Non-Attendance at School

Please note: we are only able to take on cases on a privately paying basis. If you are looking for legal aid or for general guidance, you can refer to the Citizens Advice website.

Section 444 of the Education Act 1996 deals with the offence of failing to secure regular attendance at school of a registered pupil.

Under section 444 of the Education Act 1996, there are two offences:

1. Section 444(1) where a parent fails to secure regular attendance at school of a registered pupil; and
2. Section 444(1A) where a parent knowingly fails to secure regular attendance at school of registered pupil.

The key difference in the two sections is the word “knowingly”. An offence under Section 444(1) is what is known as a “strict liability offence” and therefore all the Local Authority has to show is that your child failed to attend school regularly.

If the Local Authority are considering a prosecution under Section 444(1A), they may wish to conduct an interview under caution with you to establish your level of knowledge as to your child’s non-attendance at school and whether there is a reasonable justification for the non-attendance. Any interview under caution must be compliant with the Police and Criminal Evidence Act 1984. If you are invited to an interview under caution with the local authority, it is important to seek legal advice before attending.

The Local Authority can bring a prosecution against a parent for non-attendance at school in two ways, either:

1. Issuing a summons to the parent requiring them to attend court; or
2. Via the Single Justice Procedure.

If you have received a summons in the post, it will contain the following information:

• Which court you are required to attend
• The date and time of that hearing
• The offence which you have been charged with, whether that is Section 444(1) or Section 444(1A)

You will also receive a copy of the case papers which the Local Authority will be relying upon as evidence against you. This should include copies of all witness statements and usually includes a copy of your child’s attendance record for the period in which the Local Authority are prosecuting.

In some instances, instead of issuing a summons, the Local Authority can issue a Single Justice Procedure (“SJP”) notice for an offence under section 444(1). The information provided in an SJP is similar to that contained in a summons, however, you will not be required to attend court. Instead, you must respond to the SJP notice indicating whether you plead guilty or not guilty.

If you plead guilty via post or do not respond to the SJP notice, the matter will be dealt with in your absence by Magistrates and a Legal Advisor and you will be notified in the post of any financial penalty.

If you plead guilty by post, it is important to complete the Means Form that is included, as any financial penalty is based on your income. If you plead not guilty, or state that you wish to attend court in person to have your matter dealt with, you will be given a date to attend court. During the court hearing, you will be required to give evidence as to why your child was not attending school.

There are a number of statutory defences available to parents, which include:

• Your child’s absence was authorised by the school your child is attending
• Your child’s absence was caused by sickness or some other unavoidable cause (if you were to state that absence was due to sickness you would need to produce a note from a doctor or medical professional to confirm this)
• Your child’s absence was due to an act of religious observation
• The distance to your child’s school is beyond the statutory limit for walking and no transport is available
• Your child is not registered at the school, and you are providing suitable education at home or elsewhere.

Sentencing for an offence under section 444

Offences under both Section 444(1) and 444(1A) are “summary only” and can therefore only be dealt with in the Magistrates court. The maximum sentence for an offence under Section 444(1) is a Level 3 fine which is £1,000. Because Section 444(1A) is an “aggravated offence”, the sentencing powers of the court are higher and can include a custodial sentence of up to 3 months imprisonment and / or a Level 4 fine which is up to £2,500.

There are several factors that the court will take into consideration when looking at sentencing for an offence under section 444 of the Education Act 1996. Some of the aggravating factors the court can take into consideration when sentencing.

Sentencing would include things such as:

• Previous convictions
• Previous non-engagement with a child’s school
• The length of time a child was not attending school
• Failing to comply with previous court orders

The court may also consider making a Parenting Order as part of their sentence. The Local Authority prosecuting the case should make you aware prior to the court hearing whether they would be seeking a Parenting Order. A court can impose a Parenting Order if it would be desirable in the interests of preventing a further offence under Section 444; and can include requirements that the court considers will assist in preventing further non-school attendance such as parenting classes and escorting the child to school for a specified period of time. The term of any such order must not exceed 12 months.