Milton Keynes’ Legal Process and the Decision to Prosecute

1.Criteria for Prosecution:

The Local Authority regards prosecution as a last resort, when all other measures to assist a pupil to return to school have failed. The main factor in a decision to prosecute will be the level of co-operation the parent/carer(s) have shown to ensure that their child(ren) has attended school regularly. Where parent/carers have failed, or have refused to cooperate with the LA, staff at schools and any other agency, including Children and Family Practice Workers to ensure the regular attendance of their child at school, then the decision to prosecute the parent/carers will be made by the Senior Attendance Officer (Legal Interventions)hereby know as the “Authorised Officer”.

2.Legal Process

At the commencement of legal proceedings the school will send a Formal Warning Letter to the parent/carers. From this stage on it is good practice to write to each parent/carer separately, even though they may be a couple living at the same abode. This counteracts claims, which are sometime made by one parent/carer, that they have not seen letters sent by the school as their partner has not shared the information. A copy of this letter should been sent to the Authorised Officer so the case can be logged.

Prior to a Formal Warning Letter being sent the following will be expected as minimal intervention:

  1. Evidence of the school having written/communicated with the parent/carers and the outcome.
  2. Evidence of at least one home visit/school meeting between the school or another service such as a Children and Family Practice Team.
  3. Evidence of what the school has done to support the pupil’s return to school e.g. first day contact, re-integration plan etc…
  4. The consideration of a referral to theChildren & Family Practice Referral Hub.

Following a Formal Warning Letter being sent with the child’s attendance;

a)The school will review the child’s attendance not later than 4 school weeks.

b)The school should advice the parent/carer that further absences will not be authorised without notes from a health care professional being provided.

c)In the event that the child’s attendance has not improved (an expectation of at least 90% attendance during the 4 week period), the school will refer the matter to the Authorised Officer by sending a copy of the attendance certificate so it is clear there has not been an improvement following the warning letter. If it is accepted, the Authorised Officer will write to the parent/carers and invite them to anAttendance Interview. This will usually be held at the child’s school and a relevant member of the school staff will also be invited to attend. Other significant professionals involved with the family (if known), e.g. a child’s or family’s Social Worker or CFP worker should be offered the opportunity to attend the Attendance Interview.

Note:-

1)If lack of control over the child can be claimed in mitigation by the parent/carers – this requires an assessment byChildren’s Services or by CAMHS (if other agencies such as Children Services are involved with the case no prosecutionwill take place without prior consultation).

2)An ESO and aPO(Parenting Order)needs to be considered as part of any non-attendance prosecution.

3.The Attendance Interview

The Authorised Officerwill chair the Attendance Interview and complete the Attendance Interview form. It is important to ascertain accurate details about the parent/carers and other siblings in the family. If there are other school age siblings it is useful to have a copy of their attendance for this meeting – even if they have not been referred and the attendance is acceptable. These details e.g. names and D.O.B. of the parent/carersare usually checked in court, by the clerk of the court, to ensure that the right person has been issued with the summons.

Attendance InterviewOutcomes:

1)If the parent attends and there is a commitment to improve attendance a review will take place and the parent will be given a warning that if there is no improvement there will be a review under PACE conditions. An information leaflet will be sent out with the minutes.

2)If the attendance fails toimprove after the first meeting, the Local Authority may consider the necessity for a PACE interview as advised in DfE guidance. The interview will be based on a series of written questions to which the parent/carer will be expected to give their responses. The defendant will be formally cautioned. The defendant should be notified of his/her rights prior to the PACE interview and asked if they wish to have legal representation present, if they do wish for legal representation then the PACE interview will be arranged at a convenient date/time. Should the parent/carer attend the meeting and then decide they wish to have a legal representative or say they do not understand the Formal Caution, the interview should be terminated and reconvened at another time. At the end of the meeting the parent/carerwill be given the questions/answers to read and the parent/carerwill be given an opportunity to make any amendments. When all parties are satisfied the notes should be signed and a copy given to the parent/carer.

3)If the parent/carer(s) fail to attend the initial Attendance Interview the matter we proceed directly to court unless there is a good reason not to do so, e.g. improved attendance. The same will happen is there is no commitment to improving attendance although in those circumstances the parent/carer will be invited back for a PACE interview which they may or may not wish to attend.

4)After the initial Attendance Interview the school will update the Authorised Officer on the pupil’s attendance level after 4 weeks so he can prepare for the PACE interview.

5)Consideration will also be given to offering the parent support through the Children and Families Practice.

