B631/02

SHERIFF C A L SCOTT, Advocate

GLASGOW, July 2004. The Sheriff, having resumed consideration of the cause,

FINDS THE FOLLOWING FACTS TO BE ADMITTED OR PROVED:

1. The pursuer is the mother of Aidan Fox-Flynn (hereinafter referred to as "Aidan").
2. The defenders are an education authority. They are responsible for the management of Ashcraig School in Glasgow.
3. Aidan was born on 3 July 1986. He is severely disabled. His clinical presentation is complex. Inter alia, he suffers from the consequences of a left hemispherectomy which he underwent in early childhood.
4. Aidan has a significant level of cognitive and language disability consistent with neurosurgical intervention. The dominant (left) hemisphere of his brain has been surgically removed. His non-verbal skills are more developed than his verbal skills. When Aidan speaks, he uses short phrases or sentences.
5. Aidan has a right homonymous hemianopsia resulting from his neurosurgery. He has a complete lack of vision in his right visual field. As a consequence, Aidan can be startled by things, which, to him, seem suddenly to appear from his right side, given that he has no awareness of their approach.
6. Aidan's ability to anticipate the consequences of his actions is significantly impaired.
7. Aidan suffers from poor peripheral perfusion. This results in him being more easily startled, aroused or angered than would be normal for someone of his age and ability.
8. Ashcraig is a special school. It caters for children with physical impairment and/or chronic or acute health conditions. It is a secondary school. As at 31 January 2002, there were 129 pupils attending the school. There were 40 teaching staff and 22 non-teaching staff.
9. A proportion of the pupils attending Ashcraig have serious physical disabilities but are bereft of learning or behavioural difficulties. Certain of these pupils progress to tertiary education once they leave Ashcraig.
10. The disabilities afflicting many of the pupils at Ashcraig are such as to render these pupils extremely vulnerable. By way of example, some have brittle bones, some are wheelchair bound and some are quadriplegic.
11. Aidan had attended Ashcraig from the Autumn of 1999 onwards. Prior to January 2002, the school had devised and implemented strategies which were designed to cope with Aidan's behaviour. These strategies varied depending upon the nature and degree of the behaviour as and when it arose.
12. Aidan had exhibited violent tendencies prior to his arrival at Ashcraig. Ashcraig's role includes behaviour modification. Aidan responded to the strategies put in place.
13. Ashcraig operates a "better behaviour, better learning" policy. In terms of the school's code of practice, every child attending the school has a right to feel safe within its environment and every child has the right to have their disability recognised.
14. The ultimate responsibility for order and discipline within the school, along with the educational well-being of the pupils, lies with the school's head teacher, Mrs Maureen McGeever.
15. In the normal course of events, any behaviour which threatens the safety of any person within the school is drawn to the attention of the head teacher.
16. In considering what action, if any, to take in respect of such behaviour, the head teacher, inter alia focuses on the individual pupil involved and his or her disability and learning requirements; the circumstances of the incident in question; and the safety of the wider school community.
17. Exclusion of a pupil from Ashcraig school was and is a sanction which Mrs McGeever would apply sparingly. It was a sanction of last resort.
18. Number 6/1 of process is a behaviour management overview relating to Aidan. The overview discloses that between 8 October 1999 and 5 October 2001, Aidan had been involved in numerous incidents of violence at the school. Various strategies and sanctions had been applied in order to modify his behaviour and to afford protection to pupils and staff.
19. Prior to 31 January 2002, Aidan's behaviour was such that he had been excluded from school on two occasions, viz. 30 August 2000 and 22 March 2001. The overview entry for 30 August 2000 records, inter alia that Aidan had punched his escort on the head and kicked the escort on the shin. The entry for 22 March 2001 indicates, inter alia, that Aidan tried to kick a member of staff and spat at another. He subsequently attempted to "reach another pupil", because the pupil had laughed, and, on being restrained by members of staff, he "kicked, spat and punched them."
20. On the morning of 31 January 2002, Aidan travelled to Ashcraig in a taxi, alongwith his escort, Mrs Maureen Harmer. Mrs Harmer was aware of Aidan's disabilities and needs. She was aware of the manner in which Aidan should be approached and managed. The taxi arrived outside the school and stopped. As Aidan got out the taxi, a handle which Aidan was holding onto broke or gave way. This caused Aidan to stagger a bit. He then righted himself and began kicking the taxi.
