PROSECUTIONS FOR IRREGULAR SCHOOL ATTENDANCE
Vision of Milton Keynes Local Authority:
Every child and family has access to timely and appropriate support depending on need.
Such support is individually negotiated in consultation with both adults and children in
the family, in the context of the economic, cultural and geographical circumstances of
that family.
The Local Authority believes that the use of the Magistrate’s Courts to resolve pupils’
non-attendance is justified when it is judged that such use of the court will assist parents
in fulfilling their legal responsibility to ensure that their child(ren) attend school on a
regular basis. In this sense, legal action is not considered primarily as a punitive
measure against parents, but a supportive measure in effecting a child’s right to receive
efficient and full time education.
This policy is supplementary to the over-arching MK Enforcement Policy which sets out
the general guidance and principles for Enforcement
Purpose of the Guidance
This Guidance is intended to provide guidance to officers of the Local Authority,
businesses and clients on the enforcement practices of the Local Authority.
The principles laid down seek to ensure uniformity of action, fairness and objectivity in
the manner that enforcement of legislation is conducted.
Purpose of Enforcement
The purpose of enforcement is to ensure that legislation is complied with and that the
interests of the community as a whole are safeguarded.
Local Authority & Enforcement
Local Authorities have the responsibility for ensuring that parents meet these duties
(section 437 - 447 of Education Act 1996) and the power to institute legal proceedings in
the LA is vested with the Youth Justice Manager. In Milton Keynes the execution of
these cases is undertaken by the Senior Attendance Officer (Legal Interventions)*,
acting on behalf of Local Authority when guilty pleas have been entered, and by the
Local Authority’s Solicitors in all cases where ‘not guilty’ pleas have been entered. The
Authorised Officer who has the authority to give permission for prosecutions to take
place is the relevant Head of Service at Milton Keynes Council. Enforcement will be
undertaken by the Authorised Officer who is trained and is competent to initiate and
undertake such action.
All staff involved in the enforcement of legislation will have due regard to all current
legislation, Codes of Practice and case law in discharging their duties.

Senior Attendance Officer (Legal Interventions) is hereafter known as the
“Authorised Officer.”
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Principle of Enforcement
The Local Authority aims to work in partnership with those they seek to regulate.
Therefore, advice is offered and alternatives to prosecution are considered where it is
felt that compliance may be secured by other means.
Investigative Principles


Where an offence is suspected an investigation into the circumstances and causes
will be undertaken.
Whilst striving to ensure uniformity and consistency in enforcement, all cases will
be treated on their merits.
Enforcement
Action includes:



Information action - advice or verbal warnings
Letters of warning
Pre-Court Interview
Formal Cautions
In addition to the above, regard will be given to the CPS Code for Crown Prosecutions,
which states that you must consider:


