Schooling in the era of Covid-19 – prosecution of parents?

The return of children to schools in the context of the public-health emergency has proved to be a complex issue for governments north and south of the border. In Scotland, it is anticipated that almost all pupils will experience a “blend” of in-school and in-home learning from the start of the school year in August 2020.

Recent media reporting suggests that, notwithstanding that Covid-19 may still be with us in August, parents will remain under a legal obligation to send their children to school, and, where they refuse to do so, will risk prosecution. But are we really likely to see Covid-19 concerned parents in court?

The law

Parents have a duty to provide education for their children. They can do this by, for example, sending them to a state or independent school. Where a parent has sent their child to a state school, unless they subsequently withdraw them from that school with the local authority’s consent, the parent has a duty to ensure their child regularly attends. Failure to do so, without a reasonable excuse, is a criminal offence.

Analysis

In Scotland, prosecutions of parents for failing to ensure attendance by their child at school are typically brought by local authorities rather than the Procurator Fiscal. It may be a challenge , during these challenging times, for local authorities to prioritise prosecution of parents who, out of a genuine concern for their child’s welfare, decided to keep their child at home.

Even if such a prosecution was brought, ultimately the local authority would have to satisfy a judge that the parent did not have a reasonable excuse for failing to ensure their child’s regular attendance at school. This may be difficult, particularly in circumstances where a parent had an objective basis for considering that the child’s attendance at school presented a particular risk – such as where the child was classified as clinically vulnerable.

It seems much more likely that local authorities will seek to work to support parents who have concerns about their child’s return to school, using alternative measures where possible and only considering resorting to their power of prosecution as a last resort.

Brodies is well-placed to advise in all aspects of education law and regularly acts for local authorities, independent school providers and parents.