Legal Interventions

As absence is so often a symptom of wider issues a family is facing, schools, trusts and local authorities should always work together with other local partners to understand the barriers to attendance and provide support. Where the Support First Approach has not been successful, is not engaged with, or is not appropriate, the law protects pupils' right to an education and provides a range of legal interventions to formalise attendance improvement efforts, and where all other avenues have been exhausted, enforce it through prosecuting parents.

School attendance offences: Section 444, Education Act 1996

The law states that a parent is guilty of an offence if a child of compulsory school age who is a registered pupil at a school fails to attend regularly at the school. 'Regularly' has been defined by the Supreme Court as in accordance with the rules prescribed by the school and not 'sufficiently frequent attendance'. This means a child of compulsory school age must attend the school at which they are registered every day that the school requires them to do so. Regular attendance can also be understood as attending every day that the school is open and available to the child. If the child does not attend regularly, this may mean an offence has been committed and legal intervention is the appropriate course of action.

There are two offences:

1. Section 444 (1): If the child is absent without authorisation, then the parent is guilty of an offence. This is a strict liability offence i.e., all that needs to be shown is a lack of regular attendance. Sanctions can include a fine of up to £1,000
2. Section 444 (1A): an aggravated offence. If the child is absent without authorisation and the parent knew about the child's absence and failed to act, then the parent is guilty of an offence. Sanctions can include a fine of up to £2,500 and a prison sentence of up to 3 months.

School, trusts and local authorities are expected to work together and make use of the full range of legal interventions, rather than relying solely on penalty notices or prosecution. It is for individual schools and local authorities to decide whether to use them in an individual case after considering the individual circumstances of a family. These are:

• Attendance contracts
• Education supervision orders
• Parenting Orders
• National Framework for penalty notices
• Prosecution in the Magistrates Court

Where they are used, it should be clear that it is the most appropriate intervention to change parental behaviour. Attendance legal intervention can only be used for pupils of compulsory school age. Legal interventions, including penalty notices and attendance prosecution, should not be viewed only as a punishment but rather as a measure to change behaviour and promote school attendance.

When considering if legal intervention is the right course of action, headteachers and Attendance and Entitlement Officers should have regard to their safeguarding duties as set out in the statutory guidance on Keeping Children Safe in Education.

Schools and local authorities should decide which parent(s) to involve in attendance legal intervention, but this should usually be the parent or parents who have allowed the absence. More information on who is a parent under education law can be found in School attendance guidance and legislation, under key definitions.

The overarching intention of any intervention should be to continue supporting and working with the child and family to ensure they are accessing their right to an education, in line with the support first approach.

Introduction

The national framework has been developed by the Department for Education with the aim to:

• Make penalty notices more effective by ensuring they are only used in cases where they are the most appropriate tool to change parental behaviour and improve attendance.
• Prioritise the Support First Approach by expecting support to be used in cases where it is appropriate and using penalty notices in cases where support is not appropriate (e.g. a term time holiday), has not worked or has not been engaged with.
• Improve consistency in the use of penalty notices across England by introducing a new national threshold at which they are considered.
• Improve the deterrent effect of a penalty notice by increasing the amount and introducing a new national limit of two penalty notices within a three-year period to break cycles of repeat offending.

The Local Authority does not advocate the use of penalty notices for entrenched patterns of poor attendance and will consult with a school when it's suitability as a legal intervention is uncertain. Where there are entrenched patterns of poor attendance, school should follow the Support First Approach.

National Threshold

The national threshold is 10 sessions of unauthorised absence in a rolling period of 10 school weeks.

Key points of the national threshold:

• 10 sessions are usually equivalent to 5 school days.
• A school week means any week in which there is at least one school session.
• The threshold can be met through a combination of any unauthorised absence (O, U and G codes).
• The sessions do not have to be consecutive.
• The period of 10 school weeks can also span different terms or school years.

A referral for legal intervention will not be considered by the Attendance Team unless the national threshold has been met of at least ten sessions of unauthorised absence within a period of ten school weeks. Where the national threshold has been met and a referral made, the Attendance Team will consider the case and decide which legal intervention is the most appropriate to change parental behaviour.

