end to be saying that she had applied bandages in two situations: sometimes to replace a different type of dressing which had been applied by the School; and sometimes to draw attention to an injury which the School had not dressed. In the latter regard, she made the point that she may have been better able than some of the School staff to detect bruising on dark skin. She therefore appeared, at least implicitly, to concede that Johann did not come home with “bandaged injuries”. I accept her evidence as to why she applied bandages, but of course that leaves unexplained her reasons for making and pursuing the incorrect assertion that Johann “regularly returned … with bandaged injuries”.

[192]Dr Rao in her witness statement said that the “high frequency and seriousness of Johann’s injuries” were caused by “bullying or victimisation together with a deliberate failure to report and record injuries”. Having considered the totality of the evidence, I reject that allegation. I see no merit in the argument, put forward by the Parents in their closing submissions, that repeated minor injuries to Johann “may show there is a bully around”: if that were the position, one would expect the Parents to be able, with the assistance of their son, to identify the bully concerned. I therefore see no basis on which to draw the inference of bullying for which the Parents contend. It is common experience that some boys are more injury-prone than others, and the Parents have emphasised Johann’s sporting prowess and vigorous activity. I accept that he had more injuries than his brothers, and it may well be that he had more injuries than most other boys of his age; and I accept of course that the fractured clavicle was a serious injury, and that the fall from the tree could have resulted in serious injury. In my judgment, however, the frequency and severity of injuries were not such as to give rise to any inference of fault on the part of the School, still less of deliberate wrongdoing by members of staff. Mrs Rix in answer to cross-examination on this point said that there was no pattern of Johann being injured any more than other children, and his record of accidents was nothing out of the ordinary. That evidence from a highly experienced teacher was not contradicted by any other evidence, and I accept it. It is not undermined by the Parents’ subjective view that Johann suffered more injuries than others. On the evidence I have seen and heard, I find that all the injuries which Johann has been shown to have sustained were accidental injuries. The complaints procedure

[193]Having completed that summary of events involving the Boys at school, I return to the letter of 11th January 2010 in which Mr Palmer told the Parents that their letter would be treated as a formal complaint. I say comparatively little about the complaints procedure which was followed, because in my view little turns on the various issues which the Parents have raised about it. That is because by the time the procedure began, all the events which are said to show breaches of contract by the School had occurred.

[194]The School’s procedure involves the use of a form summarising the complaint, the evidence supporting the complaint, the outcome or remedy sought and the Head’s response. The Parents declined to complete such a report on the ground that they had already made their position clear in correspondence. That was an unhelpful approach to adopt, even if well-founded in fact: on any view, it would have been an advantage to all concerned to have the complaints conveniently summarised in the format of the form. In any event, the Parents’ stance was in my judgment not well-founded in fact. On the contrary: they had consistently failed to make their complaints and allegations clear.

[195]The Chairman of the Governors endeavoured to create a standard form stating the Parents’ complaints, and sent a draft to the Parents on 9th March 2010. When they declined to deal with it, he prepared a revised version.

[196]On 16th April 2010 Mr Palmer wrote to the Parents referring to the fact that the Governors were looking into their concerns, and reiterating (as he had already said in a letter a few days earlier) that the Boys could not return to the School until their fees for the preceding and next terms were paid. He concluded “Please do not bring them in on Monday unless you pay your fees at the time”. The Parents replied the following day saying that they were willing to place a full year’s fees plus any extras with a firm of solicitors, those funds to be “released to the school when the Chairman has responded to our concern”.

[197]On 19th April the Parents went to the School and spoke to Mr Hawkes. They reached an agreement, which Mr Hawkes recorded in an e mail sent at 1212 that day in the following terms:

“You agreed that you would arrange a bank transfer to the School today for the outstanding fees and extras for the Spring Term and the fees for the Summer Term … [details were given of the relevant invoices, amounting in total to £23,801] … The School has taken your promise to pay in good faith and the boys joined classes this morning on the basis that the fees have been paid in accordance with the School’s terms and conditions. I would be grateful if you could e mail me to confirm when the transfer has taken place so that we can trace it in the School’s account. I can confirm that your complaint continues to be taken very seriously by the School and I hope that the complaints procedure that is being followed will provide a satisfactory response to your concerns.”

[198]That e mail is consistent with the transcript of a covert recording of the meeting which Dr Schymanski had made. It is clear from the transcript that the Parents sought to distinguish between certain actions taken by the Head and actions taken by the Chairman of the Governors, but I think it unnecessary to go into that because in my view nothing turns on it. More importantly, Mr Hawkes made it perfectly clear that the Parents, who already owed one term’s fees, would not be permitted to embark upon another term of education without payment. Dr Schymanski expressed the view that their long standing complaints had only started to be addressed “when the money has stopped coming”, a view with which Mr Hawkes disagreed. Dr Schymanski said the Parents would pay the fees when they received a reply from the Chairman. Mr Hawkes maintained the School’s position, namely that the Boys would not be allowed back unless the fees were paid, and eventually the Parents agreed to pay “as long as we are taken seriously”. Dr Schymanski said that the necessary funds were available, but would have to be transferred into the cheque account and should therefore be available “early next week”.

[199]In cross-examination of Mr Hawkes, it was suggested that the agreement reached was that the School would take the Parents’ complaints seriously by taking action, in particular “transferring Josef to a place where he was more comfortable with being”. Mr Hawkes did not agree. I reject the suggestion that the School agreed that they would not only allow the Boys to return but also transfer Josef to another class. The Parents’ own covert recording provides no support for that contention. I find that the School were taking the complaints seriously by initiating the formal procedure which was established to deal with such matters.

[200]Dr Schymanski replied to Mr Hawkes by e mail at 1501 saying that the Parents “have today started the process of making the transfer of funds to the school as per invoice you gave us this morning in good faith”, and saying they would forward details of the transfer “as soon as they are available”.

