This page is designed to help parents understand the legal process relating to non‑school attendance prosecutions and to outline the defences that may be available in such cases.
Introduction
Each parent is legally responsible for ensuring that their child receives suitable education. Should your child fail to regularly attend school, the council may take legal action against you.
Under the Education Act 1996, it is a criminal offence for a parent to fail to ensure their child’s regular attendance at the school where they are registered.
Section 576 of the Education Act 1996 defines a parent as the natural parents, whether married or unmarried, any person whom, although not a natural parent, has parental responsibility and any person who, although is not a natural parent and does not have parental responsibility, has care of that child or young person.
A parent may be convicted of failing to ensure their child’s regular school attendance under Section 444(1) or Section 444(1A) of the Education Act 1996. A conviction under Section 444(1A) is more serious, as it requires evidence that the parent knowingly allowed their child to be absent from school without authorisation. A Section 444(1) offence is a strict liability offence, meaning the prosecution does not need to prove that the parent intended to commit the offence - only that the absence occurred and the parent’s legal duty was not met.
Defences in law
You can challenge the grounds on which you are being prosecuted if you can demonstrate that one or more of the following defences apply:
- Authorised absence:
- The pupil had been granted leave of absence by the school or, in the case of alternative provision, by a person authorised to do so.
- Illness or unavoidable cause:
- The pupil was prevented from attending by their ill health or any unavoidable cause, including exclusion; medical evidence has been provided to school to prove that the child was unable to attend due to ill health.
- Religious observance:
- The absence was on a day set aside for religious observance by the religious body to which the pupil’s parent(s) belong, and evidence of this has been provided to school.
- Failure to provide transport:
- The local authority are under a duty to provide transport for the pupil to school and have failed to do so. This duty applies where the allocated school place was not the parent’s preferred choice, and the distance from home exceeds 2 miles for primary schools or 3 miles for secondary schools.
- No fixed abode:
- The pupil has no fixed abode, and it can be proven that their parent(s) trade/business requires them to travel, and the pupil has attended school as regularly as the nature of the trade or business permits.
- Alternative provision:
- If the absence was from certain types of alternative provision, the parent proves the child is receiving education otherwise than by regular attendance.
Burden of proof
It is not a defence for a parent to claim that they were unaware their child was absent from school, or that they did not know it was an offence to fail to ensure their child’s regular attendance. It is the parent’s responsibility to demonstrate that one or more of the statutory defences apply.
Possible sentences
If you plead guilty or the court finds you guilty of an offence under Section 444 of the Education Act 1996, the magistrate has the power to impose penalties as follows:
- A fine of up to £1,000 (if the prosecution is under Section 444(1) of the Education Act 1996)
- A fine of up to £2,500 or imprisonment of up to 3 months (if the prosecution is under Section 444(1A) of the Education Act 1996)
- A Parenting Order
- An Education Supervision Order.
The authority will also make an application for the costs of bringing the prosecution before the court which will be a minimum of £175.