Schools must always consider whether a penalty notice should be issued when the national framework criteria applies, considering whether support is or isn't appropriate. If support is appropriate, schools are expected to implement or continue with support without referring for a penalty notice by following the support first approach.

If the school believe that support isn't appropriate i.e. an unauthorised holiday during term time, a penalty notice is the best available tool to improve attendance and change parental behaviour, and they have met any obligations under the Equality Act 2010, then a referral for a penalty notice can be made.

Notice to Improve

Please see our Notice to improve page for more information.

You can find the template Notice to Improve in Attendance forms and templates within the 'Legal intervention' section.

Two penalty notice limit

A penalty notice is an opportunity for a parent to discharge themselves from the duty of having committed an offence. It is an alternative to prosecution which is intended to improve attendance and change the parent's behaviour. Where penalty notices are repeatedly being issued to the same parent, they are not working to change behaviour so should no longer be considered the most appropriate tool.

In line with this, a 2 penalty notice limit has been introduced whereby only 2 penalty notices can be issued per parent, per child within a 3 year rolling period.

The second notice within that period will also be charged at a higher rate:

• The first penalty notice issued to a parent in respect of a particular pupil will be charged at £160 if paid within 28 days. This will be reduced to £80 if paid within 21 days.
• A second penalty notice issued to the same parent in respect of the same pupil is charged at a flat rate of £160 if paid within 28 days.
• A third penalty notice cannot be issued to the same parent in respect of the same child within 3 years of the date of issue of the first. In a case where the national threshold is met for a third time (or subsequent times) within those 3 years, alternative action should be taken instead.

In Norfolk, where a child's attendance has met the national threshold for a third time within 3 years and the parent(s) have already been issued with 2 penalty notices within that period, consideration will be given to prosecution under section 444 Education Act 1996.

Code of Conduct

Local Authorities and schools are required to adhere to legislation and a local code of conduct when carrying out their duties surrounding penalty notices and making decisions to issue penalty notices under section 444 of Education Act 1996. Details of how the penalty notice scheme must operate are set out in the Education (Penalty Notices) (England) Regulations 2007.

The Attendance Team are responsible for Norfolk's Local Authority Code of Conduct and are responsible for the arrangements in place for administering penalty notices. We continually strive to ensure a consistent, fair, and transparent application of the policy regarding penalty notices throughout the County.

Norfolk's Local Code of Conduct can be viewed NCC Code of Conduct for issuing Fixed Penalties regarding School Attendance Aug 2024 (Word doc) [146KB].

The three-year rolling period and applicable escalation of fines begins from the date on which the first penalty notice is issued. For example, if the first penalty notice is issued on 18 September 2024, the three year period would end on 17 September 2027. A second penalty notice issued during that period would be issued at the higher rate. A third or subsequent referral during that period would result in escalation, which is likely to be prosecution through the Magistrates Court.

The national framework also gives the Local Authority the discretion to issue a penalty notice before the threshold is met. This might apply for example, where parents have taken several term time holidays below the national threshold. If school is aware of such a scenario, they should contact the Attendance Team to discuss the case. The Local Authority also retains the discretion to consider moving straight to prosecution through the Magistrates Court where appropriate.

Responsibilities of schools

All schools wishing to issue penalty notices under the national framework and Norfolk's Local Code of Conduct must:

• evidence that literature provided to parents relating to attendance is accessible and includes clear information about when parents may be issued with a penalty notice for any unauthorised absence, including unauthorised term-time holidays.
• issue all parents with the Penalty Notice Guidance Letter informing them of the national framework; this should be issued annually at the start of each academic year and dated accordingly or, if a child joins mid-year, they need to receive the guidance letter at the time of induction. The template letter that schools must issue can be accessed in Attendance forms and templates.

The responsibility for classifying an absence lies with the school; the Attendance Team will issue a penalty notice based on the school's classification and other evidence supplied with the referral.

