Ben Whitney explains how education supervision orders may be an under-utilised resource in the management of school attendance.
- Education supervision orders are a power given to local authorities under the Children Act 1989 to introduce some external authority to support parents in ensuring that their child is properly educated.
- They are welfare-based, not punitive, and can be used whether absences are authorised or unauthorised or even for home-educated children.
- Many local authorities do not seem to have current procedures for such orders – does this mean that a potentially useful opportunity is being missed?
Ensuring that children attend school is largely a matter of persuasion, encouragement and negotiation. If all this fails, then the most frequent court action taken by local authorities (LAs) is to prosecute parents under s.444 of the Education Act 1996 on the basis of unauthorised absence. There is, however, an alternative power under s.36 of the Children Act 1989 that is used much less frequently and is often overlooked entirely as a potential solution. It is supposed to be considered before any prosecution, but this seems to be largely a paper exercise in many LAs, if carried out at all.
On application by the LA to the Family Proceedings Court, the child and their parents can be allocated a supervisor to ‘advise, assist and befriend’ them and to give ‘directions’ as to how the child should be educated (this includes those not being properly educated ‘otherwise than at school’). Supervisors are normally Education Welfare Officers or other LA staff, which is perhaps why this provision is so rarely used, as many services have been drastically reduced. But are LAs failing to make the best use of all resources at their disposal?
ESOs in action
Many children used to go into care for not attending school. The power is now more limited but it is still significant. The focus is the child’s welfare; if this is being significantly compromised, there is a duty to address the issues. (The ‘welfare of the child’ is the paramount factor in all work arising from the Children Act.) ‘Non-intervention’ or working by agreement with parents are not more important principles than meeting the needs of the child. This is the same mistake as has sometimes been made by those who, in child abuse cases, put partnership with parents above the protection of children.
There is a widespread assumption either that education supervision orders (ESOs) are not needed (because we can achieve what is required by agreement) or, even if something is needed, ESOs cannot deliver it because they have no ‘teeth’. If we can resolve a child’s problems without using the courts, then this is, of course, preferable. However, there are many children who are not attending satisfactorily and where a more timetabled, structured and authoritative role for a professional might be of benefit.
The priority is still on reinforcing the parents’ duty, but the focus is now on longer-term responses rather than a ‘one-off’ court appearance, a small fine and no change in behaviour. It is a mistake to say that parents must be cooperative in order for an ESO to work. No Children Act Order is ever appropriate unless there is some dispute that needs resolving by the courts. The original Guidance simply said that Orders are unlikely to be effective if parents are ‘hostile’ (prosecution can be used in such situations). But there are many points on the road between cooperation and hostility.
Parents may be indifferent, disorganised or inconsistent. They may be tacitly colluding with the child’s absences rather than confronting them. They may be weak, powerless or lack basic parenting skills. They may have multiple difficulties of their own, including drug and alcohol problems, mental health needs, learning difficulties and physical health issues, and therefore unable to focus adequately on the needs of the child. They may have fully intended to educate the child themselves but are just not capable of doing so and, as a result, the child is missing out on crucial stages of their development.
There may be no grounds for leaving the absences unauthorised so there can be no offence, but the child’s welfare may still be threatened by missing large amounts of education, especially if the child has special needs. In such situations, prosecution is certainly a waste of time or even impossible. Establishing a more formal relationship with the family through an ESO may prove much more productive.
A supervisor has considerable powers. They can offer advice and should clearly aim to do so. They can also give written ‘directions’ to the parent, and persistent failure to follow such directions is an offence, even if prosecutions are rare. The supervisor can also give directions to the child; this may be seen as less useful, however, as the child cannot commit an offence by ignoring such direction. But if the ESO is not working for this reason, then further assessment by social care should take place and any new Orders or applications considered.
The role of the school
The active involvement of the child’s school, if relevant, is essential if ESOs are to succeed. The supervisor must have the confidence of the headteacher and key staff, and there has to be full consultation on any problems, including any possibility of exclusion or other major change in the child’s circumstances that would undermine the intentions of the Order. Supervisors effectively become another parental figure involved in the child’s education and cannot hope to achieve success unless everyone is working together.
Successive governments have tended to give little prominence to ESOs, although they are still included as an option in the DfE’s 2013 Guidance: School Attendance (http://bit.ly/1vGHqez). They are not a magic wand: they probably only work well with younger children, and they cannot change the unchangeable. But a mythology of difficulty seems to have grown up around them that needs to be challenged. Given adequate resources, ESOs might make a real difference to some children and prevent problems from recurring. Perhaps before searching for other ways of dealing with children’s attendance problems, and consider yet more legal powers and interventions, it might be as well to make better use of the all the options that are currently available.
- The full version of the DfE’s Guidance: School Attendance, updated in October 2014, can be found at: http://bit.ly/1vGHqez
Premium and Premium Plus subscribers can download this template document from the Toolkit section:
About the author
Ben Whitney is an independent education welfare consultant and trainer, with over 20 years’ experience in attendance management for two local authorities. He has written several books, his latest being Just Ticking the Box? Refocusing school attendance. More information on his current training and consultancy services can be found at www.ben-whitney.org.uk.
First published on this website in December 2014.