A Penalty Notice need not be served before any prosecution can take place.
That being said, remember when initiating court proceedings after a penalty notice going unpaid, that the parent is being prosecuted for offence to which the Penalty Notice relates and not for the non-payment of the Penalty Notice.
The offences are:
Offence: failure to secure regular attendance at school of registered pupil.
If a child of compulsory school age who is a registered pupil at a school fails to attend regularly at the school, his parent is guilty of an offence.
If in the circumstances mentioned in subsection (1) the parent knows that his child is failing to attend regularly at the school and fails without reasonable justification to cause him to do so, he is guilty of an offence.
The Decision
If you are considering taking court action, you first need to speak to your Local Authority Education Welfare Officer, see here for your allocated officer, these cases should already be discussed in your targeted support meetings.
Your allocated EWO will not only be able to assist you in your decision, they will be able to review the evidence, making sure the threshold for court action has been met, offer further resources if necessary, they can assist in completing witness statements and will also act as Liaison between the school and the courts officer keeping you up to date on the process and progress of the case.
Unpaid Penalty Notice Fines
A penalty notice fine which has gone unpaid, although we have previously asked you to consider the public interest of taking a family to court for a holiday, with the new national framework in place and headteachers no longer able to authorise any holiday except in exceptional circumstance (C code), it is understood this will become a more widely acceptable.
NB: If you decide not to proceed to court that this will mean the withdrawal of the FPN, which will then not count towards the escalation in the national framework legislation.
Evidence
Evidence for the prosecution is supplied by the school to the Local Authority Courts Officer in the form of an attendance certificate signed by the head teacher and a completed (Section 9) witness statement, you can find an example here, including evidence of letters sent to parents regarding school attendance and details of the school’s contact with parents evidencing the support the parents have been offered by the school to improve their child’s attendance.
Your witness statement should show what steps were taken by the school to try to resolve the situation along side the points stated above re the letters to parents, calls and home visits carried out there should also be evidence submitted of;
- Action plans
- Meeting minutes
- Support offered and referrals made
- Lack of parental engagement
Any exhibits/ attached documents should be labelled as the child’s initials and the number order of where they come in the witness statement (e.g. Exhibit AB/1 and Exhibit AB/2)
The Magistrates must be satisfied that it is a true record of attendance and actions taken by the school.
Legal intervention should be the last step.
Parental Defence
There are 4 defences to S444 contained in the Act
- Sickness or any unavoidable cause
- Leave – authorised absence (e.g. religious observance)
- Travel to school – LA has failed to make travel arrangements
- No fixed abode – Traveller families (it’s for the parents to prove, different rules apply)
The prosecution/ witness statement must evidence the reasons why the relevant defences are not applicable.
The Process
The Local Authority can issue a Single Justice Procedure (SJP) notice. This involves serving the parents with a SJP notice which contains details of the offence (child, school, date of birth, dates of offence), statement of witness and evidence of the child’s absence. Parents must reply to the court indicating what their plea is.
Where a parent pleads guilty, or the offence is proved in their absence (for example where a parent fails to notify the court of their plea) the case can be dealt with by a Magistrate and Legal Advisor without the need for any party to attend court.
Where a parent pleads not guilty, or wants to attend court personally for their hearing, the parent must notify the court of this, and the case will be put in a Magistrates Court list and given a court date where all parties must attend court.