Education Supervision Orders
Education Supervision Orders were introduced in the Children Act 1989 (section 36) and, as with other Children Act Orders are made following an application to the Family Proceedings Court. This replaced the previous power for a Local Education Authority to apply for a Care Order because a child was not attending school.
An Education Supervision Order will put a child who is not being properly educated under the supervision of the LEA, with a similar meaning and status to other Supervision Orders within the Act. The intention is to ensure that a child who is subject to an ESO receives “efficient full-time education suited to his or her age, ability, aptitude and any special educational needs and that sufficient support, advice and guidance are provided to the parents and the child.” An ESO gives the LEA the right to advise, assist, befriend and give directions to the child and his parents.
Grounds
That a child of compulsory school age is not being properly educated:
This means that the child is not attending school regularly as in s444 of the Education Act 1996 or is subject to a School Attendance Order that is not being complied with as in s443. The grounds for applying for an
Education Supervision Order are, to all intents and purposes, identical to the offence sections of the 1996 Act. An ESO can only apply where a child is of compulsory school age.
When the ESO is in force, the child’s parent’s duties to secure the child’s education/secure regular attendance at school are superseded by a duty to comply with any directions in force under the ESO. An
ESO removes parental rights to express preferences concerning, or to appeal against, admissions decisions and certain rights to have the child educated in accordance with their wishes.
Consideration of Education Supervision Orders
Before instituting proceedings for an offence (Education Act), a
Local Education Authority SHALL consider whether it would be appropriate (instead of or as well as) to apply for an ESO. This consideration is a statutory requirement; it must take place.
It could be seen as an abuse of process if prosecutions were undertaken without evidence that these considerations have taken place; if it were proved that consideration had not taken place, defendants would be acquitted.
The CAF model can provide a good framework for making these considerations; however CAF is an early intervention tool and, if relevant, should have been started long before the point of considering legal action is reached.
If CAF has been, or is still being used with a case, attendance has not improved or the child has not become a registered pupil at a school
and is not being educated “otherwise”, then indications as to whether an ESO would be appropriate would have been apparent during the CAF process. This would inform future decision making. If there is, or needs to be more than Attendance Staff involvement, then the expectation is that CAF would have been used as an early intervention tool. If attendance has not improved through this strategy of working in partnership with an intensive programme of support for parents, then it may suggest that an ESO would be no more likely to bring about improvement.
This handbook is clear that the starting point for these considerations arises before proceedings are instituted, from the point at which a warning letter (or equivalent) is sent. Records (i.e. case notes, supervision records) must confirm that this has been done, the previous challenge hinged on the fact that these considerations had taken place but there were no records to confirm this.
Central to the consideration will be an investigation and assessment of whether, given what is known about the child and parent(s)
· The supervisor will be able to perform his/her duties and role under an
ESO
· The parents/child will comply with directions given by the supervisor
· Overall, whether the objective of the child regularly attending school
can be achieved under the order.
It is suggested that the directions to the child and parents available to the supervisor under an ESO form the basis of the assessment to be applied in each case.
Regard must also be given as to whether the making of an ESO would be in the interests of the child’s welfare. The younger the child, the greater the focus will be on directions which can be given to parents. If an ESO has been made in respect of the child in the past and was not successful, this would weigh (not necessarily decisively) against applying for another such order.
The result of each assessment must be recorded in writing and, if it is not considered appropriate to apply for an ESO, the reasons for this must also be recorded in writing. Equally, if it is considered appropriate to apply for an ESO as well as prosecuting the parent, the reasons for this decision must also be recorded.
Compliance with the following seven stages will ensure compliance with the duty imposed under section 447
1.In all cases, even where the parent’s record of co-operation is poor, before instituting proceedings under section 443/444, the AIO should inform the parents that an ESO is to be considered, what the order will entail and seek the parents and child’s views (if the child has sufficient understanding).
2. The discussions and the views of parents/child must be recorded in writing, if the parent refused to engage in this discussion, this should be recorded. This would be part of a Fast Track Review.
3. A decision should be taken by the AIO in consultation with their manager as to whether, given what is known about the family, the history of involvement and their record of co-operation (taking their views into account), it is appropriate to apply for an ESO either as an alternative to or in addition to prosecution. These discussions and decisions must be noted.
4. If it is decided that it is not appropriate to apply for an ESO, the reasons for this decision must be recorded, these reasons should focus on
a) The history of involvement with the family
b) Why it is thought that the directions available under an ESO would not succeed in achieving the objective of ensuring the child attends school regularly.
c) Why any views of the parent/child in favour of an ESO being made have not resulted in a decision to apply for that order.
5. The parent and child (if of sufficient understanding) should be informed in writing of the decision not to apply for an ESO and the reasons for that decision.
6. The Legal Process Record form can be used for recording discussions and decisions in respect of ESOs.
7. The witness statement prepared for prosecution should state both the decision that an ESO is not considered appropriate and the reasons for this conclusion.
