I dislike very much that Parliament sets up procedures for dealing with unruly children but in specific circumstances teachers, through their unions, can circumvent the law

Mr Justice Blofeld

The 14 year old was permanently excluded from the 1,200-pupil school in Essex last December after allegedly hitting another pupil and two women teachers.

The local education authority's independent appeal panel then ruled that the boy, who cannot be named for legal reasons, should be reinstated.

But the court heard that 43 of the 69 teachers at the school had indicated they would go on strike if forced to teach the boy, who currently attends a referral unit for difficult pupils.

Appeal panel rulings are legally binding on schools - much to the annoyance of head teachers, whose unions have argued that this means they are being forced to take back violently disruptive youngsters.

The boy's mother sought a High Court judicial review, arguing that the school's governors were acting unlawfully by not allowing her son back into school.

'Blow to morale'

But the judge, Mr Justice Blofeld, said the "real possibility and indeed probability of strike action" could have affected the whole school.

"If that took place that would mean not only that the boy would not be taught but neither would any of the pupils.

"It would deal a savage blow to the morale of everyone at the school."

But he said teacher unions appeared to be acting unlawfully by threatening to strike.

"I express anxiety that where there is an appeal panel the union should accept that decision, however reluctantly.

"This country has always prided itself on acting according to the law and long may that continue.

"I dislike very much that Parliament sets up procedures for dealing with unruly children but in specific circumstances teachers, through their unions, can circumvent the law."

'Common sense'

The judge said that in the circumstances the boy would be better off elsewhere.

"If I made an order for reinstatement in the present school, not only would he face teachers who have expressed strong views against him, but they would all be constantly aware of his behaviour and he would be at far greater risk at being excluded if he should misbehave," he said.

This is a good, common sense result

Union leader Nigel de Gruchy

"His future there is less certain than it would be at another school."

He said his decision "was a matter of discretion, not a matter of law."

The leader of the National Association of Schoolmasters Union of Women Teachers, Nigel de Gruchy, said his members had a right to strike if they believed their safety was at risk.

"This is a good, common sense result. I do not think the teachers were acting unlawfully," he said.

"No-one can challenge the fact that teachers have the right to ballot on health and safety and conditions of work."

New guidance

But the decision has alarmed the Children's Legal Centre, which had backed the boy's application.

Spokeswoman Helen Rimington said the decision drove "a coach and horses" through the law on expulsions.

"It means any decision does not have to be complied with if there is any form of behavioural difficulties," she said.

Teachers' unions have complained that targets the government has set local authorities for reducing the number of excluded pupils means they are having to continue teaching those who previously would have been expelled.

In response, the Education Secretary, David Blunkett, said at the beginning of June that he would consider changing the regulations to make it clear to appeal panels that it was inappropriate for youngsters who had used "violence or the severe threat of violence" to be "thrust back into the same school".

The schools minister Jacqui Smith is expected to make an announcement on the subject on Tuesday.

The Conservative Party schools spokesman, James Clappison, said the ruling showed schools needed to be able to make their own decisions on exclusions.

"The Conservative policy for free schools will set head teachers free to set their own discipline policies, and 'progress centres' will be created to teach excluded pupils away from the school," he said.