Cross border checks

The Attendance Team are also responsible, where a pupil has moved school or local authority area, for checking if any penalty notices have previously been issued to the parent in respect of the child. Where the child remains in Norfolk, we will complete these checks internally. If the child has moved to Norfolk in the last 3 years and the previous local authority area is known, the Attendance Team will contact the local authority to check if any penalty notices have been issued to that parent for that pupil in the previous 3 years.

The Attendance Team's email address for completing such checks is crossborder.penaltynotice@norfolk.gov.uk.

Where support is appropriate, schools should have followed a support first approach to identify the reasons for the pupil's absence, any barriers impacting the pupil's attendance and supportive strategies to remove any such barriers. In scenarios where the offers of support have not been engaged with or have not worked, a Notice to Improve - Norfolk Schools (Word doc) [34KB] should usually be sent to parent(s) to give them a final chance to engage with support. A Notice to Improve is a final opportunity for a parent to engage in support and improve attendance before a penalty notice is issued or alternative legal intervention pursued.

Schools across Norfolk may issue a Notice to Improve to any parent whose child's absence levels have triggered the national threshold for a penalty notice - i.e. 10 sessions of unauthorised absence in a rolling period of 10 school weeks.

The Notice to Improve may be used to offer parent(s) a final opportunity to engage with support and improve the attendance levels of the child concerned. Where a parent fails to engage with the offer of support during the Notice to Improve validity period and/or further unauthorised absences are recorded for the pupil and/or the pupil fails to make significant improvements in their attendance patterns, a penalty notice may be issued.

All Notices to Improve issued by Norfolk schools will have a validity period of 6 school weeks (a maximum of 30 school days) and will clearly list the attempts which have been made and support which has already been offered to resolve the absence concerns. Parents should be provided with clear contact details for the staff member(s) within the school that they should contact to access the support that remains available during the Notice to Improve validity period.

Attendance records will be reviewed daily throughout the improvement period by school and, where further unauthorised absence is recorded, consideration will be given as to whether a penalty notice referral should be submitted. Schools are not required to wait until 30 school days have passed before considering a penalty notice referral - decisions will need to be taken on a case-by-case basis, based on the level of parental/pupil engagement and/or level of attendance improvement noted.

Sufficient improvement during the Notice to Improve validity period may include evidence of no further unauthorised absences within the improvement period or a sufficient amount of improvement tailored to the specific family circumstances.

If there is no improvement in attendance or parent(s) continues not to engage once the Notice to Improve has been issued, schools should complete a referral to the Attendance Team. Based on the information provided in the referral, the Attendance Team will determine the most appropriate course of action to change parental behaviour. More information on how to complete a referral can be found on our Best practice for addressing leave of absence during term time page.

Schools should use the template Notice to Improve linked above which has been produced by the Attendance Team.  This can also be accessed in Attendance forms and templates, under Legal Intervention.

Below you will find guidance and all the documents you will need for the fixed penalty notice (FPN) process. If you require any guidance, call the fixed penalty notice advice line on 01603 222499.

Guidance for parents is available on the Norfolk County Council website.

Introduction

If a child of compulsory school age who is registered at a school fails to attend regularly at that school, then the parent is guilty of an offence contrary to Section 444(1) of the Education Act 1996. Section 23 of the Anti-Social Behaviour Act 2003 and section 103 of the Education and Inspections Act 2006 enable Local Authorities to issue penalty notices for certain offences. These notices can be used as an alternative to prosecution under section 444 of the Education Act 1996 and enable parents to discharge potential liability for conviction for that offence by paying a penalty. 

A penalty notice is a suitable intervention in circumstances where the parent is judged capable of securing their child's regular attendance at school or whereabouts during school hours but is not willing to take responsibility for doing so. However, the Local Authority does not advocate their use for entrenched patterns of poor attendance and will consult with a school when it's suitability as a legal intervention is uncertain.

Parents have a responsibility in law to ensure the regular school attendance of their child. The supreme court concluded that the term 'regular' means in accordance with the school's rules. Therefore, schools' expectations regarding attendance must be clear and unambiguous and your policy and procedure must be fair and consistent.

