September 2019
Trespass notices are sometimes used by schools to deal with difficult or disruptive parents or persistent complainants. However, trespass notices against parents should only be used as a last resort when it is really necessary and ordinary warning letters have failed. Although the school has an obligation to ensure the safety and well-being of students and employees, banning a difficult parent from the entire school for two years is not always necessary and may result in ongoing disputes. State schools need to follow a fair process, communicate their intention, and give the parent the opportunity to respond before issuing a written trespass notice. Bear in mind that trespass notices filed with the Police remain on the Police record even after the notice has expired.
It is not always understood that school grounds are private property. The board of trustees is the lawful ‘occupier’ responsible for managing the school grounds. Teachers and current students normally have a right to be on school grounds and parents have an ‘implied licence’ to come onto school grounds. An implied licence means it is assumed they have a right to be in certain parts of the school at certain times. Members of the public do not have an automatic right to come onto school grounds although some may have an implied licence depending on functions, roles and historical community relationships.
Under the Trespass Act 1980 the occupier of property may warn someone to leave on a single occasion (usually verbally), or warn someone to stay off the property in future (usually by written trespass notice). A person who ignores the warning can be charged with an offence under the Act.
While there may be good reasons for issuing a written trespass notice, state schools need to be aware that if the trespass notice is removing a right that the person may have had to be in the school a certain process needs to be followed.
A board of trustees or, if delegated, the principal, may make the decision, but since boards are public bodies, the decision may be reviewed by the Ombudsman or be subject to judicial review by a Court.
Before issuing a written trespass notice, the first question to ask is whether the person would normally have some kind of right or implied licence to come into the school. If so, that person has a right to a fair process before that right is removed. The Ombudsman has held that, in practice, this means the person should be told of the school’s intention to issue a written trespass notice and be given an opportunity to respond before the written trespass notice is issued.
It is particularly important to follow a fair process when trespassing a parent. The common law treats the trespassing of parents or guardians of enrolled pupils differently to the trespassing of other members of the public because of the parent or guardian’s right to be involved with their child’s education.
Consideration could be given to the appropriate length of time for the notice. Two years is the default period in the Act and on the standard form downloadable from the Police website but since a trespass notice can be withdrawn by the occupier at any time, the school could consider issuing a trespass notice for a shorter period. In some cases all that is required is sufficient time for people to calm down.
The school could also consider limiting the parts of the school that the parent can come onto rather than banning them from the whole school. For example, limiting the trespassed person to coming into the administration area but not to the classrooms or grounds.
Although other members of the public do not have an automatic right to be on school grounds there are often circumstances where the individual concerned may have a history of regular involvement with the school such that a trespass notice may be offensive and distressing to the person. A trespass notice may not be the most effective way of dealing with such a situation but if considered necessary it is still a good idea to follow a fair process and issue a warning before issuing a trespass notice.
A written trespass notice cannot be used to prevent disruptive members of the community from attending future school board meetings for a two year period. The Court of Appeal has found that in that situation, section 50 of the Local Government Information and Meetings Act 1987 applies and takes precedence over the Trespass Act. The person can only be removed on a meeting by meeting basis.
Sometimes students who are excluded or expelled come back onto the school grounds, even though they no longer have a right to do so. The reasons for this may vary. Some schools issue trespass notices to resolve this issue. It is recommended that this be avoided if possible and that verbal warnings and reminder letters be used instead. The student is already experiencing being alienated from his or her social group as a result of the expulsion or exclusion, and the effect of that isolation is greater than schools often realise. A trespass notice increases the sense of isolation. A further reason is that trespass notices filed with the Police remain on the Police record even after they expire and have the potential to cause problems for the student with Police vets later in life.
Schools have obligations under the Health and Safety at Work Act 2015 and the Education Act 1989 to ensure the safety and well-being of staff and students and this must take priority. However, this needs to be balanced against the extent to which the safety and well-being of staff and students is actually impacted by the person’s conduct, which will depend on such factors as whether the conduct was in sight and hearing of the students, the age of the students and whether there is a reasonable likelihood of harm. The general view of the Ombudsman is that trespass notices should be a last resort when dealing with ‘difficult’ or angry parents, unless there is a safety threat to staff or students or the person’s presence is disruptive of the school programme.
If the problem person is a parent or would normally have a right to come into the school, then to comply with the Bill of Rights Act 1990 a letter from the school warning that a trespass notice may be issued, and giving the individual an opportunity to respond, will normally be required.