Register Children Not In School

Legal references on this page apply to England.


NB the following applies to ENGLAND ONLY.

SEE ALSO posted May 18th, plus posted May 19th, plus published May 20th published May 23rd published June 2nd published June 9th published June 22nd published June 25th published June 30th .

On May 11th 2022 the government published the Schools Bill which puts forward sweeping changes to the way schools in England are to be run. (Click on "Get File" to download a pdf of the Bill) Part 3 of the Schools Bill contains proposals for the compulsory registration of children not in school - which the government calls the CNIS Register. It is intended that these changes will add a new section 436B to Part 6 of the Education Act 1996.

Proposals for registering and monitoring home educated children were first mooted in 2018 with a call for evidence but in April 2019 the government changed tack and since that point it has NOT been about home education registration and monitoring but instead about establishing a register of children not in school. The pre-2019 monitoring proposals DO NOT APPEAR in the Schools Bill although as I explain below there is a great deal that doesn't appear on the face of the Bill since all the detail is left for after the Bill has become law.

Part 3 of the Schools Bill sets out various consequences if parents in scope of the register fail to register or to respond to enquiries about registration from the local authority. It also proposes revisions to the process for School Attendance Orders which would replace (for England at least) the current s 437 - 443 of the Education Act 1996.

The Schools Bill appeared the day after the Queen's Speech. The Queens Speech sets out which new laws the government planned to introduce within the coming year and the measures set out in the Queen's Speech have to follow a set process laid down by parliament which necessarily takes a certain amount of time.

How A Bill Becomes Law

A law is a Bill until it receives Royal Assent and becomes an Act of Parliament. During what is called "Passage of a Bill" there are specific opportunities for members of the House of Commons and House of Lords to debate the proposals and to ask questions of the Minister responsible for seeing the Bill through, possibly with a view to pushing the government to make changes.

The following is a very useful link for explaining parliamentary words and expressions

There are two main types of parliamentary scrutiny before a Bill becomes an Act. One type of scrutiny is called a "Reading" where there is a chance for any MP (or member of the House of Lords) to comment on whichever bit of the Bill they find questionable (they may have to get their name on a list in advance to be called to speak) The other is called "Public Bill Committee".

In the House of Commons the Bill Committee means that as a smaller group of MPs have the specific task of going through the Bill line by line. Typically this Committee may meet several times a week and you can watch on Parliament TV and subsequently read a transcript of the proceedings.

In the House of Lords committee stages tends to be what is called "Committee of the Whole House" which means that scrutiny is not hived off to a small Committee Room with selected members of the House, rather any member of the House of Lords can speak to the part of the Bill under scrutiny at the time, with the proviso as above that they will have to get their name on a list in advance to be called to speak.

Bills have to go through both Houses of Parliament before they can become law, but they can start in either House. It is to a large extent a timetabling issue to spread out the workload so everything is not happening at the same time with no space on the parliamentary calendar.

NB if people are conditioned to expect a Bill to have to go through the Commons first, they might be quite alarmed when they see it is due to be debated in the Lords already, wrongly assuming that this means it is near the end of the process. The Schools Bill is one of the Bills which starts in the Lords ie it will have to go through all the stages of Readings and Committees in the House of Lords before reaching the House of Commons.

Since the first covid lockdown in March 2020 we have got used to certain types of public health law being put in place at lightning speed but this is a wholly exceptional way to make laws and is only permitted in very specific circumstances.

We have also recently seen the cap on personal contributions to Adult Social Care being brought into law virtually instantaneously. Again this was exceptional and only possible because the measure were on the statute books already but had never been brought into force.

Both of these are the exception rather than the rule and the normal passage of a bill through parliament typically takes around a year, although this emphatically does NOT mean that everything changes straight away.

Timescale for Changes Following New Law

When a Bill has passed all stages in both Houses of Parliament and become law - ie an Act on the statute books - this does not mean that all the provisions of the Bill come into force immediately. Typically there will be a few sections that do come into force the day the law is passed, but most sections will be waiting for a later start date, and some sections will never be started.

Further detail about what is called "Commencement" can be found at the end of PART 5 of the Schools Bill under the heading ""MISCELLANEOUS AND FINAL PROVISIONS." NB since the CNIS Register and associated provisions do not fall into the named sections coming into force immediately, therefore they will "come into force— (a) for the purposes of making regulations, on the day on which this Act is passed; (b) for remaining purposes, on such day as the Secretary of State may by regulations made by statutory instrument appoint."

Importance of Regulation Making Powers

As readers of the Schools Bill will soon appreciate, there is very little detail on what is called the face of the Bill so we simply have no idea of any limits as to the information the local authority may be allowed (or indeed required) to collect for the register, all this is to be set out in regulation later.

Parents will be in breach of the law if they fail to provide all the (as yet unspecified) information and will then have less than 2 weeks to provide the information AND ALSO to satisfy the local authority that the child is receiving suitable education. If the local authority is not satisfied it must issue a School Attendance Order (having found a school to name in the Order). Meanwhile there are to be harsher penalties for failing to comply with a School Attendance Order.

By way of background, there are two ways that a parent can break the law in respect of school attendance. One way is where the child is a registered pupil and the parent fails to ensure that they attend regularly (ie truancy) There is a completely DIFFERENT set of rules for cases where a child is NOT on roll at a school.

In law the only person who is able to register the child is the parent. A child does not "become registered" by virtue of a School Attendance Order. It is somewhat of a misnomer to call it an "Attendance Order" since it is actually a registration order "requiring him [the parent] to cause the child to become a registered pupil at a school named in the order." Read more here.