Local Authorities and schools are required to adhere to legislation and a Local Code of Conduct when carrying out their duties surrounding penalty notices and making decisions to issue penalty notices under section 444 of the education Act 1996. Details of how the penalty notice scheme must operate is set out in The Education (Penalty Notices) Regulations 2007.

The Attendance Team are responsible for Norfolk's Local Authority Code of Conduct and are responsible for the arrangements in place for administering penalty notices. We continually strive to ensure a consistent, fair, and transparent application of the policy regarding penalty notices throughout the County.

An Attendance contract (Word doc) [62KB] is a formal written agreement between a parent and either the school (with the exception of independent schools and non-maintained special schools) or local authority to address irregular attendance at school or alternative provision.

• It is not legally binding
• Formal route to secure engagement with support
• Not a punitive tool, intended to provide support and offer an alternative to prosecution
• Parents cannot be compelled to enter an attendance contract, and they cannot be agreed in a parent's absence
• Attendance contract should always be explored before moving forward to an education supervision order or prosecution
• The aim is for parent(s), and the pupils where they are old enough and school to work in partnership to improve attendance.

Attendance contracts in practice

The aim from the outset should be for the parent(s), and the pupil where they are old enough, and the school to work in partnership. Where a school decide to use an attendance contract, a meeting should be arranged with the parent(s) and should include the pupil if they are old enough to understand. The meeting should explain the purpose of an attendance contract and why using one would be beneficial in the family's circumstances. The parent(s) should be asked to outline their views on the pupil's attendance at school, any underlying issues and how they believe these should be addressed. The meeting should also allow them to share their views on the idea of an attendance contract and what type of support they think would be helpful to secure the pupil's regular attendance.

One attendance contract may be arranged with all parents, or in circumstances where it is desirable to have different requirements for each parent then separate attendance contracts for each parent should be arranged.

Where a parent fails to attend the meeting without good reason or notification, further attempts should be made to contact them and arrange another meeting but all attempts at support should be recorded.

Attendance contracts do not have a minimum or maximum duration. Each individual attendance contract should set out the duration it will be in place, and most are for between 3 and 12 months but can be longer if needed.

Once the requirements and support elements of the attendance contract have been agreed, the school and/or local authority and the parent should write up the contract together and sign it. The attendance contract should be written in language that the parent can easily understand (including a translation where necessary). All parties, including other partners working with the family, should be given a copy.

Parenting orders: Crime and Disorder Act 1998 (opens new window)

Parenting orders are an additional order that can be imposed following conviction for non-attendance alongside a fine and/or community order. The agreement of the parents is not required before an order is made.

A parenting order may be appropriate where the parent has not engaged in support to improve their child's attendance and where an obligation to do so would help change parental behaviour. Therefore, the Local Authority may recommend a parenting order as part of a prosecution if deemed an appropriate measure to support a child's attendance at school.

A parenting order would require a parent to comply with the arrangements specified in the order by the Court which can include a requirement for parents to attend counselling or guidance sessions (e.g. parenting education or parenting support classes) where they will receive help and support to enable them to improve their child's attendance for up to 3 months.

All parenting orders must specify a 'responsible officer' which will be named on the order. This should be the most appropriate lead practitioner working with the family, such as a family support worker or social worker.

A failure to comply with a parenting order can lead to a fine of up to £1,000.

Education supervision orders (ESO): Section 447, Education Act 1996

Education Supervision Orders (ESO) were introduced in the Children Act 1989 (section 36) and, as with other Children Act Orders, are made following application to the Family Proceedings Court. An Education Supervision Order can only apply when a child is of statutory school age and will put a child under the supervision of the LA, with a similar meaning and status to other Supervision Orders within the Act.

An Education Supervision Order (ESO) is an alternative legal intervention without the need for criminal prosecution. Therefore, an ESO can be considered when the school's work through a support first approach has been exhausted and any voluntary early help plans, or formal attendance contracts have not been successful. Prior to instigating legal proceedings, the Attendance Team must consider whether an ESO is appropriate. This will be considered in all cases, irrespective of the level of engagement by the parents.