[201]No payment was in fact made. Neither of the Parents gave any evidence explaining why they did not do what they had agreed to do. Nor did they provide any evidence that any relevant transfer of funds ever began at all. I find that when they told Mr Hawkes that they would arrange a bank transfer that day, they had no real intention of doing so. They knew that if they did not agree to make that payment, their sons would not have been allowed back into the School. I find that they therefore made a promise which they had no intention of keeping.

[202]Mr Hawkes sent e mails chasing the promised fees. The Parents did not reply.

[203]By April, the Parents had sought to involve Hertfordshire CSF, arguing that child protection issues had been raised and had not properly been addressed.

[204]The Parents e mailed Pat Themistocli at 0754 on 28th April 2010, in the following terms: “We have enclosed a recent case of a child in a school in London with very disturbing similarities. The outcome as you can see is even more disturbing. As Richard [Palmer], and presumably the school, does NOT consider our concerns child protection matter, we assume that nothing is happening and therefore anyone of our three children are at risk of this serious outcome. It is over a week since the school contacted the liaison officer. We have not heard anything yet, we would like to know where matters have got to so far”.

[205]The enclosure to which the Parents referred was a newspaper report of an inquest into a very sad case of a 9-year old boy from Hackney who was found hanging at his home in January 2010. It is important to note that the coroner recorded an open verdict, although the Parents throughout the hearing before me seemed to assume that it was a case of suicide. The newspaper report indicated that the deceased boy “had been sent home from school for touching a girl inappropriately” on the day that his mother found him hanging. It further indicated that some 3 months before his death the deceased boy had written on a “reflection sheet” at school that he felt he wanted to kill himself, a fact which the school concerned had not communicated to the boy’s mother. In addition, the report said the deceased boy “had taken nearly a year out of primary school in a bid to calm his behaviour and was receiving help from a psychiatric nurse. In the weeks before his death, he told school staff he was being bullied but … his claims were dismissed as a bid for attention”.

[206]The Parents sent the same report to Mr Anderson, under cover of an e mail on the morning of 29th April 2010, which said “We have enclosed a case ongoing in London inner-city school. There are disturbing similarities with disastrous consequences. Frank apparently has inappropriate behaviour with girls isolated to St Chris only. Very worrying.”

[207]Mr Anderson’s evidence, which was not contradicted and which I accept, was that this e mail came out of the blue: he had received no negative comments from the parents about Frank at all so far that year. He therefore replied to the Parents saying “I am very confused/concerned by your e mail. I can see no similarities with Frankie at all. Has something happened I don’t know about?”

[208]The Parents also sent a copy of the newspaper report to Mr Palmer. He too replied that he could see no correlation with anything at the School.

[209]The Boys did not attend the School that day.

[210]The Parents have never spelled out in correspondence with the School, or in their evidence to me, why they say the sad death of the 9 year old boy in Hackney was regarded by them as having striking and significant similarities with the education of any of their sons. They nonetheless made clear that it was their reading of this newspaper report which caused them to take the Boys out of the School, and so gave rise to their counterclaim for the costs of education elsewhere. Dr Rao, when asked in cross-examination to identify the suggested similarities with the boy in Hackney, identified only the following: an allegation of touching a girl inappropriately, and being the victim of bullying. Dr Schymanski added the further similarity that the boy in Hackney appeared from the newspaper report to be of a similar colour to the Boys.

[211]On 29th April 2010, in a letter sent by special delivery, Mr Hawkes wrote to the parents pointing out that the School had still not received any payment, and that his e mails chasing the outstanding fees had gone unanswered. He said:

“The boys should not return to the School after the weekend unless the School has received payment in full by that date, nor will they be able to return until full payment is received. For the avoidance of doubt, this means that the School must have cleared funds in its bank account before the boys may return. I have confirmed this with Richard [Mr Palmer] and the Chairman of Governors.”

[212]No reply was received to that letter, but the Boys did not return to the School on 30th April 2010 or at any time thereafter. They remained on the School roll for many months. That led, in September 2010, to the School’s being advised that it must report the Boys’ non-attendance to the Local Education Authority.

[213]On 14th May 2010 the Parents wrote to the Chairman of Governors in connection with the complaints procedure. In the course of this letter, they said that the SOLE reason (their emphasis) that the boys had not returned to the School was “due to the similarities with the Hackney child and our belief that any one of [the Boys] would have been at real risk of the disastrous outcome”. They wrote in similar terms to Mr Palmer on the 15th May 2010, saying amongst other things that a representative of the local authority – “… informed us that the School informed her that the children were at home because we had NOT paid school fees. This statement is malicious and not true. Please note that the SOLE reason why Josef, Frank and Johann are not at St Christopher’s and have been away from St Chris is because we believe that any one of them is at real risk of the disastrous outcome as happened to that boy of similar age in Hackney. This information we relayed to Pat as well.”

[214]In reply to that letter, Mr Palmer wrote on 18th May:

“We have not made any referrals to the local authority Safeguarding team. We did telephone our School Liaison Officer, Jane Hardy, to notify her of your concerns should you make contact but there was no referral as such. I informed you of the notification in my letter of 16 April. Jane Hardy liaised with the Local Authority Designated Officer (LADO) who deals with allegations. Their view, then and now, is that the matters you allude to are not safeguarding issues. Since that time, you have referred your concerns to another department and they passed this on to Jane Hardy (who was by then already aware of your concerns). I then met with Jane Hardy who, as I understand it, remains of the view that your concerns are not safeguarding issues.”

[215]On 20th May 2010 the Parents entered into an agreement with Tutors International LLP for the private tuition of the boys from 24th May to end of July 2010 at a total cost of £24,000. Dr Rao said this was an emergency step, not an indication that the Parents had already decided – in advance of the panel hearing - that the Boys would not return to the School. I accept that evidence.

