Legal measures for unauthorised absence

There are different types of legal measures that the Legal Intervention Team can use

Penalty notices

The education penalty notices (England) regulations 2004 came into force on 27 February 2004.

The local authority, headteachers (deputy and assistant headteachers authorised by the head) and the police, can issue penalty notices (Section 23 of the Anti-Behaviour Act 2003).

Penalty notices address unauthorised absence from school. This could be where it is reasonable for the school to expect the parent to ensure the child's regular attendance.

The First Penalty Notice is £80 if paid within 21 days or £160.00 if paid within 22-28 days. A second Penalty Notice may be issued if a Penalty Notice has previously been issued in the preceding three-year period to the same parent for the same child. A second Penalty Notice is £160 if paid within 21 days with no option for this second offence to be discharged at the lower rate of £80.

If a child is seen in a public place in the first five days of a fixed term or permanent exclusion, a Penalty Notice may be issued and is £60 if paid within 21 days or £120.00 if paid between 22-28 days.

Penalty Notices must be paid within the timescales provided or the local authority will consider commencing proceedings in the Magistrates’ Court for the original offence.

Penalty notices issued for non attendance in Hampshire Schools fall under Hampshire's Code of Conduct.

Attendance contract

An Attendance contract can be agreed between schools and parent(s)/carer(s) and it is intended to provide support and offer an alternative to prosecution wherever possible. Parent(s)/carer(s), and the pupil, where they are old enough, the school and the local authority can work in partnership to address any underlying issues and how they believe these should be addressed. The attendance contract should capture the views of the parent and the child and what type of support they think would be helpful to secure the pupil’s regular attendance. Attendance contracts are voluntary, but the school or local authority will record any non-compliance. This may be used as evidence in court.

School attendance order

Hampshire’s Legal Intervention Team (LIT) can issue a School Attendance Order if it believes a child of compulsory school age is not receiving a suitable education.

Parents/carers are given 15 days to provide evidence they have registered their child with a school or the Local Authority will name a suitable school within a School Attendance Order. The Order requires the parent to send their child to a named school. If they do not, they may be prosecuted under Section 443, Education Act 1996.

Education Supervision Order (ESO)

An Education Supervision Order is an order granted in the Family Proceedings Court requiring you and your child to follow directions made in the Order and work alongside a Supervising Officer to improve your child's school attendance. The supervisor must advise, assist, befriend and give directions to the supervised child and the child’s parents/carers. This is to ensure that the child is properly educated.

Hampshire County Council must consider an ESO before a prosecution. It is possible in law to apply for an ESO as well as prosecute a parent/carer. The Magistrates’ Court can make ESOs in its capacity as the Family Court.

Parenting orders

If the parent/carer is prosecuted, a Magistrates’ Court can make a Parenting Order. This is an additional order that the court can make if the parent/carer is convicted.

A parent/carer must meet the conditions/actions set by the magistrates to improve their child’s school attendance. This includes notifying the school on the first day of absence and providing medical evidence for each absence.

The parent/carer may also be ordered to attend a parenting skills course. This can be useful if the parent/carer has younger children, as the course may assist the parent/carer to ensure their younger children's regular attendance.

Authorisation to prosecute

The Legal Intervention Team can:

  • authorise legal action (i.e. prosecution under Section 443, Section 444(1), Section 444(1A), Education Act 1996)
  • make an application for an education supervision order

Hampshire Legal Services list a case before the nearest Magistrates’ Court to the child and parent/carer to:

  • serve the summons and evidence on the parent/carer

The Attendance Intervention Officer will be notified of a court hearing. They will liaise with the school regarding their attendance at court by any witness who has provided a statement.