21. Mrs Harmer tried to persuade Aidan to come away from the taxi. Aidan thrust his hand into Mrs Harmer's face in a "claw like" manner and twisted his hand around. Mrs Harmer was forced backwards as a result of this attack.
22. Aidan's behaviour towards Mrs Harmer was witnessed by Miss Enid Campbell, a Nursing Assistant at Ashcraig. Miss Campbell was escorting a blind pupil. Miss Campbell intervened and told Aidan to come with her to the medical room at the school.
23. Aidan went with Miss Campbell. Miss Campbell had formed the view that Aidan had seemed to be in a temper. Miss Campbell took Aidan to the front entrance of the school and sought the assistance of the assistant head teacher, Mr Doran. Aidan went with Mr Doran to his room.
24. Miss Mary Biggins is a deputy head teacher at Ashcraig. From Aidan's second year at Ashcraig onwards, Miss Biggins had been intimately involved in devising and implementing strategies to cope with Aidan's behaviour. If Aidan had behaved violently, Miss Biggins was frequently called upon to deal with the situation.
25. On occasions, the action taken by the school in response to Aidan's behaviour was to place Aidan on "detention". In Aidan's case "detention" meant spending time with Miss Biggins on a one-to-one basis at which time the incident giving rise to the detention would be discussed.
26. Shortly after the incident involving Mrs Harmer, Miss Biggins was called to Mr Doran's room. She spoke with Aidan and asked him to tell her what had happened. At that time, Aidan was agitated, he was continually moving about and he was physically uptight. He tended to avoid looking at Miss Biggins.
27. Aidan told Miss Biggins that, as he emerged from the taxi, his hand had slipped. He had kicked the taxi. Miss Biggins then asked Aidan if he had anything else to tell her. At that point, Aidan looked away from Miss Biggins. He stated, "I hit her." Aidan then demonstrated the manner in which he had "hit" Mrs Harmer.
28. Aidan was aware that he had "hurt" Mrs Harmer. He stated to Miss Biggins that his behaviour had been "bad". He also stated "Don't tell Mum. Not home." From Miss Biggins' experience of Aidan, that sort of utterance confirmed that Aidan recognised the consequences of his behaviour
29. Mrs McGeever met with Mrs Harmer a short time after Mrs Harmer had been injured by Aidan. Mrs Harmer's face was badly bruised and scratched. The medical staff at Ashcraig considered that Mrs Harmer should attend hospital to have her injuries checked over.
30. Mrs Harmer told Mrs McGeever that the taxi handle had broken and that Aidan had staggered a bit. He then managed to right himself. He kicked the taxi door. Having appeared to calm down, Aidan then grabbed Mrs Harmer's face.
31. When seen by Mrs McGeever, Mrs Harmer was visibly shaking. She was in a state of shock.
32. Mrs McGeever then spoke with Miss Campbell and Miss Biggins, after the latter had discussed the incident with Aidan. Miss Biggins advised Mrs McGeever that, in her view, Mrs Harmer's injuries were the result of a deliberate act by Aidan. Miss Biggins had given consideration to the possibility that the attack on Mrs Harmer was a spontaneous reaction to a mis-managed situation but held to the view that Aidan could have controlled himself but did not.
33. Mrs McGeever considered that Aidan's behaviour on 31 January 2002 amounted to a serious incident given that Mrs Harmer's injuries had resulted in her being sent to hospital. Other pupils in the school were aware or had become aware of the incident and were consequently frightened and alarmed for their safety.
34. Mrs McGeever considered that Aidan had been involved in a particularly violent incident. She was concerned that Aidan would repeat his conduct in a similar manner. Mrs McGeever took account of the fact that many of the other pupils in the school were vulnerable due to their own particular disabilities. Both staff and pupils at the school had approached Mrs McGeever and expressed their concerns anent Aidan's behaviour and its consequences.
35. Mrs McGeever considered that there had to be a period of time during which Aidan remained out of the school; that in the aftermath of the incident involving Mrs Harmer, Aidan's absence, at least in the short term, would serve to "dissipate" the feelings of stress and alarm experienced by pupils and staff; and that with the passage of time, these feelings might diminish.
36. Mrs McGeever decided to exclude Aidan from school for a period of 14 days. She was of the opinion that to allow Aidan to continue his attendance at Ashcraig would be likely to be seriously detrimental to order and discipline in the school or to the educational well-being of the pupils there. She was justified in that view. She considered that no other measure was appropriate in the circumstances. She was also justified in reaching that conclusion.