[216]On 29th May 2010 Dr Rao met Mr Caller of Tutors International. His evidence, which I accept, was that by way of examples of her complaint that the boys had been victims of racial bullying, Dr Rao alleged that staff had encouraged Johann to climb a tree, knowing that he would fall and injure himself, their motive for doing so possibly being to prevent him from performing in a concert. She further alleged that staff had deliberately locked a cello in a room so that one the Boys could not practise. Both incidents, she alleged, were motivated by the racist views of members of staff. Before me, the Parents adduced no evidence to justify these allegations.

[217]The Parents also engaged Mr Stephen Cresswell as a private tutor for Johann and Frank in the evenings and at weekends. He was called as a witness for the Parents. He affirmed the truth of his witness statement. The contents of that statement were rather remarkable: for example, he expressed the view that the School should be closed down. In cross-examination he said that view was based on what Dr Rao had told him, none of which he had sought to verify for himself, and on his experience of Johann becoming very upset when he first tutored him. He said the report of the speech and language therapist who assessed Frank had not been provided to him. He acknowledged with some reluctance that his own observations of Frank were that Frank’s linguistic comprehension and verbal and written expression were not as good as his ability to read aloud would suggest, but that he had failed to include that in his witness statement. He accepted he should have done, and said he had omitted it because Dr Rao did not want him to include any negative comments about Frank in his witness statement. He agreed that opinions expressed in his statement were based on what Dr Rao had told him.

[218]I am afraid I found Mr Cresswell’s evidence very unimpressive. When he made his witness statement, and declared the truth of its contents, he was in my judgment largely acting as a mouthpiece for the Parents’ views, and in many respects was not speaking of matters within his own knowledge. I can attach no weight to any of his evidence which is relied upon by the Parents, because I cannot be confident that any of it represents his own objective assessment uninfluenced by the Parents’ views. Nor can I attach any significant weight to his evidence about the Boys being upset when he began to tutor them: I can accept that may well have been the case, but there are many possible reasons why the Boys could have been upset at that time, and I see no basis for inferring that the probable explanation was (as the Parents contend) that they had been traumatised by their experiences at the School.

[219]I also heard, and accept, evidence from Mr Arthur House, who was engaged as a tutor through Tutors International. He said that teaching the Boys was initially challenging:

“I found the Boys badly behaved, ill-disciplined and … I found them reluctant to do as I asked, and mistrusting of my presence in the house.”

[220]Mr House said that their behaviour did improve over the period of 10 weeks in which he tutored all three. He observed the Boys to be gifted in some ways and to have some challenges in others, but declined – rightly – to speculate about how they had arrived at that point.

[221]The Parents raised a number of complaints about the provision of documents to them before the panel hearing. I do not believe the criticisms which they make of the School in this regard are well-founded. In any event, they are in my judgment irrelevant to the issues which I have to decide, and I therefore say no more about them.

[222]On 9th June 2010 the panel heard the Parents’ complaint. The procedure to be followed had been indicated in a notice dated 27th May 2010, and copies of relevant documents had been circulated. The panel was chaired by a Mr Davidson, who was not connected to the School. The other two members of the panel were Governors of the School. One of them was a recently-retired paediatrician who had been a Designated Doctor for Safeguarding Children, and had also been the Chair of a Social Services department in an area of London. The Parents were assisted at the hearing by a member of the Hertfordshire BME Advocacy Service.

[223]It was a lengthy hearing. I do not think it necessary to go into the details, which are recorded in notes made by Mr Hawkes. In the course of the hearing the Parents expressed concern about the fact that Jane Miller had been the teaching assistant on duty in the playground when Johann suffered his broken collarbone. They said that nothing ever happened to Johann when Mr Anderson was supervising the playground, but that when Jane Miller was on duty Johann was bullied and called names. Notwithstanding those complaints, the Parents said nothing to suggest that Johann had given an account of his injury which differed from the circumstances recorded in the accident report. As to the issues relating to Josef and Mr Kelly, the Parents said that Josef told them that Mr Kelly made his life very difficult and that he believed that was because he was brown and Mr Kelly did not like brown boys. As to Frank, the Parents confirmed that all issues about speech and language were now improved, but denied that the School had played any significant part in that improvement.

[224]On 21st June 2010 the Chairman of the panel wrote to the Parents setting out the Panel’s findings. In summary, these were: i) There was no reason to believe that the injury to Johann’s collarbone had been anything other than accidental. ii) There was no evidence that any playground accident suffered by any of the Boys had been caused or incited by a member of staff. iii) The panel believed that there had been a fair investigation by Mrs Henry of the allegation that Josef had been victimised by Mr Kelly, and “acknowledged the force” of Mr Palmer’s view that pupils and staff should be encouraged to resolve differences between them and learn to work together, rather than simply removing a pupil from an area in which a difficulty had arisen. iv) Mr Kelly had used the word “idiot”, but not directly towards Johann, and had also used the same word of another boy who was misbehaving in the changing room. v) There was no evidence to support the complaint that Mrs Rix had not taken seriously the Parents’ concerns regarding the welfare of the Boys. vi) Frank had made considerable progress and his speech and language were no longer problems. vii) As to the Parent’s complaint that Mr Palmer had logged a complaint on the Parents’ behalf, when all they sought was clarification of issues they had raised: Mr Palmer had said that if the parents did not withdraw their serious allegation of racial discrimination, it would have to be regarded as a formal complaint, and the panel had thereafter been convened in accordance with the School’s complaints procedure. viii) The panel was convened to listen to concerns which the Parents complained had not been answered by Mr Palmer. ix) The School, with the Parents, had taken steps to address Frank’s developmental needs, and noticeable progress had been achieved, though it was difficult to allocate responsibility for the success. x) The panel found no evidence that the School had failed to exercise reasonable skill and care in respect of the education or care of any of the Boys. xi) Mr Palmer appeared to have made every effort to address the concerns of the Parents, but he must be the judge of what is best for an individual pupil and for the School as a whole. xii) Finally, the panel noted that in response to the Parents’ enquiry, as to what they were paying for, Mr Palmer had referred to the School’s role as a provider of education.