(These notes re ESO considerations are based on the Practitioners Guide to
Child Law Newsletter, November 2009)
The Norfolk experience with ESOs is not encouraging. With the
ESOs undertaken in Norfolk, any improvement in attendance has tended to be shown during the work leading up to the ESO and no significant improvement has tended to be apparent once the ESO has been granted. If there has been no improvement during the lead up work, then there has been no improvement with an ESO.
Improvements in attendance have resulted from changes in the response and attitude of parents resulting from this work i.e. the ESO model working, when it does, without the need for the ESO. This is consistent with the “no-order” presumption within the Children Act and will suggest, if used properly, that there will be little need for ESO applications. This has led Norfolk to bring the strategies used in the lead up to ESOs, such as improved partnership working with schools and families (Fast Track) and what are now known as Parenting Contracts, preventing the need for many ESO applications.
The model required by the CAF process would be an efficient vehicle for action planning and decision making giving an informed clarity about the needs of the child, how they will be best met, the support required for parents and the level of any parental culpability.
If other agencies are involved and have not been part of prior liaison or consultation by the AIO, then a consultation should take place at an early stage in consideration.
If the AIO assessment suggests that other agencies or interventions would be more appropriate than enforcement, then these decisions can be made and documented in supervision. This would suggest that CAF should have been used at an earlier stage in the process.
Indications that an ESO application would be the appropriate strategy:
(i) The “No Order” principle, in making an application for an ESO it must be specifically proved that the making of an Order will be better for the child than the making of no order.
(ii) There must be clearly identifiable issues around school attendance for which there are clear action plans that cannot be implemented through any other strategy, without an ESO being in force with the limited additional power it involves.
(iii) An ESO should only be sought where it is likely to be effective, e.g. where parents are finding it difficult to exercise proper influence over their child and are seeking support and guidance, and this support and guidance can only be effectively provided if an ESO were to be granted. If this support and guidance could be provided e.g. through a Parenting Programme, then a Parenting Order rather than an Education Supervision Order should be applied for.
(iv)There is agreement across Children’s Services that an ESO application is the appropriate way forward to safeguard the welfare of the child and that services provided in conjunction with s17. (Children in Need) or s47 (Safeguarding) are not indicated.
Joint Agency Procedures
The requirement for a consultation between Local Education Authority and Local Authority (i.e. Social Services Department or Social Care arm of Children’s Services) to take place is detailed in the Children Act
1989. Proper records must be kept at each stage of this process. If it becomes necessary to actively consider an ESO application, then good practice would require a Planning Meeting involving all involved agencies. As the implication of a child failing to comply with Directions is for there to be an investigation (assessment) undertaken by “the Local Authority”, then it is vital for there to be full representation from across Children’s Services, especially those within the agency who would undertake any potential future investigation. These formal considerations are likely to be stimulated by the ESO considerations which are required to take place during the decision making processes as detailed in this Handbook. They could be required by a Court Directing the LEA to consider an ESO application as a part of its sentence in Magistrates Court proceedings; the same process would be indicated. The Court requires a written response within eight weeks.
Other information
· These are “Family Proceedings” and as such the child’s welfare shall be the paramount concern, the Court will have regard to the welfare checklist and the Court is required to make an Order only if, in doing so, it would be better for the child than making no Order at all. This is reframed as the “No Order” principle.
· An ESO application is very time consuming and will need to be led by a
Solicitor from Legal Services, these costs will need to be underwritten by the respective Assistant Team Manager. The required Court fees for any family Court application will also need to be paid.
· An ESO should only be sought where it can be shown that it is likely to be effective. A failure of a parent to comply with a Direction is a criminal offence that will put parents back into the Magistrates Court. Social Care colleagues must investigate the circumstances of a child who fails to comply with any reasonable Direction to see if any other services need to be provided. It must be doubtful as to whether this would meet the criteria for a service if the thresholds were not met at earlier stages in the process.
· An ESO should only be sought with parent’s knowledge and after consulting with them regarding the implications for themselves and their child (Children Act Schedule 3).The child’s views (wishes and feelings) should be sought.
· An ESO cannot be made if the child is subject to a Care Order.
· An ESO lasts for one year but can be extended, a year at a time, for up to three years. Parents lose their right to have the child educated in accordance with their wishes.
· Review procedures – a full review meeting involving parents, child and all other parties must be held every three months for the duration of any ESO. The Assistant Team Manager will chair these meetings.
These reviews will assess progress, possible future needs and plans and will consider early discharge of the ESO if targets are being met or an extension of the order if that is indicated. It will consider any Directions that need to be made to either parents or child, or both and the response to be made to any Directions which have not been complied with. Additional Review meetings can be called where there are significant concerns about the child.
Who to hold
· An ESO will be held by a suitably skilled and experienced Attendance
Improvement Officer within the area in which the child’s school is located; they will be closely supervised by their Assistant Team Manager who should ideally have appropriate Children Act experience.
· The supervising officer should be sensitive to the fact that, with an
ESO, parents lose their right to have the child educated in accordance with their wishes, they no longer have the right to move the child to another school and have no right of appeal against admissions decisions.