This article explores the legal responsibilities of educational authorities towards a child who misses school due to bullying

QUESTION

Sometimes a child suffers so badly from bullying that parents keep her at home. But is this legally justified? 

Yes — but only if evidence shows the effects of bullying to amount to ‘sickness’ or ‘unavoidable cause’ for absence. In R v Leeds Magistrates Court and Others [2005] ELR 589, a girl, 14, was absent for a total of 117 days between June and October 2003. Her school attendance had been marked over the years by frequent absence. She said bullying was the reason.

The local authority prosecuted the girl’s mother under s.444 of the Education Act 1996, which says that if a child of compulsory school age fails to attend school regularly, the parent is guilty of an offence. It is a defence that the child was prevented from attending regularly by reason of sickness, or any unavoidable cause.

First hearing of the case

The prosecution called an educational welfare officer, who said that the girl’s attendance had been irregular, with few full school weeks completed, and periods of block non-attendance. The school had put in place every possible measure to avoid the girl being bullied. The officer said the girl was very anxious and had difficulties with her peers, and that this would have been the same at any school.

The mother said that the girl had been bullied at every school she had attended, and was ‘totally stressed’. The mother was stressed herself, and had had enough, which is why she withdrew the girl from school. She said that the girl was threatening suicide and had been put on antidepressants by her doctor.

What the girl said
In her evidence the girl said that she did not go to school for fear of being bullied. She said that her mother had wanted her to attend, and that she had wanted to, but that she did not want to be bullied. She said nothing about suicide — but was not asked about it, to avoid unnecessary distress.

First decision
The justices said that the girl was not absent for unavoidable cause. She had not faced anything beyond the name-calling common in most schools, although this did affect her. They convicted the mother, but granted her an absolute discharge on the basis that they had believed her evidence.

The mother appealed to the High Court. She argued that, because the justices had believed her evidence, they should have found that the girl had been bullied, and that she had threatened or attempted suicide as a result. They should have found that the mother had encouraged the girl to attend school, before removing her because she was suicidal, and that this was unavoidable cause.

The local authority argued that the justices had rejected any finding of significant risk of suicide, and that there was a lack of medical evidence, for example from a psychiatrist, to support the alleged risk. On the evidence it was reasonable to conclude that the girl was not absent for unavoidable cause.

Both sides agreed that in assessing ‘unavoidable cause’, the phrase should be taken in relation to the child and not the parent.

Second decision
The judge said that the principal question was whether it could be inferred from the justices’ reasons that they had accepted a clear risk of suicide. The answer was that they had not thought that returning to school promoted a serious suicide risk.

The judge dismissed the appeal, saying: ‘There can, I think, be little doubt that in some cases the application of s.444 of the 1996 Act can result in what might … seem to be hard results. But the policy behind the section is, I think, reasonably clear; that is to say to seek to ensure attendance at school … and to underline the responsibilities of the parents.’

What could she have done?

One’s first reaction is to sympathise with the mother, and ask what more she could have done. Perhaps with hindsight the answer is that she should, if she believed there to be a significant risk of suicide or serious harm, have obtained professional advice and treatment at the earliest possible opportunity, reported to the school, and kept it informed.

It was conceded during the hearing in the High Court that if there were evidence of a significant risk of suicide, this could serve as a defence to the charge — although it would probably fall under the category of sickness, rather than unavoidable cause.

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

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