Absence and the Law

The Law and School Attendance

The 1996 Education Act places a legal responsibility upon parents and/or carers to ensure that their child receives an appropriate, full time and effective education (suitable to their educational needs). This can be achieved either by enrolling the child at a school,  or by ensuring that the child receives an appropriate education other than at school, sometimes referred to as Elective Home Education (EHE). 

In England, the vast majority of parents fulfil their parental responsibility in relation to education by putting their child on a school roll, and ensuring that they attend regularly. However if a child who is on a school roll and fails to attend regularly then it is possible that the parents will have committed an offence contrary to s444 Education Act 1996, unless one of the four statutory defences apply .

If your child genuinely cannot attend due to a medical reason (perhaps anxiety or depression), then most Local Authorities would be looking for a medical professional to provide evidence that your child cannot be expected to fully attend. This may then lead to your Local Authority being able to explore alternative methods of supporting your child's education. The responsibility for evidencing that your child is unable to fully attend school for medical reasons lies with the parents/carers.

Legal Sanctions Available to a Local Authority

Unauthorised absences could lead to legal proceedings by your Local Authority. Legal sanctions available to a Local Authority include:

  • A Penalty Notice, currently £60 per parent/carer per child, if paid within 21 days rising to £120 if paid between 22 and 28 days. Failure to pay a Penalty Notice will normally lead to a Magistrates Court Summons.
  • A Magistrates Court Summons for an offence under S444 (1)Education Act 1996 – a level 3 offence - where the maximum fine could be £1000 per parent/carer, or for an offence under s444(1)(A) Education Act 1996 – a level 4 offence -  where the maximum penalty is currently a fine of up to £2500 per parent/carer and/or the possibility of up to 3 months imprisonment. These are Criminal offences as opposed to Civil.
  • Education Supervision Order. This is an Order issued within the Family Court. The child and parents (and sometimes school) are expected to comply with the directions of a Supervising Officer approved by the Local Authority and the Court.  A parent who fails to comply with directions without a justifiable excuses could be summoned to the Magistrates Court for a level 3 offence.  In extreme cases, the Supervising Officer may take the case back to the Family Court and the Court may require Social Care to investigate whether care proceedings should be instigated.

What does the Local Authority need in order to prosecute?

If the Local Authority chooses to proceed legally, then under the lesser offence S444 (1) of the Education Act 1996, the Local Authority only has to provide evidence:

  • that the child is of compulsory school age
  • that you are the parent/carer and that the child is on roll at a school
  • that the child has unauthorised absences

It is then the responsibility of the parent/carer to provide evidence of any of the four set defences.

 

It is important to prevent the situation getting this far. As a Criminal offence, the implications of a guilty verdict could extend further than a court fine, and a criminal record could impact on your employment or even the right of entry to some Countries.

Make sure...

You maintain good contact with the school (and/or Local Authority) and seek (or push for) medical advice and support.

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