FINDINGS-IN-FACT-AND-LAW:

1. For Aidan to have continued to attend Ashcraig School in the period after 31 January 2001 would have been likely to be seriously detrimental to order and discipline in the school and to the educational well-being of the pupils there.
2. Mrs McGeever's decision to exclude Aidan from Ashcraig School was, in all the circumstances, justified and reasonable.

THEREFORE, sustains the second and third pleas-in-law for the defenders and repels the pleas-in-law for the pursuer; confirms the decision of the defenders, made on 31 January 2002, and confirmed by the defenders' appeal committee on 7 May 2002, to exclude the pursuer's child, Aidan Fox-Flynn from Ashcraig School, Glasgow; refuses the pursuer's motion to have Margaret Burnell and John Jamieson certified as skilled witnesses; certifies the cause as suitable for the employment of junior counsel; and reserves meantime, all other questions of expenses.

C.A.L. Scott

Counsel for the pursuer had previously indicated that he was no longer insisting upon the pursuer's fifth plea-in-law. That being so, counsel for the defenders submitted that the issue before the Court was confined to the question whether the exclusion of the pursuer's son on 31 January 2002 was justified in terms of Regulation 4 of the 1975 Regulations.

Counsel referred to a long and disturbing history of violence. Notwithstanding that history, Aidan had been excluded on only two occasions prior to 31 January, all in terms of the behaviour management overview.

Staff at the school had adopted strategies over the years and there was evidence to suggest that these strategies had been successful at least to some degree. It was contended that the evidence disclosed that Aidan was aware that certain behaviour was unacceptable. Not all "startling" incidents led to a violent response from Aidan. The Escort involved in the incident on 31 January 2002, Mrs Harmer, was familiar with his disability and knew how to deal with it.

It was not disputed that Aidan had received a fright when the taxi handle broke or gave way. However, he then became angry and began to kick the taxi.

Counsel founded upon the evidence of Miss Biggins whom she described as a very experienced teacher. Miss Biggins was the member of staff normally summoned when difficulties regarding Aidan's behaviour arose.

The head teacher, Mrs McGeever, had discussed the incident with Mrs Harmer, Miss Biggins and Enid Campbell. In addition to what they had to say, Mrs McGeever took account of the pupil and the nature of his disability. She also considered the incident, its severity, and the wider effect it might have upon staff and pupils alike. Mrs McGeever had formed the view that the need to send a member of staff to hospital as a result of such a violent attack pointed to the fact that this was a serious incident and that it fell to be treated as such.

Counsel submitted that Mrs McGeever had formed the view that Aidan was aware that what he had done was unacceptable. She had also expressed concern that other pupils and staff were frightened and that they were alarmed regarding their safety. She felt that she could not be sure that Aidan's temper would not flare up again during the course of that day. In all these circumstances, Mrs McGeever, argued counsel, considered that exclusion was necessary to maintain order and discipline and to maintain the well-being of the pupils.

Counsel for the defenders readily accepted that the correct legal approach to be taken by the Court in the case of an appeal against the making of an exclusion order was that adopted by Sheriff Stewart in the case of Wallace v City of Dundee Council 2000 SLT (Sh Ct) 60. Sheriff Stewart's decision had, more recently, been the subject of approval, albeit obiter, in the context of judicial review proceedings concerning Aidan's exclusion from school. (See: Glasgow City Council, Petitioner 2004 SLT 61).

All that being so, counsel for the defenders sought to persuade the Court, principally under reference to Mrs McGeever's evidence, that the decision to exclude Aidan had been justified in all the circumstances. She stressed the serious nature of the incident which had, after all, involved a violent attack upon a member of staff. Counsel also pointed out that Mrs McGeever had been satisfied on the basis of her investigations that Aidan, on the occasion in question, had understood that what he had done was wrong.

The Court was also invited to accept and rely upon Miss Biggins' evidence.