[225]I must quote in full the panel’s finding in relation to the overriding concern that the Boys had been discriminated against on grounds of race:

“1. The School had policies in place to prevent and to monitor racial incidents and discrimination. 2. The policies had been reviewed by the Independent Schools Inspectorate at the full inspection in February 2010 and no concerns had been raised. 3. The panel considered the implementation of these policies in practice and found no evidence that they had not been adequately or appropriately applied. 4. The panel noted that an internal investigation into claims of racial discrimination by Paul Kelly had been carried out by the Deputy Head, Emma-Kate Henry, and that it had been properly carried out. Whatever issues had arisen between Josef and Paul Kelly, there was no evidence that these had their basis in racial discrimination on the part of Paul Kelly and no evidence that Josef had received treatment different from that accorded to other pupils. 5. While acknowledging that the parents had genuine concerns about the welfare of their children, the findings have had to be based on the evidence and documentation available to the panel. Recommendation: Notwithstanding these findings, the panel recommends that the School consider specific training as part of its continuing School-wide staff development programme in equal opportunities and diversity.”

[226]Following that decision, Mr Hawkes continued to chase the outstanding fees. The Parents’ response, in an e mail of 13th July 2010 was that they “believe all this was part of the complaint that currently has not concluded”. On 16th July Mr Hawkes wrote warning the parents that legal action would be taken if the outstanding fees were not paid within 14 days.

[227]On 20th July 2010 the Parents sent a long e mail to the Director of Hertfordshire CSF, alleging that the Boys had been the victims of severe and progressive safeguarding failures which the School had sought to conceal by a “cover up of a colossal nature”, and further alleging “obvious collusion” between the School and one of the Director’s staff. As a result, they alleged, there had been an “appallingly cavalier approach of safeguarding issues directed towards our three sons, even at the stages of panel hearing of a complaint”.

[228]On 27th July 2010 the Parents entered into a further agreement with Tutors International for the private tuition of Josef, in England and in Kenya, for 12 months commencing on 1st September 2010, at a cost of £69,000. The Parents had not attempted to place the Boys, or any of them, at a state school. There had been attempts (in which Mr Caller was actively involved) to find places for the Boys at a number of independent schools, none of which had been successful. The Parents allege that the School influenced other schools against the Boys. There was no direct evidence to that effect, though it is accepted that the School did truthfully say, when asked, that the Boys’ fees were not paid up to date. I find no basis for any allegation that the School improperly influenced other schools against the Boys. I note that in this respect also Dr Rao was once again quick to make serious allegations against others, asserting that a number of schools had written to her in terms which did not honestly state their true reasons for declining to accept one or more of the Boys.

[229]Mr Caller told me that he had offered to try to resolve the dispute between the Parents and the School because he thought it would help the boys to get back into a school. He went to see Mr Palmer. Mr Caller said that Mr Palmer had indicated willingness to resolve the problem if the Parents were willing to do so, but added that unfortunately he “could not persuade Dr Rao to see that that would be in the boys’ best interests”. His view was that the School had listened to the Parents’ complaints and had done everything that a reasonable school could do.

[230]In the latter part of 2010 there was continuing correspondence in which the Chairman of the Governors responded to criticisms made by the Parents of the complaints procedure. I do not think it necessary to go into the details of this.

[231]Nor do I think it necessary to go into the criticisms which the Parents make of Mr Hawkes’ role in the work of the panel. I do not see any substance in those criticisms, but in any event they are in my view irrelevant to the issues which I have to decide.

[232]Having set out the facts, and many of my findings of fact, I can now draw the threads together, consider the relevant law, and indicate my overall conclusions.

[233]As I have said, the principal issues between the parties are factual ones. The legal principles which the court must apply are for the most part uncontroversial, and I can summarise them briefly.

[234]The School’s claim is a simple action in debt. The Parents have raised no defence to it other than the alleged breaches of contract by the School which form the basis of their counterclaim.

[235]The terms of the three contracts between the parties are set out in the written terms and conditions to which I have referred. The Parents contend that in addition to those express written terms, there should be implied the further terms set out at paragraph 22 above. The circumstances in which a court will imply a term which the parties to a contract have not expressed were considered in the well-known case of AG of Belize v Belize Telecom Ltd

[2009] 1 WLR 1988

, in particular at paragraphs 17 – 27. The court cannot imply a term merely because the court feels that its inclusion would be a desirable addition to the contract: once the parties have made their agreement, the purpose of the court is to find the true meaning of that agreement, not to try to improve it. A term can therefore only be implied if, taking the agreement as a whole, the implied term reflects what the agreement would reasonably be understood to mean. Thus a term will only be implied if the parties must have intended it to form part of their agreement, even though they did not say so. Paragraph 26 of the judgment delivered by Lord Hoffmann, referring to an earlier decision, sets out the different ways in which the test for implying a term has been formulated: “(1) it must be reasonable and equitable; (2) it must be necessary to give business efficacy to the contract, so that no term will be implied if the contract is effective without it; (3) it must be so obvious that ‘it goes without saying’; (4) it must be capable of clear expression; (5) it must not contradict any express term of the contract”.

[236]Applying those principles to the present case, I accept the School’s submission that, save to the very limited extent admitted in paragraph 4 of the Reply and Defence to Counterclaim, the court should not imply any of the terms for which the Parents contend. My reasons can be simply stated: the suggested implied terms either add nothing to clause 7(b) of the agreements, and are therefore not necessary; or they do no more than restate the School’s admitted contractual and statutory obligations, and are therefore redundant; or they are so vague and imprecise that they cannot properly be implied by the court.

[237]The Parents need not be troubled by that conclusion, because in my judgment clause 7(b) does in any event provide a sufficient contractual setting for their allegations of breach of contract, if those allegations were factually well-founded.

