‘Cruel and discriminatory’: new research on prosecuting parents for school absence

By Margaret Doyle

Recent research on the prosecution of parents for not ensuring their child’s regular attendance at school has highlighted the anxiety caused by threats of legal action and the disproportionate impact on women. Many, if not most, of the pupils who are ‘school refusers’ have special educational needs and/or disabilities. This blog post gives an overview of the research findings and of the wider issue of children and young people missing out on education because of perceived failures by schools and local authorities. It also highlights that options for complaining about school actions are limited and constitute a worrying gap in administrative justice.

‘The current law is cruel and discriminatory’. This is one of the conclusions of researchers exploring the use of criminal prosecution of parents in England whose children are school refusers. This understudied area of administrative justice carries echoes of what Michael Adler has highlighted, in his 2018 book, about the cruel, inhuman and degrading benefit sanctions process. He compares benefit sanctions with parking penalties and court fines and concludes that benefit sanctions are disproportionate and cause enormous hardship and are, in any case, ineffective.

Research from Coventry and Roehampton universities, published last week in the report Prosecuting Parents for Truancy: Who pays the price?, also finds that punitive measures such as criminal fines and custodial sentences are ineffective measures to address a rise in school absence. According to the Department for Education (DfE), the rates of unauthorised absence (defined by the DfE as missing 10% or more school days) continue to rise despite the prosecution of parents.

Although the reasons for unauthorised absence include holidays taken in term time, it is noteworthy that a large percentage of children out of school have special educational needs and/or disabilities (SEND); as the DfE points out, the percentage of pupils with SEND that are persistent absentees is more than two times higher (21.9%) than the rate for pupils with no identified SEND (9.8%). Many experience a high level of anxiety or school phobia, have been bullied, or have moderate or severe mental health problems. In the Prosecuting Parents study, these pupils’ absence from school is attributed by parents to a lack of support for these needs. Funding constraints are identified as one contributing factor, leading to failures in support for pupils with SEND but without the statutory protection of an Education, Health and Care Plan (EHCP). Another factor is academic pressures, exacerbated by academisation and reputational risks to schools for poor performance on SATs and GCSEs.

Legal action for persistence absence

Parents can be prosecuted for unauthorised absence of three weeks per school year. The report explains that if a local authority decides that a parent is not managing the circumstances surrounding persistent absence from school, the local authority can take steps to prosecute the parent. This prosecution carries with it a fine of up to £2,500 and, if the fine is not paid or the truancy continues, parents may be subject to a custodial sentence of up to three months.

The report sets out the stark facts: based on statistics from the Ministry of Justice (Offence Data Tool 2017), 16,406 parents were charged for truancy in 2017. The majority, 71%, were women. Nine of the ten parents receiving a custodial sentence were women. Of those receiving a community order (500), 83% were women. The researchers note that because women make up a high proportion of primary carers of children, they are the ones punished for truancy. Parents can be prosecuted even if they are unaware their child is not in school. Writing on the Special Needs Jungle blog, Rona Epstein of Coventry Law School, co-author of the report, explains that the offence of truancy ‘is strict liability, which means that the prosecution does not have to prove intent to commit the crime or even that the parent was aware that the child was missing school.’

The sample

The researchers conducted an online survey to obtain details of people’s experiences with prosecution for school absence. They provide a caveat in that the sample is small and not representative (they used online forums to reach parents, which meant they reached a disproportionate number of parents seeking support for their child’s SEND and health issues). It provides a snapshot, but more research is needed, the researchers argue, on the 16,400 parents prosecuted last year to better understand their experiences and the impact of prosecution.

Of the 126 survey respondents, 90% have a child with a SEND or health problem, and 40% have a child with autism spectrum disorder (ASD). One-fifth of the parents themselves have disabilities, and one-quarter are single parents. Of those 126 parents, 16 had themselves taken their child off roll (eg to home educate them), but only a small percentage of children received alternative education. Most appeared not to be receiving any education at all.

The local authority had taken legal action to prosecute 34% of the respondents, and 10 of the respondents had been fined between £60 and £500. Many more experienced the stress of threat of prosecution.

The stories

The stories included in the report are powerful testimony of the fear and anxiety felt by many young people with SEND, especially but not only those with ASD, and of the strain this anxiety puts on families. Most of the children affected suffer school phobia, and the reasons for school refusal appear to focus on a perceived lack of support for SEND and bullying. The report highlights issues of funding constraints, delays for assessments, the impact of SATs and academic pressure, and academisation as contributing factors that influence how and whether schools adequately support pupils with SEND. The researchers also note ‘serious concerns’ in education circles about the way parents are being pressured to home educate their children; for some pupils this is appropriate, but the researchers highlight that it is worrying when parents feel forced into home education because of threats of prosecution. It is also a ‘particularly unsuitable pathway’ for many pupils with ASD, as these pupils often ‘have lagging skills in social interactions, understanding and communication, gaps which are will not be addressed by keeping them away from school’.

