The subject of school attendance in England was raised by a friend via this petition to reverse recent school attendance legislation changes.

Making sense of the law

The Education (Pupil Registration) (England) Regulations 2006

As of 1 September 2013 a new piece of legislation has become law in England (but not Wales, nor Scotland, as such control of education is a devolved power) requiring that parents do not remove their children from school during term time for certain non-allowed purposes. The legislation is secondary legislation; meaning it hasn’t been voted on directly in parliament. Instead the Secretary of State for Education and Skills (in 2006 when the legislation was drafted) has relied on the general powers under the Education Act to make regulations, rules, that amend the act in what are supposedly minor ways.

What do the Education Regulations 2006 cover

Primarily the Regulations futz around with defining how exactly schools should keep their register of pupils (alphabetical for all pupils, S.5(1), so if your school has it alpha by year then you’re in breach of the Regulations) and what specific information must be recorded. However the key thing they also do is define allowed absences, in Section 7 (quoting the Regulations as made):

Leave of absence

7.  (1)  Leave of absence may only be granted by a person authorised in that behalf by the proprietor of the school.

(2) Leave of absence shall not be granted to enable a pupil to undertake employment (whether paid or unpaid) during school hours except—

(a)employment for the purpose of taking part in a performance within the meaning of section 37 of the Children and Young Persons Act 1963(7) under the authority of a licence granted by the local authority under that section; or

(b)employment abroad for the purpose mentioned in section 25 of the Children and Young Persons Act 1933(8) where a licence has been granted under that section by a justice of the peace.

(3) Subject to paragraph (4), a pupil may be granted leave of absence from the school to enable him to go away on holiday where —

(a)an application has been made in advance to the proprietor by a parent with whom the pupil normally resides; and

(b)the proprietor, or a person authorised by the proprietor in accordance with paragraph (1), considers that leave of absence should be granted due to the special circumstances relating to that application.

(4) Save in exceptional circumstances, a pupil shall not in pursuance of paragraph (3) be granted more than ten school days leave of absence in any school year.

(5) This regulation applies only in relation to a maintained school and a special school not maintained by a local education authority.

What all that says is that you can get a certified leave of absence. Yay! But, only from the right person at the school and then:

• the leave has been applied for in advance;
• their are “special circumstances” for why you should have leave;
• unless the case is “exceptional” you’re not getting more than 10 days no matter what;

So what are the allowed “special circumstances”?

This is the law you know. The government don’t have to tell oiks like you things like that.

Is this really a good idea?

Providing balance are such things as the ECHR which gives one  “the right to respect for his private and family life” (Art 8.1, but note the limitations in 8.2). Similar provisions exist within the UN Convention on the Rights of the Child (1989), ratified by the UK Government in 1991 and in force since 1992.

Does, say, not giving a child leave to see their parent or spend time with their extended family simply because it affects a school’s statistics strike you as respecting that child’s family life?

Why this focus on attendance?

One might well be tempted to speculate that the only reason this has been done is because attendance is the one statistic that a Secretary of State, or a headteacher for that, can control without having to go to the bother of ensuring children get educated in the process. The credo appears to be that if you sit the kids in the school and automatically they’re better educated.

Heads will love it if they can bring up their OFSTED reported statistics as that shows they’ve “improved educational opportunities” or some nonsense buzzwords. MPs will love it as they can say they reduced absenteeism across the nation in a stroke. The only thing is that this assumes that the only place children get educated is stuck in the confines of a classroom; that they can’t be educated by a holiday with their family.

Indeed lets assume they’re right. No education is happening. Is it OK for a child to just spend time with their family when they would otherwise be in school doing lessons? In my opinion it often is.

Legislation agrees with me (shocker!!)

Hang on there, what? Yes it’s true but only in a limited sense. You see it’s fine for a child – according to legislation (see “loophole” section below) – to be out of school. They don’t have to be on an educational trip, they can be doing a job. But not just any job, only one that’s appeasing the media conglomerates, only if they’re involved in a “performance” under S.37 of the Children and Young Persons Act 1963.

