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What To Do If Charged With A Child’s School Attendance Offence?

I have been charged with an offence about my child failing to attend school. What do I do now?

Types of offences

There are a number of different offences under the Education Act 1996. The two most common offences we see are as follows:

  1. Failing to attend school regularly under section 444(1)
  2. Knowingly failing to cause a child to attend school regularly under section 444(1A)

It is important to note that the above two offences can only be dealt with in the Magistrates’ Court as they are what are known as ‘summary only’ matters.

Do I have to plead guilty?

A guilty plea accepts the circumstances of the alleged offence and will mean you have a criminal conviction. This can impact your future employment prospects particularly if you work with children or vulnerable individuals therefore it is important you receive legal advice before entering a plea. Our aim at Hodge Jones and Allen is to divert as many cases out of court as possible and it may be that we can write representations asking the Local Authority to discontinue (stop proceeding with) the case because of your personal circumstances, particularly if you have not been in trouble before. However, the merits of these arguments will have to be considered on a case by case basis.

Defences to failing to attend school regularly under section 444(1)

If your child was unable to attend school because they were sick or some other unavoidable reason, as long as you are able to prove this, you could have a defence under section 444(2A). It will be important for you to gather as much evidence in support of your defence such as any witnesses and documentation you have for example, medical records from the GP that your child was unwell.

Defences to knowingly failing to cause a child to attend school regularly under section 444(1A)

If you can prove that you had a reasonable justification for your failure to cause the child to attend regularly at the school, you may have a defence under section 444(1B) of the act. As above, given the burden is on you as the parent to show you had a reasonable justification it is vital you obtain as much supporting, independent, documentary evidence to strengthen your case.

There are other possible defences relating to religious days or if the local authority has failed to comply with their duty to act for the child for example making travel arrangements. Please be advised this blog is a short summary to give some initial guidance and does not constitute formal legal advice.

What sentence can I receive?

The type of sentence you receive depends on what offence you are charged with. The usual sentence for these sorts of matters is a fine however some offences do carry prison time.

The maximum sentence for the offence of failing to attend school regularly (section 444(1)) is a fine not exceeding level 3 on the standard scale, which is currently £1,000. Whereas knowingly failing to cause a child to attend school regularly (section 444(1A)) can result in either a level 4 fine (up to £2,500) or imprisonment not exceeding 3 months or both a fine and period of imprisonment.

The current sentencing guidelines the Court would consider when deciding the penalty for these offences can be found here.

Can I get Legal Aid?

Legal Aid (government funding) for these sorts of cases can be difficult to obtain as there is a two stage test. Firstly, they will look at your financial means and secondly, they will consider the ‘interests of justice’ test which largely relates to the risk of being sent to prison.

If you are on benefits, you are likely to pass the means test. If you are working and earning more than £239 per week your income will be considered above the threshold to qualify for Legal Aid.

Our firm has successfully secured Legal Aid for cases such as these, even when dealing with non-imprisonable offences e.g. failing to attend school regularly under section 444(1). Therefore, although it is difficult to obtain Legal Aid for such matters, it is not impossible.

If you wish to pay our firm privately to represent you, please contact us so we can provide you with a quote.

How can Hodge Jones and Allen help?

Ghislaine Sandoval is an Associate in our Criminal Department and has dealt with a number of these matters. Her rigorous representation of a mother charged with the offence of failing to comply with a school attendance order under section 443 of the Act resulted in the case being discontinued against her client.

If you have been charged with a criminal offence and would like one of our legal experts to represent you, please call 0330 822 3451 to discuss your case or request a callback. 


Further Reading