Legal intervention is a last resort and should only be considered where appropriate support and intervention have been offered and attendance has not improved. Cognus works with schools to ensure any legal action is proportionate, evidence-based and in the best interests of the child.
You should consider legal intervention when:
- Attendance remains persistently poor
- Targeted support has not resulted in improvement
- Parental engagement has been limited or ineffective
You must always discuss any potential legal action with your allocated Education Welfare Officer before proceeding. Schools can view officer allocations here: EWO Allocations
Legal Context
- A Penalty Notice does not need to be issued before prosecution is considered.
- Prosecution relates to Section 444 Education Act 1996
- Parents are prosecuted for the attendance offence, not non-payment of a fine
Decision-making and support
The school’s role
- Provide attendance data and evidence
- Document support and parental contact
- Sign attendance certificates and witness statements
The Local Authority / EWO role
- Advise on whether thresholds are met
- Review evidence
- Support witness statements
- Liaise with courts and keep schools informed
Unpaid Penalty Notices
- If you decide not to proceed to court, the FPN will be withdrawn and a withdrawal letter will be sent to the parent(s).
- A withdrawn FPN does not count towards escalation under the National Framework.
- Under the National Framework, where a Penalty Notice is unpaid and withdrawn, prosecution may be considered as an alternative enforcement route.
Evidence required
- Attendance certificate signed by the headteacher
- Section 9 witness statement
(for a copy of these templates please contact your allocated Education Welfare Officer)
Copies of:
- Attendance letters
- Records of telephone calls, meetings and home visits
- Action plans
- Meeting records and minutes
- Support offered and referrals made
- Evidence of parental engagement or non-engagement
Any exhibits attached to the witness statement should be clearly labelled using the child’s initials and exhibit number (for example, AB/1, AB/2 and AB/3).
(for a copy of the checklist please contact your allocated Education Welfare Officer)
The Magistrates must be satisfied that the evidence presented a true record of attendance and actions taken by the school.
Parental defences
Parents may raise the following statutory defences under Section 444:
- Sickness or unavoidable cause
- Authorised leave (e.g. religious observance)
- Failure by the LA to provide transport
- No fixed abode (Traveller families)
The witness statement should clearly address any potential statutory defence and explain why it does not apply in the circumstances of the case.
The legal process
- The Local Authority reviews the evidence and decides whether to proceed.
- A Single Justice Procedure Notice is issued.Parents are invited to enter a plea.
- The case is either determined under the Single Justice Procedure or listed for a Magistrates’ Court hearing.
- The Magistrates consider the evidence and reach a decision.