So it’s right there, if your child is acting in a film that’s perfectly fine they don’t need no stinking education then. If they’re spending time with their grandma, that absolutely isn’t fine. Not unless their grandma is an actress and it’s for a performance.

See priorities perfectly aligned with common sense. /s

[Yes, it’s sarcasm; no, I can’t help it.]

I Am Not A Lawyer – bear that in mind as you read the following speculations not intended as legal advice.

A loophole in the Regulations?

So anyway it looks to me as if there is a loophole.

Let’s go back to S.7(2)(a) above:

(2) Leave of absence shall not be granted to enable a pupil to undertake employment (whether paid or unpaid) during school hours except—

(a)employment for the purpose of taking part in a performance within the meaning of section 37 of the Children and Young Persons Act 1963(7) under the authority of a licence granted by the local authority under that section; or

So leave of absence can be granted to take part in a performance as long as that performance is in keeping with the relevant legislation.

Now let’s look at S.37 of the Children and Young Persons Act 1963 being referred back to:

(3)A licence under this section shall not be required for any child to take part in a performance to which [F7subsection (2) of] this section applies if [F7no payment in respect of his taking part in the performance, other than for defraying expenses, is made to him or to another person, and—]

(a)in the six months preceding the performance he has not taken part in other performances to which [F8subsection (2) of] this section applies on more than three days; or

(b)the performance is given under arrangements made by a school (within the meaning of [F9the Education Act 1996] or the M3Education (Scotland) Act 1962) or made by a body of persons approved for the purposes of this section by the Secretary of State or by the local authority in whose area the performance takes place, F10. . .;

Performance without a license?

Initially I thought that Section 37(3)(a) meant that a license was automatically granted but instead it actually says a “license under this section shall not be required”. Unfortunately the Regulations in question here say at Section 7(2)(a) that it must be under a license. So bypassing the license requirements doesn’t get us a free pass. However, all is not lost, perhaps we can somehow get a license?

What is a performance?

Let’s focus on Section 37(2)(e) there and with the post-amble:

Any performance recorded (by whatever means) with a view to its use in a broadcast or such a service or in a film intended for public exhibition; and a child shall be treated for the purposes of this section as taking part in a performance if he takes the place of a performer in any rehearsal or in any preparation for the recording of the performance.

Clearly this part isn’t talking about only broadcast performances under the Broadcasting Act 1990 as it would then have a specifier like sub-section 2(c) does. Any performance recorded by any means. Indeed the child doesn’t even have to be recorded as the post-amble tells us it still counts so long as they were involved in any preparation or any rehearsal.

OK so what now, can we get leave?

It seems that – provided you’re rich enough to defend a lawsuit – that you can get as much time off school as any child ever had to be in a performance. You simply need to tell the school that it’s for a performance under Section 37(2)(e) of the Children and Young Persons Act 1963. When they deny you then you have to wave the equal application of the law at them – there appears to be no provision in law for saying that your camera-phone movie doesn’t qualify as a performance but Warner’s latest movie-with-a-child-star does. You should then be granted a license equal in scope to that of any other performer. Don’t worry, as long as your child is in “any rehearsal” then they count as having been in the performance. You may have to broadcast that performance on YouTube or Vimeo or show it in public to meet the legal requirements though but to be honest the legislation doesn’t appear to address the problem of child stars whose movies get dropped before publication; seems you have an out on that one too.

Schooling is only a potential part of education

This may seem like the idiotic ramblings of a klutz, but the point I think we can take from this is that it’s silly to allow a kid time off school to be part of a movie, or even just to be in a rehearsal, yet not allow time off for family holidays.

Ultimately it’s a parents’ responsibility to ensure that their child is properly educated as enshrined in Section 7 of the Education Act 1996. Whether that’s in school or otherwise. That otherwise might be at home, in a pool at Butlins or wherever and the state – and schools – need to give in to that realisation and acknowledge that schools are there to offer up support to families to aid in education. Schooling is only a potential part of education; even for the schooled child, school is not education itself.