Included, engaged and involved part 1: promoting and managing school attendance

Appendix 1
Measures for compulsory compliance

Attendance orders

The Education (Scotland) Act 1980 allows for an education authority to require a parent to provide an explanation for non-attendance, if it believes there is not a reasonable excuse for non-attendance (section 36). The education authority notifies the parent that a meeting or hearing is required, and that an explanation for non-attendance must be provided to the authority. To allow the parent to prepare for the meeting, it will not be held within two days of the notification but not later than seven days after the notification.

The process

If the parent fails to satisfy the authority that there was a reasonable excuse for the pupil’s non-attendance the authority may:

• proceed to prosecution through the sheriff court, or
• report the circumstances to the procurator fiscal, or
• warn the parent and postpone the decision to report for a maximum of six weeks.

In the circumstance where the education authority decides to postpone the decision it may, if the child or young person is of school age (5-16), make an attendance order. An attendance order requires the parent to ensure the child or young person attends the school which he or she has been attending or another local school (a school attended by children or young people residing in the same neighbourhood).

An attendance order:

• Requires the parent to ensure the attendance of the child or young person at a school named in the order.
• Requires that the views of the parent on which school should be named should be considered by the authority.
• May name a public school, or other school which is willing to receive the child or young person. A school at which the parent will be required to pay fees will not be named within the order unless at the request of the parent.
• Shall not name a special school unless the child or young person has additional support needs requiring specialist support.

A copy of the attendance order will be served upon the parent and will place them under a duty to ensure the child or young person’s regular attendance at the named school.

Right of appeal

If parents are unhappy, they may, within 14 days of being served with the order, appeal to the sheriff. The sheriff is able to amend, confirm or annul the order. The decision of the sheriff is final.

Parents may wish to seek legal representation when making an appeal to the sheriff. Legal aid may be available for advice and representation, subject to certain criteria for eligibility. Further information is available from the Scottish Legal Aid Board^[35].

Amending an attendance order

If the attendance order is later amended (e.g. a different school is named), the education authority should inform the parent of the proposed amendments and allow the parent 14 days to make objections. If objections are made and not upheld by the authority, the parent can appeal to the sheriff as above.

Moving between authority areas

A child or young person who is the subject of an attendance order may move from his or her home authority to a new authority area. In this case, the new authority may notify the parent of their intention to amend the attendance order by updating the school named in the order to a school which is in the family’s new catchment area.

Where a child or young person is attending a school in another authority area and the education authority providing education believes that a parent should explain the non-attendance of a child or young person at school, the authority in which the child or young person resides would be responsible for arranging a meeting or hearing and serving notice on the parent to attend the meeting or hearing for an explanation to be provided.

Prosecution

The Education (Scotland) Act 1980 states that if a parent has not complied with an attendance order, an application may be made to the sheriff court for prosecution (either by the education authority or Procurator Fiscal). If convicted, a parent may be:

• fined (not exceeding Standard scale level 3, currently not exceeding £1000),
• imprisoned for up to one month, or
• both fined and imprisoned.

Attendance orders and links to other systems

The education authority, may also make a referral to the reporter, if compulsory measures are required to support the child. (See 9.4)

Home educated children

Scottish Government guidance on the circumstances in which parents may choose to educate their children at home, and the associated procedures are available from the Scottish Government website^[36].

Individual circumstances

Family separation

In the case of a child or young person whose parents are separated, education authorities should consider the most appropriate means of communicating the process of making an attendance order to parents.

It is likely that by the time an attendance order is being considered, there will have been difficulties in the relationship between the school/education authority and the parent. Advocacy or mediation services, where both parties meet voluntarily to discuss their concerns and agree a mutual solution with an independent third party, should be used to ensure that the parent understands the process and has support to express views or appeal. Further disengagement or conflict during the attendance order process will make positive outcomes for the child difficult to achieve.