The intention is to ensure that a child who is subject to an ESO receives their entitlement to an efficient, full-time, suitable education. An ESO gives the Local Authority a formal role in advising, helping and directing the child and the parents to ensure this entitlement is met. When an ESO is in place, the duties of the parent to secure the child's education and regular attendance are superseded by a duty to comply with any directions given under the ESO by the local authority.

ESOs are made through the Family or High Court, rather than Magistrates Court. An order initially lasts for one year, but these can be extended within the last three months for a period of up to three years at a time. As with all other attendance legal interventions, ESOs can only be used for pupils of compulsory school age.

Safeguarding

Where safeguarding concerns exist, the lead practitioner should also discuss with the school's designated safeguarding lead and children's social care services and agree an ESO would be a more suitable option than a s.17 (Children in Need) or s.47 (Child Protection) plan.

School attendance orders (SAO): Section 437, Education Act 1996 (opens new window)

"If it appears to a Local Education Authority that a child of compulsory school age in their area is not receiving suitable education, either by regular attendance at school or otherwise, they shall serve a notice in writing on the parent requiring him to satisfy them within the period specified in the notice that the child is receiving such education."

Section 437(2) of the Act provides that the period shall not be less than 15 days beginning with the day on which the notice is served. Local Authorities have the power to prosecute parents who fail to comply with a School Attendance Order under Section 443 of the Education Act 1996.

The current Norfolk process to enforce enrolment at school is:

1. An Attendance and Entitlement Officer (AEO) will aim to contact parent/carers via telephone within 5-7 working days of receiving the referral. This will usually be followed up with a home visit to support admission to school, unless not required. In some cases, it may be appropriate to make an unannounced visit instead.
2. Following the home visit, the AEO will write to parent giving them 7 working days to enrol their child into a school or provide evidence to Services to Home Educators that the child is receiving a suitable education. Checks are then made with Admissions and Services to Home Educators.
3. If the above is not followed, a School Attendance Notice 1 is sent warning of legal action if pupil is not registered at a school within 7 days.
4. The AEO will liaise with the Admissions service, who will identify a local school to be named. Where Admissions/Fair Access have already offered a school place and the parent has declined that offer, the offered school will be the named school.
5. In cases where the referral has come via the Admissions Service and a school place has already been offered, the AEO will approach the already offered school for formal consultation. In cases where the referral has come from the Fair Access Team, the AEO will not be required to hold a formal consultation with the school offered as this will have been encompassed by the Fair Access Panel as per the NCC Fair Access protocol.
6. The AEO will hold a formal consultation with the Headteacher/Principal and Chair of Governors/member of the Trust responsible for admissions of the identified School. With maintained schools, if the school does not agree to be the named school for the child, the AEO will inform the Headteacher and Chair of Governors that they have 15 days to lodge an appeal with the Secretary of State. With academies, if the school does not agree to be the named school for the child, the AEO will inform the Headteacher and trust representative that they have 7 days from the date of the consultation to outline in writing their reasons for not being named in the order and email this to the LEA.
7. A School Attendance Notice 2 is sent, warning of legal action if the pupil is not registered at the named school within 15 days.
8. A School Attendance Order is issued to the parent - they have a further 15 days to enrol their child at the named school. Failure to do so will result in them being in breach of the order.
9. The Parent is prosecuted in Magistrates court for failing to provide their child with a suitable education. The maximum sentence is a fine of £1000 and /or a Conditional Discharge.

School Attendance Order Procedure (PDF) [173KB].

Assembling the pack

Once it has been agreed between the Local Authority (LA) and school that a prosecution under Section 444 of the Education Act 1996 is the most appropriate action to take, a prosecution pack needs to be assembled. This is the paperwork that the LA will submit to court as evidence of an offence under Section 444 against the parent(s).  

