Table of Contents
Education Supervision Orders
Section 36 of the Children Act 1989 empowers local authorities to apply to the magistrates court for an Education Supervision Order with respect to a child instead of or as well as prosecuting the parent for non-compliance with a School Attendance Order. Further detail can be found in Schedule 3 Part III Children Order 1989 Proceedings are governed by Chapter 2 Family Procedure Rules 2010 See Lexis web for more information.
The parents' duty is to comply with directions given by the supervisor, and persistent failure to comply with directions is an offence. An ESO normally lasts for a year, although they can be extended for up to 3 years. The parent may apply for the ESO to be "discharged" (ie ceased)
An ESO may be put in place where a registered pupil is failing to attending school regularly ie as an alternative to truancy proceedings NCB says "Even if a child or young person is made the subject of an ESO, it does not mean that parents cannot exercise their right to home educate, but that right is no longer paramount" and "whilst parents, children and young people have the right to be consulted and their wishes and feelings taken into account on matters such as elective home education, the supervising officer makes the final decision." More Should the parent deregister and take the child out of school against the direction of the supervisor, this would contravene the ESO. However, the supervisor has to discuss any directions with the family and take their wishes into account, so one way forward would be for parent and child to make a persuasive case for home education.
Where a child is not a registered pupil and the authority has evidence that there aren't adequate arrangements for home education (ie where the grounds for issuing a School Attendance Order would be met), the authority may instead apply for an ESO as an alternative to SAO proceedings. This gives the authority far greater say in the child's home education than would otherwise be the case.
Section 36 Children Act 1989(1) On the application of any local authority, the court may make an order putting the child with respect to whom the application is made under the supervision of a designated local authority.
(2) In this Act “an education supervision order” means an order under subsection (1).
(3) A court may only make an education supervision order if it is satisfied that the child concerned is of compulsory school age and is not being properly educated.
(4) For the purposes of this section, a child is being properly educated only if he is receiving efficient full-time education suitable to his age, ability and aptitude and any special educational needs he may have.
(5) Where a child is—
(a) the subject of a school attendance order which is in force under section 437 of the Education Act 1996 and which has not been complied with; or
(b) is not attending regularly within the meaning of section 444 of that Act—
(i) a school at which he is a registered pupil,
(ii) any place at which education is provided for him in the circumstances mentioned in subsection (1) or (1A) of section 444ZA of that Act, or (iii) any place which he is required to attend in the circumstances mentioned in subsection (1B) or (2) of that section, then, unless it is proved that he is being properly educated, it shall be assumed that he is not.
(6) An education supervision order may not be made with respect to a child who is in the care of a local authority.
(7) The local authority designated in an education supervision order must be—
(a) the authority within whose area the child concerned is living or will live; or
(i) the child is a registered pupil at a school; and
(ii) the authority mentioned in paragraph (a) and the authority within whose area the school is situated agree,the latter authority.
(8) Where a local authority propose to make an application for an education supervision order they shall, before making the application, consult the appropriate local authority if different.
(9) The appropriate local authority is—
(a) in the case of a child who is being provided with accommodation by, or on behalf of, a local authority, that authority; and
(b) in any other case, the local authority within whose area the child concerned lives, or will live.
(10) Part III of Schedule 3 makes further provision with respect to education supervision orders.
Schedule 3 Part III Children Act 1989
Effect of education supervision orders
12(1) Where an education supervision order is in force with respect to a child, it shall be the duty of the supervisor—
(a) to advise, assist and befriend, and give directions to—
(i) the supervised child; and
(ii) his parents,
in such a way as will, in the opinion of the supervisor, secure that he is properly educated; (b) where any such directions given to—
(i) the supervised child; or
(ii) a parent of his,
have not been complied with, to consider what further steps to take in the exercise of the supervisor’s powers under this Act.
(2) Before giving any directions under sub-paragraph (1) the supervisor shall, so far as is reasonably practicable, ascertain the wishes and feelings of—
(a) the child; and
(b) his parents,
including, in particular, their wishes as to the place at which the child should be educated.
(3) When settling the terms of any such directions, the supervisor shall give due consideration—
(a) having regard to the child’s age and understanding, to such wishes and feelings of his as the supervisor has been able to ascertain;
(b) to such wishes and feelings of the child’s parents as he has been able to ascertain.
(4) Directions may be given under this paragraph at any time while the education supervision order is in force.
