Education & The Law

February 18

My step-daughter is refusing to go to school. I have received notification from the council that I am going to be prosecuted? Can they do this?

 Section 7 of the Education Act 1996 provides that all children of compulsory school age should receive a full time education suitable to their age, ability, aptitude and special educational needs. This does not mean they have to receive their education in a school building, although most do. A number of children are home-schooled and the mere fact that a child is home schooled does not give rise to grounds for prosecution. It is expected that parents would formalise a home-schooling arrangement by notifying the Local Authority however and your reference to ‘refusal’ suggests that your step-daughter is not attending school rather than this being a breakdown in communication between you and the Local Authority.

 I note you are a step-parent in this case. The definition of a parent under Section 576 of the Education Act 1996 is wide and a school or Local Authority have to give consideration to whether a person being prosecuted falls within the definition of ‘parent’ on a case by case basis. If you do not have parental responsibility for your step-daughter but you do live with her, look after her, care for her each day and make important decisions about her, whether or not in conjunction with another parent, such as her natural mother or father, you may well still fall within this definition. It is certainly not something you should discount.

 You have not said whether any steps have been taken to support your step-daughter or to support you prior to prosecution. There are a number of avenues open to both the school and the Local Authority before prosecution is considered and it should always be a last resort. From the School’s perspective, there is an obligation on the school to promote good attendance and address persistent absence. This is normally encapsulated within the school’s behaviour policy, which is a policy they are required to have by law. I would expect to see significant correspondence passing between the school and you before any steps towards prosecution by the Local Authority are taken. Has this happened I wonder?  

 The Local Authority also has a number of methods available to it to address persistent absence including service of a notice requiring you to prove that your step-daughter is receiving a full time education and issuing you with a School Attendance Order in the event that she is not. They can also apply to the court for an Educational Supervision Order or issue you with a penalty notice for failing to ensure your step-daughter’s attendance. All of these avenues should be explored prior to prosecution.

 If you are being prosecuted, it will be for one of the following offences:-          Failure to comply with a School Attendance Order

-          Failure to ensure a child’s regular attendance at School or alternative provision

-          Knowingly allowing a child to be absent from school without authorisation

-          Persistently failing to comply with directions issued under an Education Supervision Order

 

Depending on the offence for which you are being prosecuted, there are a number of statutory defences available to parents and these are set out in the Education Act 1996. However, if a statutory defence is not available to you because you do not fit the relevant criteria of that defence, the prosecution is likely to succeed. As such, it is important that you take legal advice as soon as possible after receiving this notice.

 

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