6)A copy of the Attendance Interview notes will be sent to the parent/carers along with the PACE information leaflet.

7)A copy of the Attendance Interview notes should also be given to school and any other professional involved with the child or family.

4.Prior to Prosecution:

Before requesting a prosecution the school must be sure that:

  1. The school has marked the pupils absences as "unauthorised" and that the signed "Certificate of Pupil Attendance" clearly indicates this;
  2. The parent/carers will not be able to claim that the child was unavoidably prevented from attending school. If the parent/carer has at any time claimed that the child is ill, sufficient enquiries (e.g. a letter to the GP) must have been made by both the school and the so that we are able to refute the parent/carers' claim;
  3. The parent/carers are not claiming that all the child’s absences were for religious observance or festivals. Most religions do not have that many days set apart exclusively for religious observance. However, if in any doubt about minority ethnic religious festivals, diaries must be checked, because the calendars by which the relevant dates are calculated differ and/or rely on the first sighting of celestial bodies, so certain festival days can only be approximate and are therefore rarely fixed. Normally only one day is recognised as authorised absence for religious observance e.g.: Eid.
  4. The child does not live more than 3 miles (if over 8 years of age) or 2 miles (if under 8 years of age) from school.If they do live more than 3 or 2 miles from the school and it is parental choice to select a school which is not catchment then they can still be prosecuted. If however, the Local Authority has selected the school which the parent/carer must send their child either because of SEN requirements or a shortage of places at the catchment school the LA is obligated to provide transportation – if this not happening then Admissions may need to be contacted prior to the case being prosecuted. However if transportation is provided there is no impediment to a prosecution.
  5. After the PACE interview the Authorised Officerwill make a decision about prosecution, having given consideration to the following:
  6. Whether the evidence provided is substantial enough to prove a case in court.
  7. Whether all options to assist the child to return to school have been explored– both by the school and other services such as the Children & Families Practice Teams.

The Authorised Officerwill also give consideration to:

  1. Whether a Parenting Order or an Education Supervision Order should be sort.
  2. When it has been decided to prosecute a case, the Authorised Officerwill inform the Authoriserof the details of the case and present him with the Section 9 and evidence. On receipt of this information Authoriser will make a decision whether or not the prosecution should be processed.
  3. On receiving authority to prosecutethe Authorised Officer will complete the summons and send to the court for authorisation.He will also notify parent/carers of his decision and the court date.

5.Preparation for Court

The Authorised Officerwill prepare the Section 9 statement, partly based on the work already complied by the school. This paper work will consist of:

1. A Summons indicating under which Section of the Education Act, 1996, the parent/carer is to be prosecuted e.g. section 444 (1) or 444 (1A).

2.A Section 9 statement written by the Authorised Officer.

3.A certificate of the child’s attendance record (showing any authorised and unauthorised absences) signed by the Head Teacher. The meaning of any symbols that might appear on the certificate are explained in the Section 9 statement.

4.All other evidence referred to in the Section 9.

5.At the end of the Sec 9 Statement, the Authorised Officerwill always record whether or not consideration was given to applying for an Education Supervision Order and a Parent/Parenting Order as the magistrates have a duty to consider these in every case.

6.Authorised and Unauthorised Absence

The DFE now require LA’s to consider Persistent Absence (PA) and do not differentiate between authorised and unauthorised absences. However, for the purposes of prosecution all absence must be unauthorised.

The following is an extract from the DFE document;Advice on WholeSchoolBehaviour & Attendance policy – September 2003.

“If a pupil of compulsory school age is absent, the register must show whether the absence was authorised or unauthorised.

Authorised absence is where the school has either given approval in advance for a pupil of compulsory school age to be out of school, or hasaccepted an explanation offered afterwards as satisfactory justification for absence.

All other absences must be treated as unauthorised.

Parent/carers may not authorise any absence, only schools can do this. Schools may authorise any absence but inappropriate use of authorised absence can be as damaging to a child’s education as unauthorised absence. As all absences should be treated as unauthorised until schools agree on a satisfactory explanation, it is clearly important that schools have consistently applied procedures for getting explanations and amending registers. The information at the end of this document shows types of absences which schools may treat as authorised”.