13(1) Where an education supervision order is in force with respect to a child, the duties of the child’s parents under sections 7 and 444 of the Education Act 1996 (duties to secure education of children and to secure regular attendance of registered pupils) shall be superseded by their duty to comply with any directions in force under the education supervision order.
(2) Where an education supervision order is made with respect to a child—
(a) any school attendance order—
(i) made under section 437 of the Education Act 1996 with respect to the child; and (ii) in force immediately before the making of the education supervision order, shall cease to have effect; and
(b) while the education supervision order remains in force, the following provisions shall not apply with respect to the child—
(i) section 437 of that Act (school attendance orders);
(ii) section 9 of that Act (pupils to be educated in accordance with wishes of their parents);
(iii) sections 411 and 423 of that Act (parental preference and appeals against admission decisions);
(c) a youth rehabilitation order made under Part 1 of the Criminal Justice and Immigration Act 2008 with respect to the child, while the education supervision order is in force, may not include an education requirement (within the meaning of that Part);
(d) any education requirement of a kind mentioned in paragraph (c), which was in force with respect to the child immediately before the making of the education supervision order, shall cease to have effect.
Effect where child also subject to supervision order
14(1) This paragraph applies where an education supervision order and a supervision order, or youth rehabilitation order (within the meaning of Part 1 of the Criminal Justice and Immigration Act 2008)], are in force at the same time with respect to the same child.
(2) Any failure to comply with a direction given by the supervisor under the education supervision order shall be disregarded if it would not have been reasonably practicable to comply with it without failing to comply with a direction or instruction given under the other order.
15(1) An education supervision order shall have effect for a period of one year, beginning with the date on which it is made. (2) An education supervision order shall not expire if, before it would otherwise have expired, the court has (on the application of the authority in whose favour the order was made) extended the period during which it is in force.
(3) Such an application may not be made earlier than three months before the date on which the order would otherwise expire.
(4) The period during which an education supervision order is in force may be extended under sub-paragraph (2) on more than one occasion.
(5) No one extension may be for a period of more than three years.
(6) An education supervision order shall cease to have effect on—
(a) the child’s ceasing to be of compulsory school age; or
(b) the making of a care order with respect to the child;
and sub-paragraphs (1) to (4) are subject to this sub-paragraph.
16(1) An education supervision order may require the child—
(a) to keep the supervisor informed of any change in his address; and
(b) to allow the supervisor to visit him at the place where he is living.
(2) A person who is the parent of a child with respect to whom an education supervision order has been made shall—
(a) if asked by the supervisor, inform him of the child’s address (if it is known to him); and
(b) if he is living with the child, allow the supervisor reasonable contact with the child.
Discharge of orders
17(1) The court may discharge any education supervision order on the application of— (a) the child concerned;
(b) a parent of his; or
(c) the local authority designated in the order.
(2) On discharging an education supervision order, the court may direct the local authority within whose area the child lives, or will live, to investigate the circumstances of the child.
18(1) If a parent of a child with respect to whom an education supervision order is in force persistently fails to comply with a direction given under the order he shall be guilty of an offence.
(2) It shall be a defence for any person charged with such an offence to prove that—
(a) he took all reasonable steps to ensure that the direction was complied with;
(b) the direction was unreasonable; or
(c) he had complied with—
(i) a requirement included in a supervision order made with respect to the child; or
(ii) directions given under such a requirement,
and that it was not reasonably practicable to comply both with the direction and with the requirement or directions mentioned in this paragraph.
(3) A person guilty of an offence under this paragraph shall be liable on summary conviction to a fine not exceeding level 3 on the standard scale.
Persistent failure of child to comply with directions
19(1) Where a child with respect to whom an education supervision order is in force persistently fails to comply with any direction given under the order, the local authority designated in the order shall notify the appropriate local authority, if different.
(2) Where a local authority have been notified under sub-paragraph (1) they shall investigate the circumstances of the child.
(3) In this paragraph “the appropriate local authority” has the same meaning as in section 36.
20 The Secretary of State may by regulations make provision modifying, or displacing, the provisions of any enactment about education in relation to any child with respect to whom an education supervision order is in force to such extent as appears to the Secretary of State to be necessary or expedient in consequence of the provision made by this Act with respect to such orders.
21 In this Part of this Schedule “parent” has the same meaning as in the Education Act 1996.