The mother of a teenage girl who was excluded from a leading Moray school for having sex with another pupil has had her appeal against the exclusion rejected.
Lawyers acting for the mother went to Edinburgh’s Court of Session to claim that teachers at Gordonstoun school breached the Equality Act when dealing with the girl.
The teenager, who is now aged 19, has Attention Deficit Hyperactivity Disorder. She was withdrawn from the school in March 2013 after she was caught having sex with a male on a teacher’s desk in the school.
The girl, who has only been identified as M, and the boy were both ordered to leave the school after falling foul of its strict policy on sexual intercourse.
The parent initially appealed to the Additional Support Needs Tribunal for Scotland. The woman argued that her daughter had a disability and that she had been discriminated against.
She required the school to apologise to the girl and a statement from teachers which admitted discrimination. The tribunal rejected the appeal saying they weren’t satisfied that M’s disability caused her to have sex with the boy.
This prompted the woman to go to Scotland’s highest court. On Friday, judges Lady Smith, Lord Brodie and Lord Malcolm upheld the tribunal’s decision.
The judges ruled that there wasn’t any evidence which shown that it was the girl’s ADHD which caused her to have sex.
In the judgement, Lady Smith wrote: “The problem for the appellant would have been that, on the evidence, it was not shown that M having sex on March 4 2013 was in consequence of her ADHD. “The experts did not, unsurprisingly, say that when a young person with ADHD has sex, that will always be in consequence of their ADHD.
“Whether or not that was so in M’s case was not directly addressed by them.
“There was no clear evidence that it was a consequence of her ADHD.”
Gordonstoun school is a co-educational independent school for boarding and day pupils in near Duffus in Moray and is one of the UK’s most exclusive schools.
It is named after the 150-acre estate originally owned by Sir Robert Gordon in the 17th century. It was founded in 1934 by German educator Kurt Hahn and the Duke of Edinburgh and the Prince of Wales also attended there.
The judgement tells of how the girl and the boy got together. Lady Smith wrote: “During the evening of Monday March 4 2013, M had sexual intercourse with a male student on a teacher’s desk within the school.
“They had been in a relationship for some time. Their meeting was pre planned. It had been organised through an exchange of emails; various emails dating back over more than a year disclosed sexually explicit exchanges having taken place and there were references to prior sexual contact having occurred.
“At about 6.45pm, when in a state of undress, they were discovered by a member of staff. “The member of staff reported the matter and both M and the male student were identified immediately.
“The respondent’s principal was informed of the incident on the morning of March 5 2013. Discussion took place within the school throughout the day regarding the appropriate response.
“On March 6 2013, the principal decided that both M and the male student would require to leave the school with immediate effect.
“He did not meet with M or with the appellant before reaching his decision. He wrote to the appellant to advise her of his decision that day. In his letter, he invited her to withdraw M so as to avoid there being an expulsion on her record and to limit any difficulty in re-establishing her academic future.
“The appellant agreed to withdraw M from the school.”
The tribunal rejected the mum’s appeal. The tribunal concluded that the emails between M and her sexual partner showed that the intercourse wasn’t an impulsive action and was planned.
The tribunal ruled that impulsivity is a symptom of ADHD. The tribunal also considered evidence which showed that the girl had three previous ‘positive’ relationships with ‘suitable’ boys. In their judgement, the tribunal wrote: “In our view they demonstrate M’s ability to engage in relationships that were not out of the ordinary; it cannot be said that her ADHD caused her to have poor judgement in dealing with boys as a general rule.”
Lawyers acting for the mum then went to the Court of Session to argue that the tribunal had made to the wrong decision. They argued before the judges that the tribunal had misinterpreted the law.
However, the Court of Session judges ruled that the tribunal had acted correctly. Lady Smith wrote: “It is not the law that every person with a mental impairment is disabled for the purposes of the 2010 act. That is only the case if it is established that the impairment in question is at a level which amounts to a substantial and long term adverse effect on normal day to day activities.
“We agree with counsel for the respondent that the appellant’s criticism amounts to saying that poor judgement is an aspect of ADHD, having sex on March 4 2013 was poor judgement and therefore, causation is established but, plainly that would not have been enough to establish the requisite causal link.
“In the modern world, all too often teenagers exercise poor judgement in sexual matters. It is widespread. It is sadly, a fact of life.
“The vast majority do not have ADHD. Further, M was an adult with full capacity. Adults do follow their very natural human desires to engage in sexual activity.
“There would need to have been clear and cogent evidence to support the claim that in M’s case, this was not ordinary teenage behaviour but was a consequence of her ADHD.
“The tribunal’s conclusion was one which we consider, given the state of evidence, they were entitled to reach.”
A spokeswoman for Gordonstoun said: “It would not be appropriate for us to comment on the specifics of this case.
“We have a very clear policy relating to sexual relationships. All parents are sent a copy of our “Code of Conduct” which states clearly that we do not believe schooldays are a time for a sexual relationship and that if a student is found having sexual intercourse they are likely to be asked to leave the school. Students must note the Code of Conduct before arriving at the school and they are reminded of it during their time here.
“Concern for the pastoral care of every student is at the heart of everything we do. We are committed to providing a safe and nurturing environment for all our students so they can take full advantage of every opportunity available to them at Gordonstoun.
“We take time and care to talk to our students regularly about healthy and appropriate relationships.
“Our community is built on positive values where students show courtesy, consideration and respect to each other and to staff, parents and the community beyond the school.”