A prosecution pack comprises of the following sections:

1. Witness statement
2. Exhibits
3. Headteachers certificate/registration certificate

We also ask for a year-to-date registration certificate (herringbone) that includes the commentary of reasons for absence and what contact if any has been received from parents. Although this is not evidential it is used for information purposes.

Witness statement

We have created a template for schools to use, to model the type of information that should be in the Guide Witness Statement (Word doc) [52KB]. However, it may be that the suggested points are not applicable in every situation. If that is the case, schools should adapt the template so there is an accurate account of what happened.

A witness statement is a record of what the witness saw, heard, and did in relation to the case in question. The courts understand that some tasks may be completed by other members of staff within school e.g. it is unlikely that a Headteacher/Principal will send a letter to a parent in some schools, as the task would be completed by an administrative assistant. If that is the case, the statement writer should refer to any tasks completed by other members of staff as 'the school sent a letter' rather than 'Mrs X sent a letter'. That will avoid the need for a separate statement from Mrs X.

Aside from the exhibits, the witness statement is the school's opportunity to evidence the amount of support offered to the child/family before a prosecution was agreed. It is important that school details that support in their statement, as anything that is not in the exhibits or statement cannot be used in court as evidence.

Exhibits

Your exhibits are the letters, meeting records and logs specific to the case in question. They should be exhibited in a chronological order and should be referred to throughout the witness statement e.g. if your witness statement says 'on 01/05/24 I sent a letter to Mrs X', your statement will cross reference an exhibit that evidences the letter was sent.

Exhibits should be labelled using the statement writer's initials and a chronological number e.g. if the statement writer's name is Robert Smith, the exhibits should be labelled RS1, RS2, etc.

We have created Witness statement labels template (Word doc) [12KB] for schools to use. A witness statement label should be placed on every page of the exhibits and numbered, signed and dated accordingly. The dates on the exhibits should all match the date on the witness statement. The Label should not cover up anything on the paperwork where possible.

Headteachers certificate/registration certificate

A Headteachers certificate confirms certain points required for a successful Section 444 prosecution; it proves that the child is of compulsory school age, is registered at a school, who their parents are, and their attendance during a specific period. We have created a S566 Certificate of Attendance (Word doc) [47KB] for schools to use. The Headteachers certificate and subsequent herringbone evidences the child's attendance during a specific period, known as the prosecution period (the period in which the offence occurred). The LA will confirm the appropriate prosecution period.   

The herringbone that accompanies the Headteachers certificate should show the attendance for the prosecution period only. It should also display the attendance figures for that period but does not need to display any day-to-day notes re absence. Ideally, the Headteachers certificate and the herringbone certificate should total 2 pages. Both pages need to be signed and dated by the Headteacher/Principal. The only time we can accept someone other than the Headteacher/Principal signing the certificate is if there is an interim Headteacher/Principal in place.

Sending the pack to the Local Authority

Once all the paperwork is completed, the pack should be sent to the LA via email to csattendance@norfolk.gov.uk. The scanned paperwork should all face the same way round and there should be no blank pages. It is advisable to send the separate sections of the pack as individual attachments, as any corrections/amendments can be made without the need to re scan and resend the entire pack in again e.g. if there is a small error on the witness statement that needs correcting. 

An Attendance & Entitlement Officer (AEO) will be assigned to review the pack and will confirm whether it is complete or if further amendments are required. The AEO will explain what those amendments are and will offer any support required to help get the pack 'court ready'.

Once the pack is complete

Once the pack has been confirmed complete by an AEO and the case has been agreed for prosecution, the AEO will send a letter to the parent(s) of the child. This letter will inform them that their child's absence meets the criteria for a prosecution under either Section 444 (1) or 444 (1a) and will either invite them to contact us to arrange a pre-court meeting either face to face or via video/phone call or inform them that we aim to visit them at a certain day/time to discuss the case.  

The purpose of the pre-court meeting is to discuss the barriers that are preventing regular attendance at school and explore any support that can be identified, obtain the views of the parent(s) and young person, and ensure the LA has all necessary information/evidence - especially in relation to mitigating circumstances and/or any potential statutory defence.