Charge the parent and fail the child?
What are the options open to local education authorities when a parent fails to ensure the regular attendance of their child at school? Alan Conroy looks at the key provisions and the importance of considering education supervision orders.
The numbers of parents prosecuted for failing to ensure regular attendance at school continue to rise. There can be no doubt that criminal action is warranted in many of these cases and wilful carelessness, or worse, must attract a robust response.
Prosecutions brought under s444 Education Act 1996 (“the 1996 Act”) fall into two categories - s444(1) deals with failure to ensure attendance and s444(1A) knowingly failing to ensure attendance. Considering the routine levels of engagement, or attempts at engagement, with parents before a prosecution is brought it is very difficult to see how the majority of these cases can ever be considered to be in the absence of knowledge. The distinction is an important one because the s444(1A) offence carries a higher maximum fine (Level 4 rather than Level 3) and the additional potential for a maximum of three months' imprisonment.
It appears to be policy in many Local Education Authorities to use s444(1) for the first offence and then s444(1A) in subsequent cases. That is in itself flawed because clearly the charging decision should be fact and evidence based and not driven by policy. Perhaps the more worrying issue though is that policies in these matters often seem to make the parent the focus of the action rather than the child.
The 1996 Act is explicit about where the focus should lie and in s447 states (with abbreviations added): "Before instituting proceedings for an offence under section 443 or 444, a local education authority ('an LEA') shall consider whether it would be appropriate (instead of or as well as instituting the proceedings) to apply for an education supervision order (“an ESO”) with respect to the child".
A consideration of an ESO must surely be a consideration carried out to a sufficient degree to be clear about whether an ESO will address the needs of the child? The use of the words ‘instead of’ are a clue that Parliament did not see a prosecution as the automatic response. It is s36 of the Children Act 1989 (“the 1989 Act”) which deals with the ESO and Part III of Schedule 3 makes further provision for them.
If the consideration must be detailed, and logic suggests that it must be rather more than a passing thought, there ought to be a record of who discussed what and when together with an objectively based decision process as to why an ESO was, or was not considered as an alternative, or an addition, to prosecution. Given that it is a statutory requirement to consider this before a prosecution is bought such a record ought to be made available to the Court, and it is suggested, to the Defence as part of disclosure. The Defence would be entitled to ask to see such records and a Court would be entirely justified in finding no case to answer were the evidence not available.
Anything that adds to the workload of an LEA is going to be unwelcome but it is an inescapable requirement that these issues are addressed. A prosecution brought before they have been adequately considered should properly fail. LEAs might wish to consider reviewing this in the context of a child centred policy that shifts focus away from the parent in appropriate cases. Failing to take account of what the law requires here could be expensive and not least if earlier prosecutions were challenged and shown to be flawed.
Alan Conroy is a Barrister with a mixed employed and self-employed practice and has had considerable recent experience in local authority prosecutions including failures by parents to ensure regular attendance at school by their children. He can be contacted This email address is being protected from spambots. You need JavaScript enabled to view it..
