Earlier this month, Leicestershire Live reported on the case of a parent who was prosecuted and fined for failing to ensure her school-refusing teenage daughter’s regular attendance at school, despite having made valiant efforts to get her there and fully co-operating with the authorities in the face of the child’s outright defiance.
Readers proceeded to express their collective outrage that the mother should have been punished for the actions of the truculent teen, bemoaned (in varying degrees of authoritarian-speak) the breakdown of discipline in ‘schools and society today’, and berated both the council for bringing the action and the magistrates for convicting her.
The rock-and-hard place choices faced by this far-from-feckless mother are by no means uncommon, as a minority of children and young people have long been refusing to go to school for a variety of reasons. Some suffer extreme anxiety or have other unmet special needs, such as autism, while others are bored rigid by the curriculum or simply detest the regimentation of ‘factory’ schooling.
As the parent of one of the latter cohort, who refused to submit to the authority of what he considered to be a rights-disrespecting institution (a point conceded by a UN special rapporteur, no less), I have considerable sympathy for the Leicestershire parent who has done everything in her power to secure her child’s attendance. When my own son walked out of school at 13, he walked straight back into elective home education and has never looked back, but not all parents feel able or are willing to assume full-time responsibility for their children’s compulsory education – a legal duty which is theirs alone, although not a lot of people know that.
If a child is a registered pupil at a school, it is down to parents to compel them to attend regularly, whatever it takes. Now that authorised absences in England are as rare as hen’s teeth due to draconian DfE rules, parents are routinely fined, and even prosecuted, for removing their children from school for term-time holidays, family weddings and funerals, and in other circumstances once considered to be a reasonable exercise of parental rights and responsibilities.
Since Jon Platt lost his high-profile legal challenge to the punitive rules (albeit on narrow grounds, which may not rule out a further judicial review), parents, schools and local authorities have all been inhabiting the same tight space between that rock and hard place, for head teachers are no longer permitted to exercise discretion as regards absence. It is now all about presenteeism (seemingly at any cost, including self-harm and suicide) to satisfy data-sets, bolster league tables and appease Ofsted.
The regular attendance rules appear to be moot, however, when the same schools decide to exclude children, or refuse them admission (sometimes for years), with the obvious knock-on effects of educational disruption and family upheaval. As the BBC reported last week, there are more than 1500 children with special needs and disabilities (SEND) who are involuntarily out of school in England, with one mother claiming her son had been ‘squeezed out’ of school as a ‘quick cost-cutting solution’. The dubious practice of off-rolling ‘challenging’ pupils has also attracted significant media attention as families have been forced to turn to home education in the absence of any alternatives.
The DfE of course lays the blame at the door of local authorities, while parents are left, as usual, to pick up the pieces. Now, however, three families have crowdfunded a judicial review against the UK government for failing to adequately fund local authorities in England who are responsible for SEND provision. The case was heard last week and the judgment is currently awaited.
Returning to the law on school attendance, Platt’s unsuccessful challenge underlined the fact that there is almost no scope for parents in England to avoid fines and prosecution if they fail to get their children through the school gates and ensure they stay on the premises for the duration of the school day. Being more familiar with the concept in Scots law of ‘reasonable excuse’ for failure to ensure attendance, I had anticipated that a similar defence might be advanced by parents in England, where exceptional circumstances could be argued to apply. However, after closer scrutiny of the English education legislation, I was forced to conclude otherwise.
Strict liability applies to charges brought under section 444(1) of the 1996 English Education Act, whereby the burden of proof favours the local authority, and parental defences are limited to: the child’s illness (medically certified, although GPs do not issue sick notes for school-age children); geographical distance from school (although that is not clear-cut); or proven regularity of attendance. So it’s another Hobson’s choice for parents whose children are struggling to achieve the mandatory near-perfect attendance, namely deregister or be damned.
Meanwhile in Scotland, different education legislation applies, in the form of the Education (Scotland) Act 1980, when it comes to compulsory attendance for school pupils. Parents here have sometimes succeeded in arguing – for example,while awaiting council consent for the child’s removal from the school roll for home education – that they have a ‘reasonable excuse’ for failing to secure attendance because they are providing the suitable and efficient education that the law requires of them. Such a defence would no doubt also extend to the recent parental withdrawal of children from schools built on toxic landfill sites after testing positive for high levels of arsenic; yet in England, prosecutions may well have been pursued, since presenteeism apparently takes priority over children’s health, safety and wellbeing.
Revised guidance on attendance has recently been issued by the Scottish government that is fairly far removed from the English equivalent, but could still be improved. It is linked to guidance on exclusion, which disproportionately affects children with additional support needs (ASN) and exhorts schools to identify barriers to learning and provide appropriate support in order to maintain and maximise attendance. However, as Iain Nisbet, Scotland’s foremost education lawyer, points out, Scots education legislation is still firmly rooted in the authoritarian past, although enforcement measures are now likely to fall foul of the (UK-wide) Equality Act 2010 – as in the case of City of Edinburgh Council v. R – where a child refusing to attend school for reasons arising from her disability was found to have suffered discrimination.
Highland parents have meanwhile been protesting this week against planned cuts to ASN provision and the council’s failure to meet their children’s needs, with reduced timetables and regular exclusions (sometimes not in accordance with the law) being regularly reported in parent support networks. Some children have been left without school places and others have suffered as a result of poorly managed, disruptive classroom behaviour.
It took two Scots mothers to get corporal punishment in schools banned and it is now taking yet another parent-led campaign to stop violent restraint and seclusion being used against school children with ‘challenging’ behaviour arising from their additional support needs.
The ‘rights-respecting school’ oxymoron is every bit as risible as the meaningless ‘getting it right for every child’ rhetoric in Scotland, but the situation in England appears especially dire for parents who are doing their level best to ensure their children attend school, often in difficult circumstances outwith their direct control. No benefit will be derived from prosecuting the Leicestershire mother, who is still unlikely to be able to get her defiant daughter into school, but the law south of the border is such that magistrates had no choice but to convict.
There must surely come a point when even the most autocratic government minister is forced to recognise that the inflexible and archaic schooling system cannot possibly meet the learning needs of today’s children and young people, and that draconian measures to force all square-peg pupils into uniformly-round school holes are an affront to both children’s rights and parental responsibilities.