Mrs McGeever had made it clear that she had taken the nature and degree of Aidan's disability into account but that per se, submitted counsel, was not determinative of whether the exclusion was justified. Other considerations were the safety and well-being of the school community. Mrs McGeever's concern was in no sense abstract; it was based upon concerns expressed to her by pupils and other members of staff. She made it clear that exclusion was not a sanction which she applied lightly. Many previous incidents involving Aidan had not resulted in exclusion. Accordingly it could not be argued that the school had acted peremptorily or rushed to a decision which was ill-considered or rash.

Counsel for the defenders invited the Court to hold that the decision to exclude Aidan had been justified.

Counsel for the pursuer submitted that the Court should uphold the pursuer's third and fourth pleas-in-law and repel the defenders' pleas.

As a matter of law, he reminded the Court that in determining this appeal, there were only two options open to it, namely to confirm or annul the decision taken.

Reference was made to Regulation 4(b) and counsel submitted that the Regulations were primarily concerned with the management of schools rather than matters of discipline. It was argued that Regulation 4(b) was only available as a management tool and not as a punishment.

The onus, in terms of the 1975 Regulations, rested with the defenders. It was for them to demonstrate that the exclusion had been well-founded.

Counsel observed that the decision of Sheriff Stewart in Wallace had been approved by Lord Menzies in the Court of Session proceedings and that whilst Lord Menzies' decision was not binding it was highly persuasive. The Court must be satisfied that the decision taken to exclude the pupil was justified.

Under reference to Sheriff Stewart's opinion in Wallace at 63G - L, counsel argued that the Court must examine the circumstances objectively. It must consider the facts as found by the Court and not the facts as found by the decision-maker at the time. That, submitted counsel, was the approach taken by Sheriff Stewart.

Turning to the facts of the present case, counsel referred to the letter No. 5/2 of process intimating the decision to exclude Aidan.

Aidan's disability included an inability to react rationally when startled. The incident involving the taxi had "startled" Aidan. It had caused him to be very upset and he had reacted aggressively by kicking the taxi.

Counsel submitted that the escort, Mrs Harmer, intervened within a short interval, most probably seconds, and that she did so by putting her arm around Aidan to lead him away from the taxi. Counsel maintained that a finding to that effect was supported by the evidence of Mrs McGeever. Furthermore, that scenario was the subject of averment on record by the defenders. Counsel also referred to the statement from Mrs Harmer appended to No. 5/2 of process. He submitted that Mrs Enid Campbell did not see the full incident.

Counsel went on to recognise, that on any view of the evidence, Aidan had, indeed, grabbed Mrs Harmer's face and caused her to be injured. In that regard, counsel submitted that the natural inference to be drawn was that the grabbing of the face was a reaction to Mrs Harmer's attempt to lead Aidan away from the scene.

It was conceded on behalf of the pursuer that there had been evidence to the effect that on some occasions, Aidan had been able to resist violent behaviour. However, counsel sought to disassociate such occasions from those when Aidan had been startled in some way.

Counsel founded heavily upon the testimony of the three expert witnesses led on behalf of the pursuer which he contended had been to the effect that, in the circumstances, of 31 January 2002, Aidan would have been unable to resist behaving in the manner described. He had no control.

Much had been made of the evidence of Miss Biggins which tended to suggest that Aidan was able to recall what had happened and that he knew that something wrong had taken place. That, submitted counsel, could never amount to an admission of fault on his part. At best, it was merely a retrospective acknowledgement that "something bad had happened".

All the factual witnesses were agreed, that within a short period of time after the incident, Aidan was calm and that he remained calm. He was calm when the decision to exclude him was taken. Counsel invited the Court to find that there was no reasonable likelihood of any repetition of the behaviour concerned either that day or in the next 14 days. Specifically, counsel was referring to any recurrence flowing from the particular set of circumstances which existed on 31 January 2002.

The defenders had failed to show that a ground for exclusion existed. Mrs McGeever's evidence was inadequate to meet the statutory test.

By way of a subsidiary argument, counsel for the pursuer also made it clear that he challenged the defenders' decision in its entirety. In other words, whatever the court's view on the exclusion per se, were the defenders unable to justify the 14 day period arrived at, the court would still require to annul the decision.

Counsel submitted that the defenders had made no attempt to justify the length of the exclusion period by leading appropriate evidence; that factor alone vitiated the decision. The period selected was substantially in excess of the previous three day periods. There had been an overreaction on the part of the head teacher.