Sufficiency of evidence i.e. reasonable prospect of conviction, and
The public interest e.g. staleness of offence, health of the offender.
The decision to prosecute will be made by the Youth Justice Manager on behalf of the
LA and the duty will be carried out by the Authorised Officer.
Prosecutions will be undertaken where:
(a)
(b)
(c)
(d)
The offender is reckless, negligent or irresponsible in their actions
The offender has ignored previous advice
The offender demonstrates a blatant disregard for the law and has acted to the
detriment of another.
Any other instance where circumstances warrant it.
Available Legal Interventions
In Milton Keynes the decision to prosecute will be made following a discussion between
the school and the Authorised Officer.
Education Act, 1996 Section 444 (1)
The legal process commences when the school issue a Formal Warning Letter to the
parents/carers of a child. When this stage is reached, it is assumed that the school’s case
file on the pupil will already contain the evidence and notes upon which the case will be
based. Following the Formal Warning Letter, if there is no improvement in attendance the
parent will be invited to the school to attend an Attendance Interview, chaired by the
Authorised Officer. At this meeting, or a review of this meeting, a final decision will be
made about prosecution. If there has been no improvement in attendance a PACE
interview will take place. Parents/Carers will have been given details of their rights under
PACE at the initial meeting or by letter. If the parent does not attend either meeting and no
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reason is given for absence the parent will be prosecuted without being given a further
opportunity for attendance unless it can be shown that there is good reason not to
prosecute – i.e. improved attendance. However, the process may be discontinued at any
point in time up to the issuing of a summons if it is thought that either it is not in the public
interest to pursue the matter further, or if a child’s attendance improves, thus negating the
reason for legal action to be taken.
Prosecutions under section 444(1) of the Education Act 1996 are summary prosecution this term is applied when the case is considered less serious (e.g. there are few legal
defenses) and the defendant cannot elect for the case to be heard at a Crown Court.
Given the law as it currently stands, the offence is one of ‘strict liability’, i.e. if the
parents cannot employ one of the statutory defences they must be found guilty. The
statutory defenses are:
1. Absence with leave.
Leave in relation to school means leave granted by any person authorised to do so by
the Governing Body or proprietor of the school (authorised absence). However, the
discretion of Heads to authorise up to ten days in term time for holiday has now been
removed and leave is now only granted in exceptional circumstances.
2. The child was prevented from attending school by reason of sickness or any other
unavoidable cause. The sickness must relate to the child and not the parent or carer.
3. The child did not attend on a day set aside for religious observance. (The relevant
religion is that of the parent). Religious observance relates to recognised festivals,
e.g. Eid, Diwali.
4. The school is not within reasonable walking distance and the Local Authority have not
arranged transport or boarding accommodation near the school, or registration at a
closer school. (It is important to check with School Transport to see if the parent has
made an application for transport). Reasonable walking distance is defined in law as
no more than two miles where the child is under eight years old or three miles for
children who are 8 years old and above s444 (5a) and (5b) respectively of the
Education Act 1996.
Note: This is not relevant if the child is placed at a school through the preference of the
parents and not by the Local Authority.
5. The child is of no fixed abode (i.e. a Traveller) and the parent proves:
a. the parents’ occupation requires constant travel;
b. the parent has registered the child at school as regularly as business permits;
c. the child is six years old or over and has made at least 200 appearances in the
previous 12 months.
This defence is designed to protect Traveller parents from unreasonable prosecution for
the non-attendance of their children at school. It does not mean that part-time education
for Traveller children is legally acceptable, nor does it relieve parents of their primary duty
to ensure that children are receiving suitable education when not at school. A parent must
satisfy each of the elements i) – iii) in order to avail him/herself of this defence.
Upon investigation of individual cases by the school, where it appears that a parent is
failing in his/her duty to ensure the regular school attendance of a child, prosecution will
be considered as a beneficial intervention to facilitate regular attendance.
However, under the Human Rights Act 1998 (see footnote); some parents may argue that
they are being denied a fair trial - since they are being prosecuted for something that is
beyond their control. The High Court has held that the section 444(1) is compatible with
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Article 6 of the European Convention of Human Rights but has commented that if
prosecutions are brought before the court in such circumstances then the Magistrates
Court should deal with the parents by way of an Absolute Discharge. Obviously this will
not apply in many cases - particularly if the children are young. However, as children get
older, clearly parental control will diminish. Whilst this is not relevant in relation to proving
the elements of the offence, it can be pleaded in mitigation by parents and could lead to
the court making adverse comments in relation to a prosecution brought by the Local
Authority.
The Authorised Officer, through the Section 9 statement, needs to be in a position to
advise the magistrates on the steps taken by the school and/or Children & Families
Practice worker to bring the child's poor attendance to the attention of the parents, deal
with any reasons put forward by the parent for the poor attendance and highlight any
failure on the part of the parent to co-operate with the LA. In addition, the PACE interview
record will be presented as an exhibit and will further assist the court in understanding why
the LA has brought the prosecution.
Consequently, a realistic assessment of a parent’s authority over the child and his/her
capacity to respond appropriately to the child’s needs is crucially important - potentially
mitigating factors such as mental illness or stress must be carefully considered and this
information must be recorded in detail in the Case Assessment Notes.
Education Act, 1996 (as amended 2000) Section 444 (1A)
This is the higher level or aggravated offence and is not an “absolute offence” as, apart
from the defenses outlined under 444 (1) of this document, the parent may use the
defence of “reasonable justification” though the burden of proof is on the defendant:
therefore they have to prove that they had reasonable justification in not sending their
child to school. Reasonable justification may include for example persistent, unresolved
bullying.
Education Supervision Order (ESOs)
It is also a requirement of the Education Act, 1996 that Education Supervision Orders
(ESO) are considered prior to the prosecution of any parent for non-attendance. The ESO
is heard in the family court and the parent does not receive a criminal record. Instead, the
parent(s), and the LA agree a plan, endorsed by the court, to ensure regular attendance. If
not required a reason must be given in the Section 9 statement for not wishing one to be
imposed.
Parenting Order (POs)
Parenting Orders (PO) may also be requested at the time of the non-attendance
prosecution although these are never imposed by the court in isolation; they are always
just a single element of a sentence. A PO must be considered carefully prior to any nonattendance prosecution and reasons given if one is not required though the final decision
about the implementation of a parenting Order always resides with the court.
School Attendance Orders (SAO)
Other enforcement procedures include School Attendance Orders; these are used if a
family move into the area or for some other reason a child is without a school place (i.e.
the parent may have taken a child out of school to home educate their child but the home
education is not of a suitable standard); then the parent must make representations to the
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Local Authority and to local schools in order to ensure that their child’s education is
fulfilled, failure to do this will result in a School Attendance Order being issued by LA. This
will follow a warning to the parent(s) and the naming of a school. If a parent fails to comply
with the SAO they will be prosecuted under Section 437, Education Act, 1996 and, if found
guilty, face a fine of up to £1000.
Fixed Penalty Notices (FPNs)
Another option available to the LA is the implementation of Fixed Penalty Notices. These
may be considered for persistent lateness after the register has closed, term time holidays
and unauthorised absence. More information is available in the FPN Guidance and FPN
Code of Conduct.
All the above Orders/interventions will be dealt with on a case by case basis, where it is
deemed appropriate by the LA.
Summary
Evidence from research (cf School Attendance & the Prosecution of Parents: effects &
effectiveness p68) indicates a strong correlation between year groups and the
effectiveness of parental prosecutions - the younger the age group, the higher the
percentage of improved attendance post prosecution. Historically, pupils in Key Stage 4
have constituted the highest number of cases prosecuted, although the actual outcome of
these prosecutions in terms of improved regular attendance is consistently disappointing
(in percentage terms) when compared to similar prosecutions relating to younger aged
children.
The focus of prosecutions for irregular school attendance would therefore seem to be best
directed at the parents of pupils in younger year groups, whilst, in the quest for best
practice, the parents of pupils in Years 10 & 11 should be encouraged and/or directed to
take-up the preventative support services offered by other appropriate local agencies. In
all cases, the prosecution of parents will only take place after other interventions have
failed.
Footnote:
HUMAN RIGHTS ACT 1998
ARTICLE 6
RIGHT TO A FAIR TRIAL

Right to a fair and public hearing within a reasonable period of time

Everyone has the following minimum rights:
To be informed promptly, in a language which s/he understands and in detail, of
the nature and cause of the accusation against them.
To have time to prepare a defence
To defend him/her through legal assistance, free if in the interests of justice.
To cross examine witnesses etc.
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