Off-rolling

The number of children refusing to attend school for reasons related to their disabilities is only part of the picture. Ofsted’s 2017/18 Annual Report highlighted the issue of ‘off-rolling’, which Ofsted defines as ‘removing a pupil from the school roll without a formal, permanent exclusion or by encouraging a parent to remove their child from the school roll, when the removal is primarily in the interests of the school rather than in the best interests of the pupil‘ (p50). Between January 2016 and January 2017, 9,700 pupils dropped off school rolls between Years 10 and 11 and did not reappear on the roll of another state-funded school.

Although some of these will have moved out of the state sector, Ofsted suggests there is room for concern that some pupils are not receiving any education at all: ‘It seems unlikely that many parents would voluntarily choose to home-educate their children, or even send them to another school, in the middle of their GCSE courses.‘ It may be that pupils with SEND are being removed from the school roll illegally, because they are perceived as difficult to teach or at risk of bringing down GCSE results; Ofsted noted that more than a quarter of secondary school pupils with SEND (27%) had a fixed-term exclusion last year.

Complaints

The research focuses on prosecution of parents but also shines a light more widely on the problems arising with the SEND reforms brought in under the 2014 Children and Families Act. Although the report gives examples of good practice, it also suggests there is a ‘culture of compliance’, with schools failing to develop creative or innovative approaches to supporting attendance of children with anxiety. The issues of school absence, exclusions and off-rolling illustrate the disjointed nature of procedures for complaining about the actions of schools, a complex network with different institutions responsible for complaints depending on whether or not the pupil has SEND, whether the school in question is a local authority maintained schools or an academy, whether the issue relates to exclusion from or admission to school.

In 2011 the Local Government and Social Care Ombudsman (LGSCO) issued a report on the practices of local authorities (Out of School…out of mind?) in relation to their duties to make arrangements to provide ‘suitable education’, either at school or elsewhere, if a child of compulsory school age cannot attend school for reasons of illness, exclusion from school or otherwise. The LGSCO considers complaints from parents where a child is on roll at a school but kept at home by parents because the parents or carers believe that their child is not safe at school, for example because of bullying, or because the school can no longer effectively provide education for them. It also considers cases where a child refuses to attend school or appears to have a phobia about attending. The LGSCO states of the duty on local authorities that ‘the law says they must step in where the absence is for ‘illness, exclusion or otherwise’. The word ‘otherwise’ is key and, in our view, potentially includes any kind of reason for absence from school, provided it is reasonable’ (LGO 2011, p11).

In written evidence to the Education Select Committee in November 2018, the LGSCO argued that this ‘fragmented redress system’ threatens the success of the SEND reforms: ‘The only gap that currently prevents us from providing a complete route of redress for EHC complaints is the lack of jurisdiction over the actions of schools.’ Extending the LGSCO’s jurisdiction to schools would both provide a more coherent system for families and would allow the LGSCO ‘to provide an overview of the entire system, ensuring that lessons from one complaint can be used to drive continuous improvements in service delivery’.

Future research

The snapshot offered by the Prosecuting Parents report is a starting point, and as the researchers note, more research is needed on 16,000 parents who are prosecuted each year. The voices of these parents are important testimony to the impact the current punitive approach has on families under pressure. We also need to hear the voices of the children and young people who are out of education, whether because they are considered to be ‘school refusers’ or because they and their parents believe not enough is done to support them at school and college.

A welfare issue, not a criminal justice one

Too often the institutions of state, the bodies that make up administrative justice, use punitive measures to address what are fundamentally problems of that state. Benefit sanctions are one example, designed into a mechanism that more often punishes than support.

Criminal sanctions such as fines and threats of imprisonment have no place in the state’s duty to provide education. It is noteworthy that the punitive measures to criminalise persistent school absence in England are not used across the UK. In Scotland, for example, fines are not issued for persistent absence.

The researchers in the Prosecuting Parents project argue that it is wrong to criminalise school absence, and that a distinction should be made (as it is in some other European countries, such as Denmark) between social welfare and criminal justice. Truancy, the researchers say, should be a child welfare issue.

About the author:

 Margaret Doyle is a Visiting Research Fellow with the UK Administrative Justice Institute at the University of Essex and a mediator in special educational needs and disabilities.