Legal bid to change the way “school refusers” are treated

Boy sitting with head in hands and words: Legal bid to change the way “school refusers” and their families are treated

We’re seeing increasing numbers of parents feeling forced to crowdfund to help secure justice for special educational needs educational issues that should never arise. Several LAs have been taken to the High Court by parents over cuts to SEND, while another group is currently seeking to Judicially Review the Government over lack of SEND funding.

Now another campaign is raising money to see if they can legally challenge the Department for Education over families being punished for their child “refusing” to go to school. If you’ve not had a child refuse to go to school, you may well think, well, just threaten them with losing a privilege, or (even worse) drag them to school. However, anyone, me included, who has faced the situation of their child feeling unable to go to school, can understand how difficult, if not impossible, it is to force a distressed child or teenager to get out of bed, get ready and leave the house, if school represents anxiety and upset. It’s totally different from just fancying a day off.

There are a growing number of children and young people who struggle with school attendance. This may be due to unmet SEND, bullying, trauma, physical illness or severe anxiety. School attendance difficulties (commonly and controversially referred to as ‘school refusal’) are often poorly understood, are compounded by current challenges within the education system, and often have severe consequences for both child and family.

Beth Bodycote is co-founder of Not Fine in School, a support group for families with children who struggle with school attendance (controversially labelled ‘school refusers’) after her son went through many years of difficulty with ‘school refusal’ at the transition to secondary school. She’s leading the crowdjustice campaign and has written for us today all about it

Why are our children “not fine” in school? By Beth Bodycote

An increasing number of children are, perhaps unsurprisingly, struggling with school attendance. They are also being failed by a Government that places more emphasis on attendance and attainment than on mental health and wellbeing, despite lots of talk to the contrary.

The DfE has no idea of the true scale or evolution of this problem (other than authorised/unauthorised and persistent absence figures collected via the school census). Despite having 23 individual registration codes, school refusers can fall into any number of categories including Code I, illness, if school accept a parent’s explanation, or they provide medical evidence to endorse the absence, or Code O, ‘Absent from school without authorisation’.

Even if all 32,113 UK schools were consulted, you would be hard pushed to obtain an accurate figure, since there is no consistent definition of what constitutes ‘school refusal’, and no established way of measuring the scale of the problem. For these reasons we have launched a Crowdfunding campaign to enable us to challenge the Department for Education. 

Beth Bodycote, Not Fine in School
Beth Bodycote, Not Fine in School

The phenomenon of ‘school refusal’ was clinically identified as a distinct form of truancy with a ‘neurotic' basis in 1932. Almost 90 years later, we still don’t have agreed understanding or national guidance to support affected children. Worse still, the DfE ‘attendance = attainment’ narrative, set by Charlie Taylor’s Improving Attendance in Schools report (2012) continues to drive a combative relationship between schools, LAs and parents. Ministry of Justice records for 2017 show almost 18,380 parents and carers were prosecuted in England and Wales for failing to ensure their child’s regular attendance at school.

Bad policies from flawed research

The Taylor report is a revelation for anyone who believes our Government is democratic and that open consultation exists to ensure the subjective views of one individual (in this case a DfE adviser) are not pushed through into legislation. In fact, Taylor’s 12-page report is the result of discussions with only 13 schools. No parents or pupils were involved and there was no open consultation. It features some shocking observations with no evidence to substantiate the claims. Here are just a few:

“ These children are more likely to come from families who do not value education”

“Poor attendance is often a sign that there are some more serious issues going on in the child’s home”

“It is the parents who allow their child to have Monday off because the family is tired after a weekend away, who keep their child back from school because they are waiting for a delivery, or for whom a doctor’s appointment in the afternoon becomes a reason for taking the whole day off who need to be challenged early”

“The process of taking a parent to court is cumbersome and expensive”

“parents could exploit the system by first pleading not guilty, then failing to attend court when they were summoned and finally not paying any fine”

“EWOs commented that within certain groups of parents the word has spread that prosecution for bad attendance is a muddled process in which there is a good chance of getting off without sanction”

Improving Attendance in Schools, Charlie Taylor 2012

Then Education Secretary, Michael Gove, sanctioned new legislation and policies on the back of this report. The threshold for persistent absence was changed from 85% to 90%, the target for attendance was set at 97%, and the process for fining and prosecuting parents was simplified.

Seven years later the ‘attendance = attainment’ narrative continues to be driven down through local authorities to schools, on the assumption that parents whose children are not attending school at least 90% of the time either don’t care, or don’t realise that to achieve results a child has to attend school. Nothing could be further from the truth for many families, who are being forced to give up work, fight their way through a system in crisis (correction: systems in crises) whilst desperately worried about their child’s mental health and emotional wellbeing.

Unbelievably, they then get blamed and threatened with fines and prosecution for their child’s non-attendance, even though evidence shows this will not resolve any of the difficulties. There is no empathy and no recognition of the challenges and obstacles that now exist, from the (now widely acknowledged) failings in the SEND reforms, to school budget cuts which have decimated TA and LSA numbers, to the crisis that is CAMHS with prolonged waits for assessments and therapy. 

The fightback begins

Not Fine In School was set up in November 2017 to support and empower these families. Although my younger son was a reluctant school attender, my involvement with this issue really began 10 years ago when my oldest son went from almost 100% attendance at primary school to full-on ‘school refusal’ at the transition to secondary school. This was followed by a six-year battle with CAMHS to understand what had gone wrong and get the help he needed. Happily he has now almost reached the final year of a university degree and is doing brilliantly! I was determined to find ways to help other families going through what we did. Our experiences led me to complete a BA in Education Studies as a mature student, and currently I am conducting PhD research exploring parent experiences of school attendance difficulties.

Not Fine in School now receives up to 50 new member requests a day to our closed Facebook group for parents, where we offer peer support and information. We also offer information about school attendance on our website. Recently, we began working alongside another group, Square Peg, which has been set up to effect national change. Together we have launched a petition calling for a new registration ‘holding’ code to begin to evidence the scale of the problem, provide schools with a legitimate registration code for children unable to attend, and alleviate the threat of parental prosecution. 

Our latest venture is the result of a Tweet from Barrister, Steve Broach in March 2019. He was looking for SEND families who would be interested in a strategic challenge to the approach to school attendance. Steve put us in touch with Polly Sweeney at Irwin Mitchell LLP and we discussed the potential legal grounds for challenge, potentially around a failing in duty of care (the DfE can’t identify these children) and whether the current 23 registration codes discriminate against those with school attendance difficulties and are thus unfit for purpose. Once we raise the target amount of £5,000 we can instruct our lawyers to investigate whether there are grounds to bring a legal challenge against the Secretary of State for Education for his failure to ensure that school attendance laws meet the needs of this vulnerable group of learners.

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Tania Tirraoro

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