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Local Authority School Non-Attendance Prosecutions
Fixed Penalties and S.444 Education Act 1996
One, not untypical, morning I found myself shouting at my daughter to get in the car “right now or I will drive to school without you”.As the mum of an only child driving to school without my daughter would have been a daft endeavour. Luckily my daughter did appear and once again she made it to class just about on time and with most of the right things in her school bag.
Some parents are not so lucky. Their children do not attend school. Unfortunately, the response from Local Authorities is often to criminalise the parents. In 2017 16,400 parents were prosecuted and of these 120 received a prison sentence.
A brilliant piece of research published in January 2019* focused on the reasons why this happens and calling for a new approach of treating non attendance as a child welfare issue rather than a criminal one. 60% of the respondents stated that their child was being bullied and 100% that the family were suffering other stresses. The researchers stated their view that “the current law is cruel and discriminatory” and their main conclusion was that “the criminal law should not be applied to parents whose children do not attend school regularly". This research struck a chord with me as I have noticed an increase in these prosecutions in my local courts.
The first response to an unauthorised absence is often the School reporting this to the Local Authority who have the power to issue Fixed Penalty Notices. The penalty is £60 and this rises to £120 if paid after 21 days but within 28 days. Each Local Authority should publish a ‘Code of Conduct’ for Fixed Penalty Notices (FPN). Failure to pay may result in a decision to prosecute. If a parent receives an FPN or a summons it is important to consider whether or not the Local Authority has complied with its Code of Conduct and its prosecution policy. If they have not they may be persuaded to reconsider or consideration should be given to legal challenge.
When the Local Authority prosecute, they do so by issuing a summons for one of the two offences within Section 444 of the Education Act 1996. S.444(1) is an offence that is made out when there is a lack of regular attendance and can result in a fine of up to £1000. S.444(1A) is the aggravated offence and requires the parent to have knowledge of the absence and that they failed to act. This can result in a fine of up £2,500 and up to 3 months custody.
The definition of “regular attendance” was aired in the 2017 “Isle of Wight” case. A father, Mr Platt wished to take his daughter on holiday during term time and asked for permission from the Head Teacher. When this was refused, he took her on holiday anyway. As a point of principle, he refused to pay the Fixed Penalty Notice and his council prosecuted. The Magistrates Court acquitted him. The Council successfully appealed. The Court held that the correct interpretation of “regularly” was “in accordance with the rules” of the school. Many parents view this as a harsh interpretation.
There are, though, statutory defences available. To the more serious, aggravated offence, there is a “reasonable justification” defence. General defences include
These defences have been debated in the courts. For instance, In January 2019, The Court of Appeal, in Somerset Council v RS, looked at the availability of the defence in S.444(2A). It is a defence if “the parent proves that at that time the child was prevented from attending by reason of sickness or any unavoidable cause”. It was held that a parent can give evidence regarding sickness but if the reason is anxiety some further evidence would be required.
When dealing with these prosecutions as a defence advocate it is imperative that consideration is given to why the child missed school, the input of the Local Authority in supporting the family, and whether the prosecution should have been brought in the first place. It may be that the Local Authority can be persuaded to withdraw the prosecution. Parents must also be taken through the defences available and if applicable then consideration of the evidence required to present the defence must be given. If a conviction is unavoidable, given the penalties that are available, it is important that any mitigating circumstances are put before the court.
*Rona Epstein, Coventry Law School, Geraldine Brown, Coventry University, Sarah O’Flynn, Roehampton Institute, 14 January 2019 Oakdale Trust
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