Should parents be prosecuted when their children miss school?

Last summer Rachel de Souza, the Children’s Commissioner, said schools should “obsess” about attendance and aim to have 100% pupils in school September 2022. Needless to say, that was not achieved but she has continued to plug away. The Commissioner does say that schools should offer better support for pupils who have mental health and other difficulties, but her attendance mantra may backfire.

There are children who don’t go to school because they simply don’t want to. But they are few and far between. Most children who miss school a lot are ill, vulnerable and/or alienated from school. Being physically away from school for so many months during the pandemic exacerbated these issues.

State schools are pressured by Ofsted to obsess about attendance, and by their local authority to take punitive action. When a child does not turn up, many schools phone and visit parents, even if they have already contacted the school to say their child is ill. A school can choose not to authorise a child’s absence if they don’t think the reasons are good enough. Unauthorised absences are racked up and reported to education welfare officers. If a child doesn’t turn up for school five times in one term, their parent is likely to receive a threatening letter from their local authority. The law assumes that parents are responsible for their children’s non-attendance at school, so need to be punished as a deterrent. Parents who don’t see the error of their ways have to pay a fixed penalty fine and/or are prosecuted. They are usually prosecuted using the single justice procedure (SJP), a process almost designed to create injustice. SJP prosecution notices are sent snail mail. The defendant must respond online or on a paper form to say whether they are guilty or not guilty. If they plead guilty, their case is considered by a single magistrate behind closed doors. The parent is fined hundreds of pounds and, if they don’t pay, they are prosecuted again. This can lead to imprisonment.

The fatal flaw in the single justice procedure is that most people do not respond to the postal prosecution. Maybe they don’t receive the letter, or don’t understand it, or mentally can’t cope with it. So, thousands of people, who may not even know they have been prosecuted, are convicted of the school non-attendance of their children.

There are many fatal flaws in the whole sanction system for school non-attendance. The principles are that

• Parents can control their children right up to their 18th birthday
• Children don’t have valid reasons to be often absent
• Threatening parents with fines will prompt them to get their children to school
• Prosecuting and fining parents is an effective deterrent

These principles don’t hold true. The parents of children who can’t get to or refuse to go to school are usually pro-school. They are already stressed out looking after a mentally ill child and the sword of Damocles is a hindrance rather than a help. Panorama followed families in which the children were struggling to get to school. One child had been bullied and the school had not resolved the situation. No wonder she wouldn’t go. Financial fines merely punish and stigmatise parents and children who usually feel terrible anyway. Of course, there are some parents who bend the rules by taking their children out of school for foreign holidays, just because its convenient. They need to acknowledge the harm caused and make amends. But I cannot believe that the 35,693 (2019) prosecutions of parents for not sending their children to school were mainly of this type. In fact, the Panorama programme and the research done by Rona Epstein suggests otherwise.

Unfortunately, the government does not seem to know how to get more children to go to school. Instead of offering more support to troubled children and parents, and trying to understand why school refusal is increasing, they are developing guidance to encourage schools to be still more punitive. The government consulted on a new framework for enforcing school attendance last year. They did not ask whether fixed penalty notices were a good idea, merely how to get them used more consistently. The majority of parents who responded to the consultation were dismissed. “We are aware that rather than disagreeing with the specifics of the proposal, many such respondents were not in favour of the wider policy of using fixed penalty notices at all. That was not, however, part of the proposal and the government is clear that there is a place for the use of fixed penalty notices and other forms of legal intervention to secure children’s right to an education as a last resort when support does not work or is not engaged with, or when it is not appropriate such as in the case of term time holidays”.

There is a huge irony in the government striving for consistency in schools combatting non-attendance. The regime seems only to apply to those enrolled in state schools. Those who home educate their children can set their own timetables for attendance and are judged not on hours but on outcomes. Meanwhile children who attend independent schools are frequently absent but their parents are never ever fined by the state for this behaviour. How consistent is a rule which only seems to apply to the state sector?

Our latest podcast is on school attendance. Campaigner Ellie Costello and solicitor Polly Sweeney discuss why parents should not be blamed or prosecuted for their children not getting to school.