[238]Having thus reached my conclusion as to the terms of the contracts between the parties, I turn next to the Parents’ contention that there has been a total failure of consideration on the part of the School. In my judgment, that contention has throughout been unsustainable. A total failure of consideration only arises where there has been a complete failure by one party to perform its obligations under the contract. It follows that if the innocent party has received any benefit under the contract, the consideration will not have failed totally: see Chitty on Contracts, 31st ed, at paragraph 29-056. Here, the School claims the unpaid fees for the spring and summer terms of the academic year 2009-10. All three Boys were educated by the School throughout the autumn and spring terms. The Parents gave no notice to terminate any of the agreements, and presented all three Boys for education by the School in the summer term, before withdrawing them without notice because of their reading of the report of the inquest into the death in Hackney. Even then, the Parents did not formally seek to end their contracts. Plainly, therefore, the Parents have received benefits under each of the agreements, and there has not been a total failure of consideration.

[239]It is next necessary to consider the Parents’ contention that clause 7(b) goes to the root of the contracts between the parties, and that the School’s alleged breaches of that clause entitled them to treat the contracts as at an end. They rely on that contention as justifying their failure to pay the outstanding fees, and thus as a defence to the claim. Of course, the contention only becomes a live issue if the School is shown to have been in breach of clause 7(b) of all or any of the three contracts. It is however important to note that, even if a party to a contract becomes entitled (by reason of the other party’s breach of contract) to treat the contract as at an end, he is discharged from any obligation to perform his future obligations under the contract, but is not relieved from his obligations which have already accrued due (see Chitty, paragraphs 24-049, 24-050). The effect of this principle, in simple terms, is that even if the School were in breach of contract, such that the Parents were entitled to treat the contracts as at an end in the summer term of 2010, the Parents would not thereby be relieved of their obligation to pay the fees which had already accrued due.

[240]Turning to the allegations of racial discrimination, the Parents’ case is clearly that there has been direct and deliberate discrimination. This is not, therefore, a case in which it is necessary to consider issues of indirect or unconscious discrimination. As is clear from the decision of the Supreme Court in R v Governing Body of JFS

[2010] 2 AC 728

, in particular in the speech of Baroness Hale at paragraphs 54 – 64, the court when considering an allegation of racial discrimination must consider two questions: has there been less favourable treatment? If so, was it on grounds of race? I have adopted that approach in considering the evidence in this case.

[241]Turning at last to my overall conclusions, I say at the outset that I have no doubt that the Parents are devoted to their sons, and justifiably proud of them. I am sure they believe that they have throughout been acting in the best interests of the Boys. The evidence shows that each of the Boys has considerable talents and abilities, pursued with admirable vigour in an unusually-full schedule of out of school activities, and it is an unfortunate fact that the issues raised in these proceedings have made it necessary for me to focus in this judgment on some of the less creditable aspects of their behaviour. I have done so because it has been necessary, but the Parents should not think that I am blind to the evidence of the Boys’ considerable academic and sporting achievements. I readily accept the Parents’ evidence that the Boys are prospering at their respective present educational establishments, and I share the hope (expressed not only by the Parents but also by witnesses called by the School) that they will continue to do so.

[242]My overall assessment of the witnesses is as follows. I found that the witnesses called by the School were caring professionals, and I have no doubt that they were honest witnesses, doing their best to give truthful and accurate evidence. Each of them was willing to make concessions where appropriate and to admit to a lack of clear memory where that was the case. Significantly, the covert recordings belatedly disclosed by the Parents have tended to confirm the evidence which the School’s witnesses had already written in their statements. At no point in the trial was any witness cross-examined to the effect that his or her account could not be correct because it was contradicted by part of a covert recording. That is, in my view, a significant factor supporting the credibility of the School’s witnesses. Save where I have indicated otherwise, I accept the evidence of each of them.

[243]In contrast, I regret to have to say that I found the Parents’ evidence unsatisfactory and unreliable. I make every allowance for the difficulties faced by litigants acting in person, and for the passage of time since relevant events; and I make every allowance for the toll which has clearly been taken of them by these proceedings. However, being as favourable to them as I can, I can find no sensible explanation for the persisting vagueness of their allegations and their inability to point to concrete facts as justifying their allegations. Their difficulty did not lie in the forensic presentation of their points: it lay in the fact that for the most part they had no clear and coherent case to put forward, still less the evidence to support that case. In almost every instance, the Parents have failed to make clear what they say actually happened to one of the Boys: instead they have either made vague references to unspecified damaging events, or they have contented themselves with simply refusing to accept the School’s account of events. Neither of the Parents was willing to make any concession, however obviously it was appropriate to do so. Where there is a conflict, and save where otherwise indicated, I unhesitatingly prefer the evidence of the School’s witnesses to that of the Parents.

[244]There is in my judgment simply no evidence of bullying or victimisation of any of the Boys, and no evidence that the conduct of any member of staff towards any of the Boys was motivated by racist views. Mr Kelly has been accused of racism, but no basis for that accusation was even put to him in cross-examination. Mrs Robb has been accused of bullying, but again no basis for that was put to her in cross-examination. Jane Miller has been accused of having in some way caused or contributed to Johann’s playground injuries, but even now it remains wholly unclear what she is alleged to have done or failed to do. Mrs Rix has been subjected to heavy criticism, but only where her actions did not accord with the Parents’ wishes. Ms Themistocli likewise has been criticised but with no specific allegations being made. I am unable to place any reliance on any of the Parents’ allegations which are based on their hearsay accounts of what they say they were told by the Boys, for the following reasons. First, those accounts have not been consistent. Secondly, even if I were able to accept the Parents’ account of what a particular boy said, their evidence appears to indicate a failure on their part to ask the sort of questions which a parent could be expected to ask, and a failure to check the accuracy of the account given. That may be understandable, but it results in allegations being put forward on the basis of nothing more than an assumption by the Parents as to their truth. Thirdly, I regret to say that as the case developed, I found myself increasingly unable to rely on the Parents’ evidence in many respects, and in particular on their evidence as to what the Boys said and did. Dr Schymanski’s covert recording of himself asking Josef whether anyone pushed him from the tree was a worrying indication that anything said by the Boys might be a reflection of what their parents wanted to hear. A similar concern was raised by Mr Caller’s evidence, to which I have referred at paragraph 206 above.

