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 (eight 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
The criminal investigation and prosecution process
Once a referral has been received by the council, and a decision is made to start a criminal investigation, a court warning letter will be sent to the parent(s)/Carer(s). This letter informs them that the council are conducting an investigation into their child's attendance.
It allows the parent to make a response in writing/email to either provide evidence to support their child's absences during the period in question, or to provide mitigation that doesn't necessarily form a defence to the Education Act 1996, but may have had an impact on their child's attendance. 14 days (2 weeks) is allowed to make this response.
After the 14 days a decision will be made by the council whether or not to instigate legal proceedings. Consideration will also be given to whether or not it is in public interest to proceed, and if it is proportional, the council 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.
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.
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) which outweighs the need to prosecute
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.
Schools and EWO providers can apply for further guidance on these policies, along with the appropriate forms and letters at: EWS.email@example.com
- Penalty notice code of conduct [138.0KB]
- Croydon's staged intervention approach to poor attendance [168.0KB]