Scottish High Court of Justiciary Decisons

ANDRINA MONTGOMERY v. IAN G. CUMMING [1998] ScotHC 22 (17th December, 1998)

The appellant in this appeal by Stated Case is Andrina Montgomery who was charged with a contravention of Section 35 of the Education (Scotland) Act 1980 in that she was the mother of a child of school age who attended All Saints Secondary School Glasgow and who failed, between 13 May and 17 September 1996 without reasonable excuse to attend regularly at that school.

It was accepted in the court below that in the relevant period the child, who was then 14 years of age, had attended school on only 14 out of a possible 112 occasions. The Justice also found that the girl regularly displayed a marked reluctance to attend school and regularly sustained bruising to her arms. The Justice inferred that she had suffered intimidation and assaults during the relevant period but there was no evidence to suggest that she had initially sought help from, or reported anything to, either the appellant or the authorities. It is clear, however, that the appellant became aware of the situation since she gave evidence, which the Justice found to be credible and reliable, that she had spoken to the Assistant Head Teacher of the school on three or four separate occasions to complain about her daughter being bullied and had tried placing her in another school without success. The appellant conceded that she did not pressurise her daughter into revealing the identity of the bullies and that she did not involve the police, since her daughter thought that it would make matters worse if the identity of her assailants were reported to the authorities.

We have enormous sympathy both for the appellant and for her daughter. Bullying in schools has always been a pernicious phenomenon, often involving, as in this case, criminal assaults by the bullies on their victims. The only effective way of dealing with it is, however, for the identity of the bullies to be given to the school authorities and, if necessary, to the police. In this case, for reasons which we can understand, the appellant's daughter would not reveal their identity. This made it impossible for the Assistant Head Teacher to take effective action to root out the problem in the school which the girl attended.

In terms of Section 35(1) of the Education (Scotland) Act 1980 a parent is guilty of an offence if his child fails without reasonable excuse to attend regularly. Section 42(1)(c) provides that for this purpose there shall be deemed to be a reasonable excuse if there are circumstances other than the ones specified "which in the opinion of the education authority or the court afford a reasonable excuse". The Justice formed the view that the circumstances in this case did not afford a reasonable excuse for the appellant's daughter failing to attend regularly. The only question for this court is whether, on the material before him, he was entitled to form that opinion.

We are satisfied that the Justice was indeed entitled to be of the opinion that the circumstances did not afford a reasonable excuse for the appellant's daughter failing to attend school regularly. As he points out, she did not report the bullying to the school authorities and did not identify the bullies to her mother or to the school authorities. In this way she in effect made it impossible for effective steps to be taken to eliminate the bullying and so she herself really contributed to it continuing and so preventing her from going to school. It is irrelevant that the authorities refused to allow her to transfer to another school, since she was under a duty to attend All Saints and the question is whether she had a reasonable excuse for failing to attend that school. The Justice was, in our view, entitled to take the view that a girl of 14 should have identified those who were bullying her and that, since she did not do so, the continuing bullying did not furnish a reasonable excuse for her failing to attend school regularly.

For these reasons we can detect no error in the approach of the Justice and we answer Question 1 in the negative and Question 2 in the affirmative and refuse the appeal.