7.Preparing and Serving a Summons

The Process:

  1. The Authorised Officerwill cross check the details for errors or omissions.
  2. Evidence provided for the court should not exceed six months prior to the date when the Summons has been “laid before the court” – this is the “laying of information” and will include an outline of the case. The period of prosecution must be six months prior to the summons being stamped by the court.
  3. The Summons will then be taken by the Authorised Officerto the Court where it will be signed andendorsed.
  4. The signed Summons will be served on the defendant with the following documentation:

a)The Section 9 Statement.

b)Additional evidence referred to in the section 9.

c)The signed Certificate of Attendance as the first exhibit.

e)Notice to defendant: proof by written statement. This is information by letter advising that legal advice should be sought from a solicitor and that the defendant has a seven day period in which to raise any objections to any matter contained in the Section 9 Statement.

f)Notice of guilty plea

g)Notice of the Authority’s intention to cite previous convictions (where appropriate).

h)A copy of the Financial Means Form.

Note:The summons, section 9, evidence and other paperwork should be served no later than two weeks prior to the date of the hearing.

8.Serving the Summonsand Supporting Information

The summons may be served by First class post which is deemed acceptable Service by the Court. A Proof of Service form listing details of the delivery of the court pack will then be signed and stamped by the admin officer who has responsibility for the post. This can be produced in Court as Proof of Service. If accepted as ‘good service’ by the court, a case may be permitted to proceed in the absence of a defendant who has failed to attend court for the Hearing.

9.Prosecution Outcomes

There are four possible outcomes from a court case:

  1. The parent/carer attends and pleads guilty and the case is dealt with.
  2. The parent/carer pleads guilty by post and the case is dealt with.

3.The parent/carer does not attend court and has not indicated how they might plead. In these circumstances the Authorised Officerwillask for the case to be heard in absence and presents the magistrates with the “Proof of Service form” if the service is considered good then the case will, be heard in absence of the parent/carers.

4.The parent/carer can plead not guilty either by letter or in person. In this case a trial date will be set. Prior to the trial will be a Pre Trial Review. There may then be a situation where the school and/or the Children & Families Practice Worker involved in case will have to prepare a Section 9 statement and attend court to give evidence in person.

At the conclusion of the case Authorised Officer will write to the school to inform them of the outcome in court. The school will continue to closely monitor the pupil’s school attendance over the next six months, to inform future strategy and, where necessary, any further Court action, e.g. an application for a Parenting Order under section 8 of the Crime & Disorder Act 1998 or a further prosecution under Section 444(1A).

10.Proving an ‘aggravated offence’ [444 (1A)]

The higher "aggravated offence" penalty applies to parent/carers who know that their child is failing to attend regularly at school and there is no reasonable justification for this e.g. the parent/carer fails to take reasonable action or there is another underlying reason for the child's poor attendance.If a defence of “reasonable justification” is offered by the defendant when they plead “not guilty” to the charge the burden of proof falls on the defendant not the LA.

11.Primary Disclosure

The Local Authority has an obligation, when a parent/carer pleads not guilty to an offence of failing to ensure regular school attendance of her/his child, under sec 444 (1) or 444(1A), to disclose to the parent/carers legal representative,if requestedby that representative, all material contained in the school or Children and Families Practice Worker’s file that has not hitherto been disclosed as part of the Section 9 Statement. The reason for this is the defence solicitor may wish to undermine the prosecution by referring to materials in the case file.

12.Costs

A schedule of work should be drawn up to indicate to the court the costs involved in bringing a case to court, when that case has been found to be proven. The costs will be from the “start of the investigation” which is deemed to be from the Attendance Interview stage.

13.The Law

In law, parent/carers have the primary responsibility for ensuring that children of compulsory school age (5 - 16) receive a suitable education, either by regular attendance at school or otherwise (section 7 of the Education Act 1996). If a pupil of compulsory school age fails to attend school regularly, the LA can prosecute a parent/carer.

Section 576 of the Education Act 1996 defines "parent/carer" to include:

  • All natural parent/carers, whether they are married or not;
  • Any person who, although not a natural parent/carer, has "parental responsibility" for a child or young person.
  • Any person who, although not a natural parent/carer, "has care" of a child or young person. Therefore, if the child lives with an aunt, grandparent/carer or friend then they have a legal duty to ensure that the child attends school.

Section 3 of the Children Act 1989 defines "parental responsibility" (PR) as all the rights, duties, powers, responsibilities and authority which by law a parent/carer has in relation to a child and his/her property. Anyone who has Parental Responsibility (PR) can be prosecuted under Section 444 (1) of the Education Act, 1996, even if they are an absent parent/carer, as long as they have been kept informed of the process, invited to meetings and given the opportunity to rectify their child’s poor attendance.