Q: Can a parent be prosecuted for not sending a child to school when there is an education supervision order in force?

A: YES. In Graves v London Borough of Islington [2004] ELR 1, the non-attendance of a child at school led to the local authority seeking and obtaining an education supervision order under the Children Act 1989.

Although the object of an education supervision order is to help, not punish, an inadequate parent, persistent failure to comply with such an order is an offence.

Because of the child’s continued non-attendance, the local authority informed her that she would be prosecuted, not under the under the Children Act, but under the Education Act 1996, for failing to ensure her child’s attendance at school.

The mother was convicted. She appealed to the Crown Court, saying that she should have been prosecuted under the Children Act for a breach of the education supervision order.

The Education Act 1996 says that before starting proceedings for an offence under this Act, a local authority should consider whether it would be appropriate to apply for an education supervision order.

Crown Court
The Crown Court judge said that the two types of prosecution had to decide the same issue, i.e. the child’s attendance at school. Prosecution under the Education Act actually put the parent in a better position than did prosecution under the Children Act.

This was because for an Education Act prosecution the local authority had to prove, beyond reasonable doubt, that the parent knew that the child was failing to attend, whereas, for a prosecution under the Children Act, the onus was on the parent to prove, on the balance of probability, that s/he had taken all reasonable steps to comply with the education supervision order.

The judge said there had been no unfairness and he dismissed the appeal. But he went on to state a case for the consideration of the High Court:

1.   Where a local authority obtains an education supervision order, is it an abuse of process for that authority later to prosecute the child’s parent under the Education Act?
2.   Was the Crown Court right to find that there was no abuse of process?

Arguments to High Court
The mother argued that a local authority can choose between supervision order and Education Act prosecution when dealing with a truant – but once a supervision order is in place, Education Act prosecution is ruled out.
This is because the two options serve different purposes: Where parents are able to supervise but fail to do so, Education Act prosecution is appropriate; but where a parent can not supervise, a supervision order is appropriate and the parent’s duty is now to cooperate with the supervising officer.

The local authority argued that:

  • it could use either or both procedures
  • in this case it was willing to try a supervision order to see if it would work and that, when it did not work, it took, as it was entitled to do, the alternative option
  • abuse of process took place only in exceptional circumstances: even an ill-advised prosecution was not necessarily an abusive one
  • it had not manipulated any process to deny a defence or a procedural safeguard to the parent

The decision
The High Court agreed that a prosecution under the Education Act might be appropriate in addition to an education supervision order.

While a prosecution under the Education Act might be difficult while a supervision order was in force, because the parent could say: ‘I am not under a duty under the Education Act any more and you should use the supervision order process’, the possibility of a supervision order could not defeat the Education Act, despite the difficulty of fitting the two together.

There was no abuse of process in prosecuting under the Education Act.
A parent might well be in a better position under the Education Act because of the difference in the burden and standard of proof. He answered Question 1 ‘No’ and Question 2 ‘Yes’, and remitted the case to the Crown Court for further consideration.

The reality
So an educational supervision order does not prevent a prosecution under the Education Act. But in reality, a  local authority will usually do its utmost to assist the parent and child, so that the child is properly educated, before giving up, and prosecuting under the Education Act.

Michael Segal is a district judge in the family division of the High Court

Send legal problems to The Editor, Education Law Update, 33-41 Dallington Street, London EC1V 0BB or email [email protected] We regret we can not enter into individual correspondence. While it is hoped the answers given here are helpful, they should not be relied on without seeking proper advice as to their application to your own circumstances.