A LANDMARK legal challenge by a disabled 16-year-old could restrict the ability of headteachers to exclude disruptive children from Scottish schools.

Aidan Fox-Flynn’s appeal against his expulsion from a special needs school in Glasgow’s East End last year is to be heard in the Court of Session, the first time a school expulsion has reached Scotland’s supreme civil court.

The case, which could force head teachersto give more detailed reasons for expulsions, leaving them open to challenge, will be a headache for the Scottish executive. Ministers recently decided on a policy U-turn designed to give heads more discretion when banning students from school.

Fox-Flynn spent most of his first year of life in Yorkhill hospital in Glasgow suffering from severe epilepsy. Between the ages of three and six, he was operated on four times in an attempt to control the seizures, which had left him brain damaged and partially blind. His first operation was a hemispherectomy, which removed about 50% of his brain. The operations did help to lessen his seizures but left him paralysed down one side of his body.

In January 2002, the 16-year-old was getting out of the taxi that ferried him between his home in Kelvinbridge and the East End of Glasgow when the handle he was holding onto came away and he fell. His taxi escort rushed to help him but he lashed out at her, leaving her with a bleeding mouth. As a result he was temporarily excluded from Ashcraig school.

Glasgow city council, which expelled 6,332 pupils last year out of a total of 37,442 across all schools in Scotland, has applied for a judicial review of the case in the Court of Session as officials believe that a previous decision by Sheriff Susan Raeburn QC in favour of the teenager will affect the exclusion policy of every council in Scotland.

This month, Raeburn found Glasgow city council had not given enough detailed reasons for expelling Fox-Flynn.

A council spokesman said: “Glasgow city council education services is seeking a definitive view as to procedures. The outcome will have significance for all local authorities in terms of how exclusions are administered in the future.”

Diana Fox-Flynn, Aidan’s mother and a former archeologist, believes that his expulsion was unfair and has spent the past 18 months fighting the case through Glasgow city council’s appeal system and the city’s sheriff court. “I do not feel that any disabled child or adult should be punished for their disability,” she said.

“His reaction is a direct result of his disability, when he falls or is startled he lashes out. It’s not Aidan’s fault. I felt a moral obligation to challenge this but it was the council’s decision to take it to the Court of Session.”

Iain Nisbet of the Govan Law Centre, handling the case for the family, said: “ If the Court of Session does rule, sheriffs throughout Scotland would have to follow it as it would have come from a higher court. It would be the first time we would have that level of judgment on an exclusion case.”

Last June, Peter Peacock, the Scottish education minister, effectively relaxed the Scottish government’s controversial policy of reducing the number of children excluded from schools. His move followed widespread criticism of the policy, especially from head teachers and their staff, who wanted heads to be given greater discretion in deciding whether pupils should stay in school or not.

Mike Doig, president of the Headteachers’ Association of Scotland, said: “We welcomed the promise of increased discretion for head teachers in terms of exclusions, but when you get a test case of this kind, it could send everything back to square one.

“This case just illustrates how fraught the whole situation can get in legal terms, as opposed to educational terms. I think the interests of the individual and the greater majority can really be quite different. One of the aspects of formal exclusion is that it gives an opportunity, even short term, for things to settle down.”

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