[245]I therefore reject each of the serious allegations of racial discrimination, and racially-motivated bullying, which have been made. Applying the two-stage test to which I have referred in paragraph 240 above, I answer both questions in the negative: on the evidence I have heard, I find no evidence that any of the Boys received less favourable treatment than any other pupil in similar circumstances; and even if I were wrong about that, I find no evidence that any discrimination was on grounds of race. But before leaving those allegations, I think it important to reflect on how the allegation of racial discrimination has progressed during these proceedings. In the Defence and Counterclaim, there was no pleaded allegation of breach of contract based upon any form of racial discrimination: the only allegation of any conduct said to have been motivated by racism was a reference in paragraphs 31 and 44(o) to Johann’s being subjected to “racial bullying by other pupils. He was called ‘poo face’”. In response to a request for further information about the allegation of bullying, the Parents added that all three Boys were fearful of being bullied in the same way as Johann was, “particularly as they were surprised that no adequate steps were taken to remedy the racist nature of the bullying Johann suffered”. Thus far, therefore, the only persons alleged to have behaved in a racist manner were unnamed other pupils. Moreover, in answer to a request for further information about the allegation that Mr Kelly “appeared to have a difficult relationship” with the Boys, the Parents merely pleaded that “Mr Kelly was unsympathetic to the Boys”. The only pleaded allegation of racist conduct by teachers was in paragraph 36 of the further information: “the concerns of the Boys and the Defendants were of bullying/intimidation by members of staff in particular Kelly and Robb (at times of a racist nature, especially in relation to Johann)”.

[246]Yet by the time of the Parents’ closing submissions, allegations of racial discrimination formed a core part of the Parents’ case. They contend that there have been “global welfare failures”, which in their view have been racially motivated. They complain that the School failed to treat the welfare of the children as paramount, instead favouring the protection of its staff, and view this as evidence of “institutionalised racism all the way to directorship level”. The Parents have freely made allegations of racism against a number of persons, even suggesting that counsel and solicitors were guilty of racial stereotyping in their conduct of the case. The basis of that assertion was that counsel had asked the witness Mr Cresswell whether it was Dr Rao who had asked him to write certain sections of his witness statement, with no similar suggestion being made against Dr Schymanski, which is said (in the Parents’ closing submissions) to confirm “the stereotypical attitude that it could only be the black parent who asked Stephen to cheat, not the white parent”. In my judgment this allegation is wholly without foundation and utterly unjust to Ms Dilnot. As the transcript of the evidence shows, the relevant questions asked of Mr Cresswell were preceded by his having said that it was Dr Rao who gave him an account of the ways in which the Boys were said to have been treated at the School. Apart from a compendious reference to “the communications I’ve had with Mr and Mrs Rao” [sic], Mr Cresswell had not mentioned any specific discussion with Dr Schymanski at all. It is therefore not surprising that Ms Dilnot asked about Dr Rao. In any event, the answers given by the witness were to the effect that assertions made in his statement were indeed based on what Dr Rao had told him. It is regrettable that such an allegation should have been made against counsel. I am afraid that it is indicative of the Parents having so convinced themselves that their sons have been the victims of racial discrimination that they have lost all objectivity.

[247]That loss of objectivity has in my view been a prominent feature of the trial. The unhappy reality of the case, in my judgment, is that the Parents have on many occasions come to the view that one or more of the Boys was in some way unhappy or underperforming and have simply assumed that the cause must lie in an unspecified fault on the part of the School. They have either made no enquiry of the Boys, or have contented themselves with an uncritical acceptance of anything said by the Boys even when contradicted by members of the School’s staff, and they have been very ready to make unfair and hurtful allegations against anyone who contradicted their views. It is natural, and commendable, for them to want the best for their sons. I am afraid, however, that they have lost objectivity to such an extent that they would not give the School, or any member of staff, any credit for anything, and would criticise the School whatever action it took or did not take. They have criticised the School for invoking a formal complaints procedure when the Parents did not seek it, but I have no doubt that any further attempts by the School at informal resolution would simply have been met with different criticisms. As the trial progressed, I came increasingly to the conclusion that the Parents simply wanted all matters relating to the Boys to be dealt with exactly as the Parents wished, and would criticise any action taken by the School which did not conform to the Parents’ wishes. At no point throughout the trial did either Parent acknowledge, still less applaud, the many hours which members of staff devoted to speaking to them and corresponding with them. Similarly, when Hertfordshire CSF disagreed with their criticisms of the School, the Parents were equally quick to make serious allegations of collusion against that authority.

[248]I must in fairness add that I am not at all sure that the Parents were fully aware of just how serious some of their unfounded allegations were. An illustration of that is to be found in the attitude of the Parents to Mr Kelly: although they accuse him of being a racist bully, they appear not to have wanted the School to investigate that serious allegation, and it seems that if they had secured a transfer of Josef to a different class, the Parents would have been content to allow Mr Kelly to continue to teach their sons.

[249]I should deal specifically with the Parents’ contention that there was a failure by the School to comply with its statutory obligation to refer to Hertfordshire CSF complaints raised by the Parents which should have been treated as matters of safeguarding child welfare and protection. The School’s case is that none of the matters raised by the Parents fell to be so classified and accordingly were to be dealt with in accordance with the School’s internal procedures. The evidence shows that the School did nonetheless check whether CSF shared its view that no child protection issues were involved, and was reassured that it did. The Parents’ own evidence shows, in effect, that they received a similar response from CSF when they pursued that line of enquiry. In my judgment, the School acted appropriately in this regard, and there is no substance in the Parents’ criticisms.