In terms of the evidence presented to the court, I have considered all the circumstances existing at the time when the decision was taken to exclude Aidan from Ashcraig School on 31 January 2002.

It is beyond dispute that the decision was prompted by the attack on Mrs. Harmer. The evidence of Miss Campbell, Miss Biggins and Mrs. McGeever in my view serves to provide a reasonably reliable insight into the attack, its context and the potential ramifications for the school. Whilst I was impressed by all three of these witnesses, the latter two, in particular, came across as caring, intelligent professionals who were well-placed to assess the quality of Aidan's behaviour on the occasion in question.

To a large extent, the pursuer's case was predicated upon the hypothesis that Mrs Harmer herself had behaved in a particular manner towards Aidan. Counsel for the pursuer accepted that the incident with the taxi handle had caused Aidan to become very upset and that he had reacted aggressively by kicking the taxi. Counsel further maintained that Mrs Harmer had intervened within a short interval and that she did so by putting her arm around Aidan to lead him away from the taxi.

It seems to me that the flaw in this approach is that it is not based upon the actual evidence in the case. Miss Campbell, who was the only "eye-witness" in the case, stated that Mrs Harmer didn't put her arm around Aidan. Furthermore, under cross-examination, Miss Biggins explained that Aidan made no reference to being grabbed or touched during the incident. Mrs. McGeever's testimony in court made no reference to any "laying on of hands" by Mrs Harmer and whilst the defenders' letter dated 31 January 2002 had appended to it a short statement bearing to have been signed by Mrs. Harmer, she wasn't called as a witness with the result that the statement is, to my mind, of little evidential value.

Furthermore, according to Mrs. McGeever, Mrs. Harmer had told her that she had approached Aidan to calm him down. Mrs. Harmer was aware of Aidan's disability and Mrs. McGeever took the view that she had taken the correct action in the circumstances. The possibility of a reaction to a mismanaged situation had been considered by Miss Biggins but she had concluded that Aidan could have controlled himself but didn't.

The underlying proposition upon which counsel for the pursuer relied was that the attack upon Mrs. Harmer had taken place because Aidan had been startled. The grabbing of Mrs. Harmer's face had been a spontaneous reaction to a physical intervention by her. It was a reaction which was intrinsic to Aidan's disability.

On the basis of the evidence which I found to be established, I have concluded that whilst the initial loss of equilibrium caused by the detachment of the taxi handle may well have provoked a response from Aidan to the extent that he kicked out at the taxi, his subsequent behaviour towards Mrs. Harmer went beyond the bounds of a reactionary "lashing out". In my view, the attack upon Mrs. Harmer was an example of one of those occasions when Aidan recognises unacceptable behaviour, is capable of restraining himself and yet fails to do so.

In reaching the decision to exclude Aidan, Mrs McGeever arrived at the same conclusion. She had the benefit of advice from Miss Biggins, the thrust of which I consider to have been sound and accurate. Considerable weight must be attached to Miss Biggins' evidence since she was the only person to have had a meaningful discussion with Aidan after the event and she was, after all, the member of staff who was regularly called in to deal with situations in which Aidan had become violent. Miss Biggins had formed the impression that Aidan had acted deliberately. This feature had been conveyed to Mrs. McGeever. Mrs. McGeever was well entitled to place reliance upon Miss Biggins' assessment.

Mrs. McGeever herself met with Mrs. Harmer a matter of minutes after the incident. Having received her account of events and having spoken to Miss Campbell (and Miss Biggins), she took the decision to exclude Aidan from school for a period of 14 days.

In evidence, Mrs. McGeever stated that, in her view, Aidan had been involved in a particularly violent incident resulting in a member of the school staff being sent to hospital; that she could not be satisfied that there would be no repetition of his behaviour; that many of the Ashcraig pupils were very vulnerable, particularly in physical terms; and that both staff and pupils had approached her to express their concerns regarding the potential for a recurrence of violence.

Miss Biggins' evidence supported her superior's concern regarding any repeat of the sort of behaviour in question. She stated, under cross-examination, that there had been previous incidents after which Aidan had become violent again. In relation to the vulnerability of other pupils, Miss Biggins highlighted the plight of those, such as quadriplegic children, who simply could not move out of the way in the face of violence of any sort.

The school had endeavoured to put in place strategies designed to cope with Aidan's behaviour. Miss Biggins explained that matters had previously reached a stage whereby behaviour which was deemed to be wholly unacceptable had to be highlighted by an associated exclusion from school.

