What does the law say about school attendance?
All parents have a legal duty to ensure that their child receives an education suitable to his/her age, ability and aptitude and any special needs. Most parents fulfil their legal obligation by registering their child in a school.
Children must legally be in education between the school term after their 5th birthday and the last Friday in June in the school year they turn 16. The Education and Skills Act 2008 increased the minimum age at which young people in England can leave learning. Raising the participation age means that your child will have to stay in some form of education or training until the end of the academic year when they turn 18.
School attendance order
Should you fail to register your child at a school and not make suitable alternative education arrangements, the council may issue a School Attendance Order requiring you to register your child at a named school.
Non-attendance at school
Failure to ensure a child's regular attendance at school is a criminal offence and if, with support from the school/academy your child's attendance fails to improve, the council will consider one of two courses of action:
- Penalty fine of £60 (if paid within 21 days), rising to £120 (if paid after 21 days but before 28 days have elapsed). Failing to pay the fine will result in prosecution and being summoned to appear at the Magistrates Court.
- Start a criminal investigation which could lead to you being prosecuted in the Magistrates' Court.
A Penalty Notice can be issued if :
- a child has poor attendance (five sessions (half days) or more of unauthorised absence in the last six weeks)
- 10 sessions/5 days or more of absence due to an unauthorised leave of absence during term time
- A child who has been excluded from school is seen in a public place in the first five days of an exclusion.
It is the responsibility of each parent to ensure regular school attendance and failure to do so will result in each parent being charged with the offence. If convicted, both parents will be punished by the courts, resulting in a fine of up to £2,500 for each parent and / or up to three months custodial sentence.
If a child lives with a family friend or relative for a period of time who has day to day care of the child, each responsible adult is considered as a 'Parent' under the Education Act and can equally be charged with the same offence and prosecuted.
Please read the Penalty notice code of conduct
you can also view the following documents
- Enforcement Letter 1
- Enforcement Letter 2
- Parenting Contract
- Home Visit Letter
- Enforcement Letter 3
- Stage 2 Tracking Form
- Stage 3 Intervention Request Form
The criminal investigation and prosecution process
Once the decision has been made by the council to start a criminal investigation, an investigating officer will be allocated to look at the child's attendance and the reasons for absence, and decide whether or not an offence has been committed. The offences are:
Section 444 Education Act 1996 (Enforcement of School Attendance)
Offence: failure to secure regular attendance at school of registered pupil.
(1) If a child of compulsory school age who is a registered pupil at a school fails to attend regularly at the school, his parent is guilty of an offence.
(1A) If in the circumstances mentioned in subsection (1) the parent knows that his child is failing to attend regularly at the school and fails without reasonable justification to cause him to do so, he is guilty of an offence.
To ensure we have as much information as possible from you, schools, and other agencies (if necessary), we use a three step process when we investigate:
Step One - A visit to the child's school
This enables the investigating officer to interrogate the information held by the school, including what "welfare" work has been undertaken prior to the referral, the nature of the absences and what information is held about the child and parent/carer(s).
The investigation at this stage focuses on establishing whether an offence has been committed, and if so by whom, whether any defences exist, and whether at this stage it is justified, authorised and proportional for the investigation to continue. By reaching a decision around whether or not it is proportional, the investigator must take into account Article 8 of the Human Rights Act (Right for respect of family and private life), and whether the information gather justifies an interference with this.
This will be the first time the school has had the opportunity to access the guidance of an independent investigator, so there may be a need to provide further information, advice and guidance/challenge rather than continue with a criminal investigation.
The school visit will be conducted according to Police and Criminal Evidence Act (PACE) guidance, as the investigation of the offence starts at this stage.
Step Two - Home visit to meet with you and any other parent/carer
This enables the investigating officer to ask questions of you in an attempt to collaborate the information provided by the school, therefore continuing to try and establish whether an offence has been committed, who is responsible for the child's attendance and whether any defences exist.
A home visit at this stage is vital to the investigation, as it enables the investigating officer to acquire information and evidence from you in a way that is not oppressive, helps understand the individual needs of you and your family and provides the investigating officer with the ability to informally assess the vulnerability of you and your family.