(As an aside and although widely misunderstood this is precisely why a child does not "become registered" by virtue of the school being named on an EHCP even where this naming is directed by a special needs Tribunal. The parent can refuse to register the child on the basis that the child is to be home educated instead, see LB Richmond upon Thames v AC 2017 as per HHJ Ward "There is no obligation on a parent to send a child to the school named in the statement but there is an obligation to secure that the child is properly educated.")

Contents of Schools Bill Part 3 School Attendance, Children not in school

NB as explained here a clause is part of a Bill. A Bill is made up of individual clauses which may be debated separately in Parliament. Any clause can be removed or amended - and new clauses may be added - before a Bill is passed. If a Bill becomes an Act of Parliament its clauses become the sections of the Act.

The numbering for the registration proposals is a bit confusing but the main thing you need to remember is that Part 3 seeks to amend the Education Act 1996 by INSERTING a block of new text after the current section 436A hence the appearance in the Schools Bill of 436B, 436C etc.

The number in bold to the furthest LEFT of the page is the clause number for the Schools Bill, while the indented number with a sub heading is the intended NEW NUMBER for the Education Act 1996. When the Bill was first published, the CNIS Register began at clause 48 but after Committee stage in the Lords, the Bill was reprinted incorporating amendments and clause 48 became clause 49 because an extra clause had been added earlier in the Bill. The latest version of the Bill can be found on the Publications page.

Original clause 48 now 49 of the new Schools Bill says:
'(1) The Education Act 1996 is amended as follows.
(2) After section 436A insert— “Children not in school"...'

The next 7 pages of the Schools Bill ALL relate to original clause 48 now 49 and are ALL proposing to add new sub-sections to the 1996 Education Act. NB wherever you spot the word "prescribed" it means we're not being told the detail yet and that it will all be filled in later after the Bill becomes law. "Regulations may make provision about ..." is another indicator that the full extent will only be revealed later.

New 436B: Local authorities will have a duty to keep a register of children not in school including flexi-schooled children

New 436C: Contents of the register.

New 436D: Duty on parents to inform the local authority and provide the information required [details of which as per 436C are yet to be decided]

New 436E: Duty on other people to provide information to the local authority - currently defined very widely as "a person providing out of school education to a child for more than the prescribed amount of time without any parent of the child being present" which would include tutors.

New 436F: Information sharing re contents of register

New 436G: Duty on local authority to provide - or secure the provision of - support to home educating parents. "The support to be provided is whatever the local authority think fit"

New 436H: Power to issue statutory guidance on sections 436B-G plus information about PENALTIES for failure to provide information under 436E (ie applies to people other than parents, penalties for parents are set out in the school attendance order clauses)

Original clause 49 now 50 of the Bill says:
'(1) The Education Act 1996 is amended as follows.
(2) After section 436H (as inserted by section 48) insert—
“School attendance orders: England"...'

New 436I: Preliminary notice as possible precursor to issuing a school attendance order, sometimes called "a notice to satisfy". Local authority must serve "preliminary notice" for a school attendance order if it appears that ANY of the conditions in A-C are met, those conditions being A - it appears the child is not receiving suitable education; B - it appears that a child is eligible to be registered but parents have not answered queries; C - it appears that the parents have failed to provide information.
The preliminary notice must be served within 3 days of the date it first appears to the local authority that any of the above conditions are met, and must specify that parents have a minimum of 10 days to respond.
There is also a new power permitting the government to issue statutory guidance on the new rules.

New 436J: Conditions for issuing the school attendance order itself, including the LA's being able to name Academies and alternative provision Academies. As noted above, the term "attendance order" is misleading, since it is actually a registration order "requiring him [the parent] to cause the child to become a registered pupil at a school named in the order."

NB if you compare 436J side by side with the current provisions for school attendance orders it can be seen that it still requires the LA to consider it "expedient" that the child should attend school; still has the same provisions for revoking the order [436P] or applying for a direction from the government, and (leaping ahead to the proposed new clause 50 of the Bill) still contains the same defence open to parents if prosecuted for not complying with the order that they are causing their child to receive suitable education otherwise than at school.

New 436K: School attendance order for a child with EHC plan - intended to replace s 441 of the Education Act 1996.

New 436L: Requirement for the LA to serve a "school nomination notice" on the parent specifying the school it intends to name in the actual school attendance order - including Academy schools.

New 436M: Exceptions to schools having to agree to be named on the school nomination notice eg impact on other pupils or school resources, or that the school is already full (ie a less popular school - for whatever reason - will still have places available)

New 436N: Duty to consult schools before naming on the school nomination notice

New 436O: Conditions for changing the name of the school on the order

New 436P: Conditions for revoking (cancelling) the school attendance order

Original clause 50 now 51 of the Bill says:
'Failure to comply with school attendance order
(1) The Education Act 1996 is amended as follows.
(2) After section 436P (as inserted by section 49) insert—
“436Q Offence of failure to comply with school attendance order ..."'

New 436Q: Consequences of failing to comply with a school attendance order (again as above, this means the parent's failing to register the child at the named school. If the parent DID register the child but then failed to ensure the child attended regularly, this would be a DIFFERENT offence) 436Q still contains the same defence as now for the parent to prove that they are causing their child to receive suitable education otherwise than at school (which is NOT a defence open to parent being prosecuted for truancy)

436Q will CHANGE the current law a) by creating a scenario where the parent CONVICTED of the offence of failing to register their child at school, can now be prosecuted AGAIN and b) by adding "imprisonment" to the range of possible penalties (presumably after repeated convictions as with truancy prosecutions although this is not specified) rather than the current cap of a level 3 fine.

Original clause 51 now 52 of the Bill notes that Schedule 4 contains amendments relating to sections 49 and 50 (now 50 and 51). Schedules are to be found at the end of a Bill (last item in the Table of Contents at the start of the Bill)

Link Reference

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