Additional Support Needs

Children who have sufficient understanding of the process and who are judged to have sufficient legal capacity (this is presumed from age 12 unless the child does not have a sufficient understanding of the matter being considered) should be kept informed of the process. They may attend meetings or hearings with their parent. Such children should be consulted with the parent on the named school or subsequent amendments. However, the action is clearly being taken against the parent who has legal responsibility for ensuring the child attends school and it is for the parent to appeal, not the young person (a child of legal capacity may appeal in the case of exclusion, see Circular 8/03 Right of appeal against the decision to exclude – paragraph 37).

The attendance order should be regarded as a stage in an ongoing process. The child may attend school following an attendance order, but support arrangements and long term monitoring of attendance and support needs will be required.

Parenting orders

Local authorities also have powers to apply to the sheriff for a parenting order under the Antisocial Behaviour (Scotland) Act 2004. These orders are for one year, and require parents to participate in programmes designed to improve their parenting by receiving support services which previously the parent has refused, and for their compliance to be monitored by a named officer.

The local authority must consult with other agencies in a multi-agency planning process, and consult with the reporter to the children’s panel, before considering with its legal advisors whether an application for a parenting order should be made.

If the procurator fiscal raises criminal proceedings in respect of an alleged breach of an order and the parent is found guilty or pleads guilty, he or she will be liable to a fine not exceeding level 3 on the standard scale (currently £1,000). If the fine is not paid a court must impose a supervised attendance order (SAO). An SAO is a community-based alternative to imprisonment for fine default. For this type of offence the court can only impose a sentence of imprisonment for the fine default where an SAO has been breached.

Guidance for authorities on parenting orders is available from Guidance on Parenting Orders: Antisocial Behaviour etc. (Scotland) Act 2004^[37].

Referral to the Reporter

Referral to the Reporter may be an option considered by an education authority in conjunction with other approaches above, or usually separately, as an important stage in engaging the child or young person and the parent in compulsory interventions to improve outcomes for the child. Referral would usually only be made after appropriate measures at a local level have been exhausted.

Where a child is failing to attend school regularly without reasonable excuse, a referral to the Reporter can be made under section 67(o) of the Children’s Hearings (Scotland) Act 2011. However, non-attendance may be a factor considered alongside other grounds for referral where there are a range of concerns about the child or young person. Where the Reporter considers that compulsory measures of supervision are necessary, the matter will be referred to a Children’s Hearing. The Children’s Hearing will make the decision on whether compulsory measures are necessary and if so, what those measures should be.

It is helpful for education authorities and Reporters to work together to make the Children’s Hearing aware of the range of approaches that schools and education authorities may have already tried, to improve a child or young person’s school attendance. It is also helpful to consider with other services, which may provide interventions recommended by the Children’s Hearing, how reintegration into school can be planned for during their work with the child or young person.

Anti-social behaviour orders, Intensive Support and Monitoring Services (ISMS)

An Acceptable Behaviour Contract (ABC) or Acceptable Behaviour Agreement is a written agreement between a person who has been involved in anti-social behaviour and one or more agencies whose role it is to prevent further anti-social behaviour i.e. a housing association, local authority, police or school etc.

They are generally used for young people, but can also be used for adults, and may be used with parents in relation to the behaviour of their children.

A local authority may also apply for an Anti-Social Behaviour Order (ASBO) under the Antisocial Behaviour etc. (Scotland) Act 2004. In these circumstances, a child or young person is likely to already have been involved in the hearings system and will be well known to children’s services. The child or young person will be considered to be at risk of persistent anti-social behaviour.

Non-attendance at school is not anti-social behaviour in itself, but clearly while a young person is not at school, his or her activities may be part of their involvement in anti‑social behaviour, causing significant disruption to the community. Improving school attendance may be made a condition of an ABC or ASBO, and services should work together to ensure that the conditions applied enhance the potential for a young person to be engaged in learning, whether in school or in the community.

Education authorities and schools can make a significant difference to outcomes for children and young people on the cusp of persistent and serious offending by working in partnership with other services to devise flexible and creative approaches to learning opportunities.

Children or young people on Intensive Support and Monitoring Services (ISMS) i.e. young people who are tagged, will be subject to highly intensive support. Some education authorities have used this as a positive opportunity to construct a wide ranging programme of opportunities, including national qualification exam study, for the young people involved.