This will be the first time you have had the opportunity to meet with an independent investigating officer, so new information may be uncovered which may mean that it is not appropriate for a criminal investigation to continue, and that you and/or your family may require further welfare support from the school and/or other agencies (i.e. Children's Social Care).
PACE guidance will also be implemented during the home visit, as the investigation of the offence is on-going at this stage.
If other agencies are involved, those agencies should be contacted to investigate their involvement, and to gather any further evidence which may or may not support a prosecution.
Step Three - Interview under caution - considering legal proceedings
Once evidence has been gathered from the school, parent/carer and other agencies (if necessary), the evidence is evaluated and valued to decide whether or not it is appropriate to consider legal proceedings.
If the decision is made to instigate legal proceedings, the parent/carer(s) is invited to attend an interview under caution to provide a final opportunity to disclose any further information/evidence with the knowledge that legal proceedings will be implemented without haste should no defence exist and it remains in the public interest to proceed.
The interview will be PACE compliant with an audio recording made according to the relevant PACE code of conduct. The interview will be led by the investigating officer who will be responsible for asking you questions, with support provided by another investigating officer who will be responsible for ensuring the interview is undertaken in accordance with the law.
Once the interview is over, the investigating officer will pass the information in relation to your case to the lead officer for education safeguarding and school attendance, who will decide whether or not legal action should be taken against you. You will be informed whether or not legal action will continue.
You will normally be prosecuted unless:
- There is a statutory defence (Education Act 1996)
- It is not in the public interest (Code for Crown Prosecutors)
- There is a failure in the evidential test (Code for Crown Prosecutors)
- A vulnerable child or adult is identified (Child Protection/Safeguarding)
- There is an unmet need (Welfare Support)
Next steps - legal action
If the council decide to take legal action against you, you will be served with a summons to appear before a magistrates court. You will receive a copy of the statement of the investigating officer and members of school staff, and any supporting evidence ('exhibits').
Should you fail to attend, the court may consider issuing a warrant for your arrest or decide to hear the case in your absence.
The case will be heard by the magistrates. A court usher will be available to help you.
The court clerk will read the charge. You will be asked to plead 'guilty' or 'not guilty'. Should you plead not guilty, the case will be adjourned to a future date for a trial to take place. Should you plead guilty; the case will be heard immediately.
The court will first hear the evidence from the prosecution.
You or your legal representative will then be able to either make the case for the defence (if you have pleaded not guilty), or (if you have pleaded guilty) explain any reasons why your child has not attended school regularly.
The magistrates will then decide how they intend to deal with the case.
Should you have pleaded guilty or be found guilty, the sentencing/disposal options available to the magistrates are:
- a fine of up to £2,500
- a conditional discharge - you will be given a set amount of time in which to improve your child's attendance. Should you fail the council may bring a further prosecution against you and, if found guilty, you will be sentenced for both offences
- an absolute discharge - the case is proved but you will not be subject to a penalty, although you will receive a conviction
- deferred sentence - a new court date will be arranged, during which time you will be expected to have taken steps to improve your child's school attendance
- Sentence will be passed at this new hearing
- imprisonment - only for the more serious (aggravated) offence but it can be for up to three months
- parenting order - the magistrates may order you to attend parenting classes
Education supervision order
The court may also direct that the council considers making an application for an education supervision order. The education welfare officer may also decide on this option as an alternative to prosecution. Applications for education supervision orders are heard in the family court, and if granted you and your child will be directed by the court to co-operate with the council to ensure that your child attends school regularly.
What happens next?
Regardless of the outcome in court, you will continue to receive support from the school to ensure that your child attends school. Should your child return to school and attend regularly, no further legal action will be taken against you.
Education welfare service
4th Floor, Bernard Weatherill House
8 Mint Walk
- PN Code of Conduct - September 2014 [265.4KB]
- School-attendance-staged-intervention-paper-1of4 [539.1KB]
- Stage 3 Intervention Request [138.5KB]
- Stage 2 Tracking Form [83.0KB]
- Enforcement Letter 3 [32.5KB]
- Enforcement Letter 2 v2 [33.0KB]
- Enforcement Letter 1 v2 [32.5KB]
- Enforcement HV Letter [33.0KB]
- Parenting Contract (Croydon) [83.5KB]