I found the evidence of Miss Biggins and Mrs. McGeever to be highly persuasive. The determining factors which Mrs. McGeever spoke of, were, to my mind, extremely compelling. I have little difficulty in holding that the exclusion of Aidan was, indeed, properly used as a "management tool", in effect, to facilitate the passing of a cooling-off period. It was a significant step to take but it was commensurate with the magnitude of the behaviour in question and its impact upon the rest of the school community. To suggest that any lesser course of action might have been taken is, in my view, untenable and ignores the reality of the situation.

On behalf of the pursuer, evidence was led from three witnesses whom counsel for the pursuer subsequently moved to have certified as skilled witnesses, viz. Dr. Kenneth Aitken, Margaret Burnell and John Jamieson. Mrs Burnell was an Educational Consultant. Unfortunately, she had never met Aidan, let alone examined him. Furthermore, she had neither met nor discussed the case with any of the members of staff involved. Indeed, her only visit to Ashcraig had taken place many years prior to the incident involving Aidan. Accordingly, as far as the particular circumstances of the present case were concerned, it seemed to me that Mrs. Burnell was inadequately qualified to offer up a reliable and relevant opinion. In principle, however, she accepted that the decision to exclude was very much a "judgment call" for the head-teacher. That apart, I have left Mrs. Burnell's evidence out of account and I can see no proper basis for certifying her as a skilled witness for the purposes of this case.

Mr. Jamieson, a psychologist working mainly in the field of educational psychology, was in a similar position to Mrs. Burnell in that he had not had the opportunity to examine Aidan. He had simply been asked by the pursuer's legal advisors to consider certain productions in the case and to "answer a number of questions". Mr. Jamieson had not discussed the circumstances of the exclusion with any of the teaching staff.

On the basis of his consideration of the productions shown to him prior to his being called as a witness, Mr. Jamieson expressed the opinion that the incident involving Mrs. Harmer was the result of Aidan's disability and could not be attributed to any intentional behaviour on his part. For completeness, Mr. Jamieson also expressed the view that he wouldn't have expected exclusion from school to have any effect on Aidan's future conduct.

For the reasons set out at an earlier stage in this note, I preferred to rely upon the evidence of those dedicated professionals who were charged with dealing with and relating to Aidan on a day to day basis, viz. the staff at Ashcraig, particularly Miss Biggins and Mrs. McGeever. In my opinion, the weight to be attached to their evidence was significantly greater than that to be associated with that of Mr. Jamieson whose testimony was, I consider, undermined by a lack of insight into Aidan's previous behaviour, the strategies put in place by the school (and their effect) and the particular facts and circumstances which faced the head-teacher and her deputy at the material time. Therefore, I placed little reliance upon Mr. Jamieson's evidence and I do not accept his opinion to the effect that the attack upon Mrs. Harmer was intrinsic to Aidan's overall disability. Additionally, in a case such as this, I find it almost inconceivable that the court should effectively sanction the employment of a "skilled witness" whose investigations prior to the evidential hearing did not extend to a psychological examination of Aidan himself. In such circumstances, certification quoad Mr. Jamieson would, in my view, be unjustified and inappropriate.

Dr. Aitken fell into a slightly different category. He had examined Aidan on more than one occasion. His involvement had begun in 2001 when Aidan had been referred to him for assessment and treatment, if so advised.

Dr. Aitken came across as an impressive witness. He is clearly an authority in the field of neuropsychology. Naturally, his evidence fell to be looked at closely by the court. However, Dr. Aitken's conclusion, to the effect that the Harmer incident "...was an event which was really outwith Aidan's self-control", is not a conclusion which I share having regard to the particular facts which I have found to be established and the de recenti impressions formed by Miss Biggins.

In the course of his testimony, Dr. Aitken suggested that:

"Aidan's reaction would have been as a result of getting a sudden shock. He would have lashed out in the area of his right visual field defect, where he wouldn't have been aware of anything."

As indicated above, I accept that Aidan's reaction to the taxi handle giving way was the sort of "lashing out" envisaged by Dr. Aitken. However, the graphic description of the manner in which injury was inflicted upon Mrs. Harmer, (as relayed by Aidan to Miss Biggins), taken along with the other factual evidence, leads me to conclude that after the initial reaction, involving a "lashing out" at the taxi, a deliberate attack was perpetrated upon the escort.