[250]I should also add that there is scant evidence of anything which could be called bullying of any of the Boys by other pupils. Even if there was, I reject any allegation that such bullying was condoned by any member of staff. If Johann was called “poo face”, it was not a matter known to Mr Anderson. If the Boys’ kit or musical instruments were hidden by other pupils, that was not the result of any act or default on the part of the staff.

[251]The Parents complain that the School engaged an expensive legal team “for what was effectively a premature debt collection exercise when they were as yet to complete a complaints procedure which they had unilaterally engaged”. This is in my view an unrealistic portrayal of the proceedings. The School was left with no option but to sue for its fees, which the Parents promised to pay but then did not pay. The internal complaints procedure had run its course, and the reality was that the Parents simply refused to accept its findings.

[252]I realise of course that these conclusions will be a heavy blow to the Parents. They are, however, the conclusions which the evidence has led me to reach.

[253]In those circumstances, and for those reasons, I find that the School did not act in breach of any of its three contracts. The defence and counterclaim must therefore fail.

[254]I add some further brief points for completeness. Even if the Parents had established any breach of contract by the School, they would have failed to prove that such breach caused them the loss and damage they have claimed. That loss and damage all flows from the fact that the Boys were taken out of the School, and costs were therefore incurred in making alternative arrangements for their education. But the Parents’ case has been that their sole reason for taking the Boys out of the School was their concern that the case of the boy in Hackney was worryingly similar. They had not regarded any breach of contract by the School as a reason for withdrawing the Boys up to that point; on the contrary, they were doing their best to persuade the School to allow the Boys to remain, even though the fees had not been paid. Objectively viewed, it is in my judgment impossible to say that the Hackney case bore any striking similarity to the case of any of the Boys. The Parents are of course entitled to their views about it, but their decision to withdraw the Boys was in my judgment an intervening act for which the School cannot be held liable. In other words, having chosen for reasons of their own to withdraw the Boys, the Parents would not in my view be entitled to recover from the School the cost of educating them elsewhere.

[255]Had the Parents persuaded me to a different view of the merits of their case, it would have been necessary for me to hear detailed submissions as to the measure of any damages which the Parents might have been able to recover. However, I see no purpose in adding to this already-lengthy judgment by saying any more about that. The question does not arise, because the Parents’ case fails on the facts.

[256]I therefore give judgment for the School on its claim in the sum of £23,231.10. It is entitled to recover that sum, and interest thereon.

[257]I also give judgment for the School on the Parents’ counterclaim, which I dismiss.

[258]I provided a draft of this judgment to the parties. I required written submissions on costs and other ancillary matters. I gave directions in that regard in a separate Note. On behalf of the School, Ms Dilnot made timely and helpful written submissions, which I have taken into account. The Parents did not make any submissions, other than an indication of a wish to appeal, within the time limit which I specified. The Parents sent an e mail which suggested they might have misunderstood my directions. In order to avoid any possible unfairness, I allowed them a short extension of time. The Parents subsequently sent an e mail in which they raised certain difficulties caused by some of their possessions and documents being in storage, and courteously asked the court to be sensitive, when making orders, to the welfare of the Boys and to the possible impact on their schooling.

[259]Ms Dilnot’s submissions properly brought to the court’s attention a Part 36 offer which the School had made as long ago as the 5th October 2011, and in relation to which the relevant period expired on 27th October2011. The judgment which I have given is more advantageous to the School than the terms of their offer, and accordingly the costs consequences set out in CPR 36.14 apply unless the court considers it unjust to make such orders. Ms Dilnot also brought to my attention certain features of the Parents’ conduct of these proceedings, including in particular the following matters which are in my view significant: i) The Parents were legally represented at the time when the Part 36 offer was made, and for some 18 months thereafter. Despite that fact, they have never responded at all to the Part 36 offer. ii) On 7th May 2012 the School invited the Parents to agree to attend a mediation. No response was received until the 5th July 2012, when the Parents (who were still represented by solicitors) inexplicably indicated that they were not prepared to attend any mediation until after the trial. During 2013 and the early part of 2014 the School on more than one occasion reminded the Parents that the Part 36 offer remained open for acceptance, and invited the Parents to put forward any counter-proposals which they wished to make. The Parents still failed to respond to the Part 36 offer, and made no proposals of their own. iii) That remained their stance until about two weeks before this trial began, when the Parents agreed to attend a mediation. That mediation process did not result in any settlement being reached. iv) In the course of the proceedings, it was necessary for the School to obtain three “unless” orders against the Parents: in relation to the service of a Defence and Counterclaim, in relation to disclosure and the exchanging of witness statements, and in relation to the belated disclosure of the covert tape recordings (the existence of which only became known to the School when the Parents’ witness statements were eventually exchanged). As to the latter order, the Parents having disclosed the tape recordings indicated that they wished to rely on them and that transcripts of the recordings were therefore needed. The Parents were no longer represented at that stage, and so in practice the burden and expense of preparing the transcripts was borne by the School. v) More generally, the serious allegations made by the Parents made it necessary for the School to obtain witness statements from the substantial number of witnesses whom I have listed in paragraph 3 above.

[260]I do not think it necessary to go into further detail as to the content of the correspondence, written without prejudice save as to costs, which the School has brought to my attention after I had circulated the draft of this judgment. In the light of my decisions of fact, and my judgment in favour of the School on both the claim and the counterclaim, the effect of that correspondence, and of all I have read and seen as to the Parents’ conduct throughout these proceedings, is in my judgment clear. It is as follows.

