Attendance and children not in school

This article is part of our series of briefings on The Children’s Wellbeing and Schools Bill.

The Children's Wellbeing and Schools Bill proposes significant changes to school attendance, including home education and school attendance orders. We consider what the proposed changes mean for schools and local authorities

Several child safeguarding practice reviews have identified problems with information sharing about children who are educated at home or who attend unregistered schools. There have also been concerns about the quality of some home education provision and difficulties in monitoring children's welfare when they are not in regular contact with schools. The bill aims to address these issues by introducing new registration requirements and strengthening local authority powers.

The bill aims to prevent vulnerable children from going unnoticed, recognising the protective environment that schools provide.

Proposed key changes to attendance and out-of-school education:

• A duty on schools to notify the local authority whenever a parent intends to remove their child from school to home-educate them. 
  • Schools cannot remove children who are subject to child protection investigations or action from their roll unless the local authority has provided consent or directed the school to do so.

• A duty on local authorities to maintain a register to identify compulsory school-age children not in school and undertake strict checks on unregistered education providers.
• New provisions clarifying the process of making School Attendance Orders.

Why these changes are long overdue

Many of the proposed changes within the bill have been discussed over the course of successive governments.

The tragic case of 10-year-old Sara Sharif, who was murdered by her father after being withdrawn from school, has recently sparked further concern about the ability of parents of at-risk children to deregister their children from school when child protection issues are identified. In Sara’s case, this allowed abuse to persist unchecked. There has been a steep rise in home-educated children over the past few years.

New parental duty to obtain consent to home educate

Parents will no longer have an automatic right to home educate. Instead, parents of ‘a relevant child’ will need to obtain local authority consent before they can withdraw their child from school or stop their child attending. A ‘relevant child’ includes those who attend a special school as well as those who are the subject of local authority child protection investigations or safeguarding action.

The local authority must make their decision without undue delay.  If consent is refused, parents can appeal to the Secretary of State (in England) or Welsh Ministers (in Wales), who can either uphold the local authority's decision or send it back for reconsideration. If consent is refused, parents cannot reapply for six months.

If parents withdraw their child without consent, they commit an offence and could face prosecution.

New school duty to notify local authority of intended removal from roll

Schools will have a duty to notify the local authority when a parent intends to remove a child to educate them at home. If that child is a ‘relevant child’ the local authority must consider whether or not to grant consent to the parent for removal. 

The local authority can refuse if they believe it would be in the child's best interests to receive education by regular attendance at school, or if the proposed home education is inadequate. If either ground for refusal does not apply, the local authority must grant consent.

The local authority must serve notice of their decision on the parents and the school. There will also be an amendment to the School Attendance Regulations 2024 to make clear that schools cannot remove ‘relevant children’ from roll until they have received notice of consent from the local authority.

A new register of home-educated children

Local authorities will be required to maintain a register of compulsory school-age children who are not registered at any school, or who are registered at a school but receiving education elsewhere (e.g. home educated part-time), or who only attend further education college part-time. 

Regulations will clarify who is to be regarded as eligible for registration. Parents of registered children can request support from the local authority, which must provide advice and information about educating their child (unless the child is in school or the local authority is already arranging the child's education).

“Not a safeguarding solution”

This register is not a safeguarding solution in itself but is part of the local authority’s toolkit to help check the education and welfare of those children not in school. It will also help address concerns about children missing education and those attending unregistered schools.

In many safeguarding reviews into the deaths of child abuse victims, problems were identified with information sharing and missed opportunities for intervention, with parents able to mislead or avoid contact with authorities. Local authorities can share register information with safeguarding partners (such as police and health services), Ofsted, education inspectors, other local authorities, and the Secretary of State or Welsh Ministers if directed. All sharing must be for the purpose of promoting or safeguarding children's education or welfare.

Once a child is on the register

Once a child is on the register, parents must provide certain information to local authorities within strict time limits – specifically, within 15 days of their child becoming eligible for registration and within 15 days of any changes to their circumstances, or face a School Attendance Order (see below). Required information includes the child's and parents' details, who provides education and for how much time, details of any other education providers, and how much education the child receives without parental involvement.

Questions arise as to whether local authorities have the resource to check whether all those children on its register are receiving a suitable education. Will they instead have to prioritise on a risk-basis? And given the state of SEND provision (which is in desperate need of urgent reform), will we see even more children removed from school to be home educated thus placing an even greater burden on local authorities?

School Attendance Orders (SAOs)

Before issuing a School Attendance Order (SAO), local authorities must first send a preliminary notice to parents, giving them at least 15 days to satisfy the authority that their child is receiving suitable education (or that education outside school is in the child's best interests where child protection concerns exist). The preliminary notice must be served within five days of the authority identifying the issue. Only if parents fail to satisfy the authority can an SAO then be issued.

The Bill enables local authorities to name academies in SAOs. This will not significantly change the current position as local authorities have a right to seek a direction from the Secretary of State to an academy being named (under the terms of the funding agreement), but it makes the legislative framework clearer and the process more consistent.

Before a school is named in the SAO, it must be consulted.  Written notice of their decision to name a school must be provided within 15 days of the preliminary notice period expiring. Schools can apply to the Secretary of State (England) or Welsh Ministers (Wales) for a direction within 10 school days. 

Exceptions to the rule

The current exceptions to being named remain in place - if the child has been permanently excluded from the school or if admitting the child would breach class size limits or prejudice the provision of efficient education or the efficient use of resources.

Being full in a relevant year does not however prevent a maintained school being named (if the local authority is the admissions authority), or for academies (if there is no other local maintained school or academy that could be named). This therefore will make it harder for academies to argue against being named.

Consequences of parental non-compliance

As is the case now, the local authority must inform the school named, who then has a duty to admit the child to the school. Parental non-compliance with a School Attendance Order will be an offence (which could result in a fine up to £2,500 and/or imprisonment for up to six months). 

However, parents have defences if they can prove suitable education arrangements have been made outside school, that education outside school is in the child's best interests, or (where the order was based solely on child protection concerns) that such enquiries are no longer ongoing. Finally, there is also reference to new statutory guidance on children not in school and school attendance orders, which local authorities must have regard to.

Presumably this will contain more detail on the joined-up process with schools and parents that will need to be followed.

What schools and local authorities should consider now

Schools and local authorities should consider how to implement these changes ahead of the bill becoming law. Whilst the bill sets out detailed processes and timeframes, further regulations and statutory guidance will clarify specific operational details including registration eligibility.

Schools should consider how they will identify relevant children who may require local authority consent before being removed from the school register. Local authorities will need to develop systems for processing consent applications, maintaining registers, and issuing preliminary notices and School Attendance Orders within the required timeframes. 

Both schools and local authorities should ensure staff are trained on the new requirements and that information-sharing protocols are in place to support safeguarding.

The additional safeguarding measures contained within the Bill are certainly a step in the right direction, but local authorities will need to be properly resourced if they are to take the proactive steps expected and properly discharge their proposed new duties. Good channels of communication with schools and parents will also be essential.

Find out more about The Children’s Wellbeing and Schools Bill