In any event, Dr. Aitken's evidence to an extent confirmed Miss Biggins's approach. He conceded in cross-examination that there had been occasions when Aidan was able to stop himself from indulging in behaviour which would have an adverse effect upon others. His behaviour had improved due to the strategies put in place at Ashcraig.

Similarly, whilst the evidence of Mrs. Rose Wilson, Aidan's "one to one" teacher for a period of nine years, was also to the effect that Aidan's reaction was the direct result of his disability, that view was predicated upon the notion that Aidan had been touched by his escort and was thereby startled. Other aspects of Mrs. Wilson's evidence confirmed that other mechanisms might trigger a violent reaction on the part of Aidan, albeit that "being startled" was a very common "trigger". She also accepted that, even when startled, Aidan did, on occasions, have the capacity to exert control over his actions. As Mrs. Wilson put it, "There are some occasions when I've seen him begin to lose it and then he's pulled himself back from it."

Accordingly, Mrs. Wilson's testimony did not impact upon my conclusion that the nature and effect of the evidence given by Miss Biggins and Mrs. McGeever was accurate and reliable. In my view, to suggest in retrospect that Aidan's continued presence at Ashcraig, in the immediate aftermath of the attack on Mrs. Harmer, would not have affected order and discipline in the school or the educational well-being of pupils there is unrealistic. Apart from anything else, such a proposition ignores the understandable anxiety felt at the time by many of the pupils and staff to the effect that their safety would be seriously compromised by Aidan's uninterrupted presence at Ashcraig.

In the whole circumstances, therefore, I am satisfied that the decision to exclude Aidan was justified and reasonable. The defenders' decision falls to be confirmed.

Moreover, I consider that counsel for the pursuer's submission to the effect that the length of the exclusion period had to be justified for the decision to be confirmed is ill-founded.

No authority was cited in support of that proposition. In any event, the crave of the writ focuses upon the decision to exclude per se; no reference is made to the nature and extent of the exclusion. Furthermore, counsel for the pursuer did not insist upon the pursuer's fifth plea-in-law which was, it seemed to me, inextricably linked to the averments in article 8 of condescendence. These averments provided the only basis for an attack upon the period selected rather than the decision to exclude.

The 1975 Regulations themselves are, for present purposes, concerned only with the singular issue of "exclusion from school". They are silent when it comes to the duration of any exclusion period. Much the same can be said for section 28H of the Education (Scotland) Act 1980. All that, to my mind, makes sense. Whilst one can readily understand that, in relation to the decision to exclude, recourse to an appellate forum should be had by way of a reference to an appeal committee or, thereafter, by way of appeal to the sheriff, a head-teacher's discretion should not be made the subject of appellate interference when it comes to an assessment as to the period of time involved.

Sub-sections (6) and (7) of section 28H make it clear that the sheriff requires to consider the appeal committee's confirmation of an education authority's decision to exclude a pupil. The sheriff may only confirm or annul that decision. The statute provides no scope for the sheriff to reduce or alter the number of days specified in terms of a decision to exclude.

Even if there were merit in counsel for the pursuer's approach, having reached the conclusion that Aidan should be excluded, the particular circumstances giving rise to the exclusion (viz. a serious attack upon a member of staff), his propensity for violence as set out in the behaviour management overview between October 1999 and January 2002, and the need to protect and restore a measure of calm within the wider school community over a sustained period, were, in my opinion, features which merited the 14 day exclusion and which justified Mrs. McGeever's selection of that period. In that regard, however, aside from circumstances in which the selected period is shown to be demonstrably wrong, the court should, in my opinion, be slow to disturb a decision which is, after all, based upon the judgment, experience and intimate knowledge of a head-teacher. In any event, I would also consider that the period selected by way of exclusion should not be weighed in too fine a balance.

I have, therefore, sustained the second and third pleas-in-law for the defenders.

On the invitation of both counsel, I have reserved all outstanding questions anent the expenses of these proceedings. In particular, pending further submissions, I have reserved my decision on whether Dr. Aitken should be certified as a skilled witness given that he was involved in the regular management of Aidan. In that sense, he may have been speaking to matters already within his knowledge.

I have certified the cause as suitable for the employment of junior counsel.