[261]The general rule, in accordance with CPR 44.2(2), is that the unsuccessful party will be ordered to pay the costs of the successful party. In accordance with that general rule the School, having succeeded, should be awarded its costs of the claim and the counterclaim. The court has a discretion to make a different order, and in deciding how to exercise its discretion the court is required by CPR 44.4 to have regard to all the circumstances of the case, including the conduct of the parties. By CPR 44.5, the conduct of a party includes “(b) whether it was reasonable for a party to raise, pursue or contest a particular allegation or issue; (c) the manner in which a party has pursued … its case or a particular allegation or issue”. There are in my judgment no circumstances which would make it unjust for that rule to be followed. On the contrary, there are compelling reasons why the general rule should be followed. The Parents have made serious and unfounded allegations against the School and against individual members of staff, thereby putting the School to the very considerable expense of pursuing its claim and resisting the allegations against it, and the School has succeeded on all the substantial issues. Reasonable attempts by the School to resolve the proceedings by mediation or by settlement have met with no, or no realistic, response from the Parents.

[262]The School’s claim for interest on the sum awarded to it was in the first instance limited to 1% above base rate. It therefore claims interest at the rate of 1.5% pa until the date of expiration of the relevant period in respect of its Part 36 offer. However, the effect of CPR 36.14(3), is that for the period from 27th October 2011 the School is entitled to interest on the judgment in its favour at a rate not exceeding 10% above base rate, to costs on the indemnity basis from that date, and to interest on those costs at a rate not exceeding 10% above base rate. Again, there are in my judgment no circumstances which would make it unjust for those consequences to flow. Again, there are compelling reasons why the usual consequences should follow, in particular the failure of the Parents to make any meaningful attempts to comply with their duties in accordance with the overriding objective with a view to resolving the issues between the parties, and the Parents’ persistence in pursuing allegations which they have wholly failed to prove.

[263]I therefore give judgment for the School in the sum of £23,231.10, together with interest thereon at 1.5% per annum from the dates when the relevant invoices were due for payment until the 26th October 2011, and at 10.5% per annum from the 27th October 2011 until 21 days after this judgment is handed down. On the basis of Ms Dilnot’s calculation, which I accept, the total award of interest to that date is £7,441.33. Thus the total award is £30,672.43. Interest on that total award will of course accrue thereafter until payment, at the Judgments Act rate.

[264]I further order that the Parents do pay the School’s costs of the claim and the counterclaim, on the standard basis until 26th October 2011 and thereafter on the indemnity basis. If the parties cannot reach agreement as to the amount of those costs, there must be a detailed assessment. The Parents must pay interest on those costs at the rate of 1.5% per annum from the date of payment by the School to its solicitors until 26th October 2011, and at 10.5% per annum from 27th October 2011 until 21 days after this judgment is handed down. Thereafter, interest will continue to accrue at the Judgments Act rate until payment.

[265]At the commencement of the trial, I made an order pursuant to section 39 of the Children and Young Persons Act 1933 that no newspaper report of the proceedings should reveal the name, address or school of any of the Boys or include any particulars calculated to lead to the identification of any of the Boys as being a person in respect of whom the proceedings were taken. That order was made of the court’s own motion: it had not been sought by the Parents, though it was welcomed by them. When the draft of this judgment was circulated, I invited written submissions as to whether it should be continued. The Parents have made no submissions on this issue, other than that which I have mentioned in paragraph 258 above. The School has invited me to discharge the order.

[266]In circumstances such as these, the court must consider competing rights under the Human Rights Act 1998 and the European Convention on Human Rights. The Boys have a right, pursuant to Article 8, to respect for their private and family lives. That right is plainly engaged, for any reporting of this case will involve the public reading about matters which may cause the Boys some embarrassment. On the other hand, the media have a right, pursuant to Article 10, to publish full and accurate information about proceedings held in open court, and the public have a right to receive such information. That right too is plainly engaged. By section 12 of the Human Rights Act 1998, the court must have particular regard to it, and to the extent to which it would be in the public interest for material to be published. There is a very strong public interest in the principle of open justice.

[267]Neither of these competing rights has automatic precedence over the other: see re S (a child)

[2005] 1 AC 593

. The court must focus on the comparative importance of the rights in this specific case, and must have regard to proportionality.

[268]In my judgment, the relevant factors are these. First, the order under section 33 of the 1939 Act (which in any event could only protect the Boys until their respective 18th birthdays: see JC & RT v Central Criminal Court

[2014] EWHC 1041

) spares them possible publication of information about them which may cause them some embarrassment. However, I have endeavoured to make clear in this judgment that each of the Boys clearly has many talents and abilities, and that my necessary focus on certain aspects of their conduct at the School does not diminish their overall merits. I do not believe they will suffer any lasting prejudice if there is such publication. On the contrary, I think it likely that any person reading this judgment will feel sympathy for them.

[269]On the other hand, there is in my view a strong public interest in the media being able to publish accurate reports of these proceedings. I have found that the Parents have made and pursued serious allegations against the School, and against individual members of staff, which were without foundation. I am told that the allegations of racist bullying have been reported in the press, and are therefore likely to have been seen by parents of pupils and prospective pupils of the School. In those circumstances, there is in my judgment a strong public interest in the outcome of these proceedings being known, since otherwise the School and individual member of staff may wrongly and unfairly be thought to have behaved in a reprehensible manner. In my judgment, that public interest substantially outweighs the need to protect the Boys against possible embarrassment. In those circumstances, despite my sympathy for the position of the Boys, it is in my judgment appropriate for me to discharge the order.

[270]I refuse the Parents’ application for permission to appeal. As I have indicated more than once in the course of this judgment, the principal issues in this trial were factual ones, which I have determined on the basis of the evidence placed before the court and my assessment of the reliability or otherwise of the witnesses who gave that evidence. I do not believe that an appeal has any real prospect of success, and there is no other compelling reason for an appeal to be heard. The Parents are entitled to renew their application for permission to appeal to a judge of the Court of Appeal.

[271]For those reasons I give judgment in terms of the Order attached.