Introduction

A School Attendance Order is issued when the authority is not satisfied that education is being provided otherwise than at school and where the authority considers it expedient that the child should attend school. Government Guidelines say that a school attendance order should only be served after all reasonable steps have been taken to try to resolve the situation. In most cases the SAO is threatened but not actually issued. The Education Act 1996 states that as a precursor to issuing the SAO, the local authority must serve a notice on parents if it appears that a child is not receiving education. After the formal notice period expires, if the local authority is still not satisfied that the child is receiving education otherwise than at school, the authority should write to the parent indicating that it intends to issue a School Attendance Order. The letter of intention will specify a particular school. The law requires the authority to consult with the governing body of the school and the headteacher before the school is named on the letter of intention. Case law on School Attendance Orders may be found on our page about Lord Donaldson's review of the Phillips vs Brown case.

Government Guidelines state that "at any stage following the issue of the Order, parents may present evidence to the local authority that they are now providing an appropriate education and apply to have the Order revoked". Where the authority acts in clear breach of these guidelines, additional public expenditure will be incurred by the authority's refusing to accept evidence after the Order has been issued and a formal letter of complaint may be sent to the court by the defendant's legal representative.

Magistrates court, legal aid, expert witness

Should the authority choose to prosecute if a family fails to comply with the SAO, the family will have the defence that the child is receiving education otherwise than at school. It is up to the parent how the evidence is presented. The case will be heard in the magistrates court and if the prosecution is successful the magistrate may impose a fine and/or a parenting order. Legal Aid is still available at present for parents requiring a solicitor in connection with School Attendance Orders since breaching the order (ie failing to register the child at school as directed) is a criminal offence rather than a civil offence. Legal Aid is currently awarded to people on means-tested state benefits and is otherwise awarded on a sliding scale depending on the parents' income. Criminal Legal Aid Eligibility Timing and location are important because legal aid will not be available before notification of prosecution and legal aid is highly restricted for appeals. In addition, legal aid may not cover travel costs for the legal representative. Parents may make enquiries with a legal firm prior to prosecution but will not normally be able to obtain funded specialist legal help until the prosecution has actually begun.

When seeking a law firm it will be necessary to establish whether there is a legal aid contract for criminal cases in place. Ideally the solicitor will specialise in education and have some knowledge of alternative or non-standard education. If there is no legal aid contract for criminal cases an education solicitor may still be able to offer initial advice on legal aid. However it is rare to find a solicitor with knowledge of home education law or a solicitor who grasps the family's right to choose alternative educational approaches such as autonomous or self-directed learning. It is possible to get the service of an expert witness covered by legal aid. In order to call an expert witness for the defence, the defence solicitor would first have to get funding from the Legal Services Commission in the form of a Representation Order. An application for the representation order is is made to and decided by the magistrates' court. Having obtained the RO, if a case merits expert evidence, the defence solicitor has to apply to the Legal Services Commission for "prior authority" to instruct an expert. If prior authority is granted the RO covers the costs of the expert. Read more about using expert witnesses in legally aided cases here

Education Supervision Orders

s.36 Children Act 1989 empowers LAs to apply to the courts 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.

Revoking the School Attendance Order

http://www.legislation.gov.uk/uksi/2006/1751/regulation/8/made

Deletions from Admission Register
8.—(1) The following are prescribed as the grounds on which the name of a pupil of compulsory school age shall be deleted from the admission register—
(a)where the pupil is registered at the school in accordance with the requirements of a school attendance order, that ... the order is revoked by the local education authority on the ground that arrangements have been made for the child to receive efficient full-time education suitable to his age, ability and aptitude otherwise than at school

Therefore where the child has been registered as a pupil with a school following a School Attendance Order, any parent wishing to home educate must first write to the local authority and ask for the SAO to be revoked on the grounds that arrangements have been made for the child's education. The LA may ask for further information. The order must be revoked before the child's name can be successfully deleted from the school roll.

Prosecutions for Failure to Secure Regular Attendance Registered Pupil under s.444 Education Act

It should be noted that there are a number of significant differences between prosecution under s.437 of the Education Act 1996 for breaching a School Attendance Order (ie by failing to register a child with the named school in the order) and prosecution under s.444 of the Education Act 1996 for failure to secure the regular attendance of a registered pupil. Where a child is on the school roll but not attending, it is a defence for a person charged to prove that he/she had a reasonable justification for failure to cause the child to attend regularly at the school. Reasonable justification includes sickness or other unavoidable cause. It is up to the parents to prove their defence on the balance of probabilities and this means if the parents raise this defence they will need to provide evidence. (An alternative defence would be to challenge the validity of the prosecution in cases where a child has been registered at a school by someone other than the parent.)

In cases where a parent has been served with a School Attendance Order under s.437 and has complied with the order by registering the child with a school, there could subsequently be a prosecution under s.444 if the child failed to attend regularly. As with other prosecutions under s.444 once the child is a registered pupil at a school it would not be a defence for the parent to prove that the child was receiving education otherwise than at school. Parents may offer the defence of education otherwise than at school only in cases where the child is not on a school roll.

See also amendments to the Pupil Registration Regulations concerning term time holidays which come into force in September 2013.

Representing Yourself in Court

People representing themselves in court are known as "litigant in person". This practice is likely to increase following the huge cuts to the legal aid budget as a result of the Legal Aid Sentencing and Punishment of Offenders Act 2012. Here are some useful links:
http://www.thelawyer.com/practice-areas/litigation-/-dispute-resolution/how-can-lawyers-learn-to-love-litigants-in-person/3003817.article Guide to Good Practice on Dealing with Litigants in Person pages 27-38 in this 76 page pdf http://www.resolution.org.uk/site_content_files/files/good_practice_guide_2009_for_web_2.pdf http://theiclr.blogspot.co.uk/2013/04/paying-lip-service-to-april-fools.html The judiciary and the bar have downloadable pamphlets offering help and guidance to litigants in person http://www.judiciary.gov.uk/JCO%2fDocuments%2fCJC%2fPublications%2fOther+papers%2fSmall+Claims+Guide+for+web+FINAL.pdf (wider applicability than just small claims) and http://www.barcouncil.org.uk/media/203109/srl_guide_final_for_online_use.pdf