Tackling truancy by targeting parents

What happens to parents who don’t send their children to school? John-Paul Swoboda looks at the options available to local authorities.

Section 444 of the Education Act 1996 created two offences for ‘failing to secure regular attendance at school of a registered pupil’.

• Section 444(1) creates the simple offence, so that if a child of compulsory school age, typically from 5 to 16, who is a registered pupil at a school fails to attend regularly at the school, his parents, meaning anyone with parental responsibility or who has care of the child, is guilty of an offence.
• Section 444(1A) creates the aggravated offence; if a parent knows the child is failing to attend regularly at school and fails to cause him to do so.

It also worth remembering that s. 444 covers, one, children who are educated at a place other than a school when such provision is organised by the local authority, and two, children excluded but still registered at a school, who are required by the school or local authority to attend somewhere other than a school for the provision of education, instruction or training.

Steps prior to court proceedings

It has been my experience when prosecuting s444 offences that local authorities and local educational authorities have set procedures which they carry out prior to issuing section 444 proceedings against parents. Typically a school will intervene if a child, let’s call him Charlie, is regularly failing to attend school by contacting and meeting with the parents. If this fails to improve Charlie’s attendance the school refers the matter to a local authority education officer who attempts to arrange meetings with Charlie’s family to identify why there have been absences.

If the above measures fail to bring about improvement, the different agencies will come together to decide on a plan of action. The agencies could include the school’s staff, usually the head teacher and the head of year, the local authority education officer who has been dealing with the case, a Special Educational Needs coordinator, a school governor, representatives of Social Care, members from the Youth Offending Team and members of other relevant agencies.

It is important for all options to be considered at this stage, not least as section 447 of the Education Act 1996 requires consideration to be given to an application for an Education Supervision Order under section 36 and part III of the Children Act 1989. Section 444A gives the local authority the power to issue a parent with a penalty notice if it believes an offence has been committed under section 444. Interestingly failure to comply with an Education Supervision Order by a parent is also a criminal offence under Part III of the Children Act 1989 as is failure to comply with a school attendance order under section 443 of the 1996 Education Act.

Let’s assume that all the agencies have got together and it has been decided by the local authority that Charlie’s parents or parent should be prosecuted under s. 444.

Choosing between section 444(1) or 444(1A)

The difference between s. 444(1) and s. 444(1A) is the parent(s) knowledge of Charlie’s absence from school. In other words a successful prosecution under s. 444(1) only requires that Charlie was absent from school regularly whereas a successful prosecution under s. 444(1A) would require that Charlie was absent from school regularly and that the parent knew that this was the case.

The extra step for a successful prosecution under s. 444(1A), proving that Charlie’s parents knew he was regularly absent from school, can be evidentially tricky. How does one prove that Charlie’s parents knew he was absent?

If Charlie was with his parents at times when he should have been at school, and this can be proved by evidence, perhaps by the local authority education officer’s evidence or by the parents’ evidence, then it should be possible to bring a successful prosecution under s. 444(1A).

However, if the evidence suggests that the parent(s) took the child to the school’s gate, it will be harder to prove they knew that Charlie was regularly not attending.

One other factor to take into consideration is that on a trial of an offence under s 444(1A) Education Act 1996 the court can find the parents guilty of s 444(1) if they consider the offence under s 444(1A) not to be made out.

Preparing the case

The most important document in a prosecution under s 444 is the headmaster’s certificate providing particulars of Charlie’s absence. This signed certificate will be treated, without further proof, as the document which it purports to be and as having been signed by the headmaster unless the contrary is proved. In other words, the headmaster’s certificate reverses the burden of proof, as it is taken as proving that Charlie was absent for the days stated on the certificate.

Apart from the headmaster’s certificate the local authority’s education officer should write a witness statement setting out the absences, giving the background history of support offered to the parent and exhibit all documents needed to prove the offence.

I would also recommend that the delegated powers under which the local authority’s education officer is authorised to operate, is evidenced by way of witness statement and exhibits. Otherwise a procedural point, arguing that there is no evidence that the prosecution is brought by a proper authority, may unnecessarily draw out proceedings.

How regular is regular?

This is a matter for the justices to decide in their discretion taking into account all the circumstances as the Act does not state a cut off point beyond which Charlie would automatically be considered to have failed to attend regularly. There is no case law on the point either. Given this area of ambiguity, I would not advise prosecutions where the issue of regularity of attendance is on the borderline.

Absence because of religious observance is not taken as an absence for the purposes of determining whether there has been regular absence.

The Defences

It is for the parent to prove their defence on the balance of probabilities, not for the local authority to disprove it. In practice that means if the parents raise a defence they will need to evidence it by way of oral and documentary evidence.

• Sickness: if the parents prove that Charlie was absent by reason of sickness (a doctor’s note is usually required), they will be acquitted of the offence.
• Unavoidable Cause: if the parents prove that Charlie was absent due to ‘unavoidable cause’ they will be acquitted of the offence. Unavoidable cause is not to be equated with reasonable cause (Jarman v Mid Glamorgan Education Authority [1985] LS Gaz R 1249). For example chronic illness of a parent is not an unavoidable cause (Jenkins v Howell [1949] 2 KB 218). The test is a difficult one for parents to meet.
• Transport: the local authority is also under a duty to provide suitable transport if the school is beyond walking distance – 3.218km for children under eight and 4.828km for children over eight – and if no transport has been provided this will provide a good defence.

Sentences

Upon conviction of Charlie’s parents of the s 444 (1) offence they are liable to a fine of up to £1,000 (a level 3 fine) each and of the s 444 (1A) offence they are liable to a fine of £2,500 (a level 4 fine) each or up to three months’ imprisonment. On top of which an application for the LA’s costs can also be made. Such costs should be set out in a schedule if possible.

John-Paul Swoboda is a barrister at Zenith Chambers in Leeds (www.zenithchambers.co.uk).