QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
London WC2A 2LL
B e f o r e :
|THE QUEEN ON THE APPLICATION OF DEBRA G||(CLAIMANT)|
|LONDON BOROUGH OF ISLINGTON||(DEFENDANT)|
Smith Bernal Wordwave Limited
190 Fleet Street London EC4A 2AG
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(Official Shorthand Writers to the Court)
MR J AUBURN (instructed by London Borough of Islington, Legal Services) appeared on behalf of the DEFENDANT
Crown Copyright ©
1. Where a local education authority seeks and obtains an education supervision order pursuant to section 36 and Schedule 3 of the Children Act 1989, is it necessarily and by virtue of having so sought an education supervision order, an abuse of process for that authority later to prosecute the child's parent under section 444(1A) of the Education Act 1996?
2. Was the crown court right to find that there was no abuse of process in the matter in which the Crown proceeded in this appeal before it?
"If a child of compulsory school age who is a registered pupil at a school fails to attend regularly at the school, his parent is guilty of an offence.
(1A) If in the circumstances mentioned in subsection (1) the parent knows that his child is failing to attend regularly at the school and fails without reasonable justification to cause him to do so, he is guilty of an offence.
(8) A person is guilty of an offence under [subsection (1)] is liable on summary conviction to a fine not exceeding level 3 on the standard scale.
(8A) A person guilty of an offence under subsection (1A) is liable on summary conviction-
(a) to a fine not exceeding level 4 on the standard scale, or
(b) to imprisonment for a term not exceeding three months, or both."
Section 447 of the 1996 Act states in part:
"(1) Before instituting proceedings for an offence under section 443 or 444, a local education authority shall consider whether it would be appropriate (instead of or as well as instituting the proceedings) to apply for an eduction supervision order with respect to the child."
Section 444(1A) was inserted in the 1996 Act by the Criminal Justice and Court Service Act 2000.
"(1) On the application of any local education authority, the court may make an order putting the child with respect to whom the application is made under the supervision of a designated local education authority."
There is further detailed provision in schedule 3 to the 1989 Act. By paragraph 12(1) the supervising officer is given duties to:
(a) advise, assist, befriend, and give direction to-
(i) the supervised child; and
(ii) his parents;
in such a way as will, in the opinion of the supervisor, secure that he is properly educated."
Before giving any directions, the supervisor is under a duty to ascertain the wishes and feelings of the child and his parents. By paragraph 13(1):
"Where an education supervision is in force with respect to a child, the duties of the child's parents [under section 7 and 444 of the Education Act 1996 (duties to secure education of children and] to secure regular attendance of registered pupils) shall be superseded by their duty to comply with any directions in force under the education supervision order."
"While the education supervision order remains in force, the following provisions shall not apply with respect to the child-
(i) [section 437] of that Act (school attendance order);
(ii) [section 9 of that Act] (pupils to be educated in accordance with wishes of their parents);
(iii) [sections 411 and 423 of that Act (parental preference and appeals against admission decisions)."
Paragraph 14(2) provides that:
"Any failure to comply with a direction given by the supervisor under the education supervision order shall be disregarded if it would not have been reasonably practicable to comply with it without failing to comply with a direction given under the other order."
Paragraph 16 provides for information to be given to the supervisor and paragraph 18 deals with offences. It states:
"(1) If a parent of a child with respect to whom an education supervision order is in forcer persistently fails to comply with a direction given under the order he shall be guilty of an offence.
(2) It shall be a defence for any person charged with such an offence to prove that-
(a) he took all reasonable steps to ensure that the direction was complied with;
(b) the direction was unreasonable; or
(c) he had complied with-
(i) a requirement included in a supervision order made with respect to the child; or
(ii) directions given under such a requirement.
and that it was not reasonably practicable to comply both with the direction and with the requirement or directions mentioned in this paragraph.
(3) A person guilty of an offence under this paragraph shall be liable on summary conviction to a fine not exceeding level 3 on the standard scale."
Paragraph 19 makes provision for the local education authority to notify the local authority in the case of persistent failure to comply with any direction and obliges the local authority to investigate the circumstances of the child.
"We will be under a duty to consider applying for an Education Supervision Order in accordance with Children's Act before the Family Court and, or institute criminal proceedings in the Magistrates Court."
On 7 February 2002 Ms Cotterill produced a Pupil Non-Attendance Assessment. Under the heading "View of EWO and proposed course of action", the report reads:
"The non-attendance planning meeting will assess the support offered by the various parties and what further support can be put in place before court action is taken either in the Magistrates Court or the Family Proceedings Court."
"it was agreed that if a court route were required then a request to the Family Proceedings Court would be made for an Education Supervision Order."
Under the heading of "Plan of Action" it was again confirmed that:
"If Warren does not attend the Education Department will take action in the Family Proceedings Court. "
In accordance with that decision an application to the Family Proceedings Court was made on 29 May 2002. There was no reference to proceedings in the Magistrates Court. It is stated in paragraph 10(4) of the case stated that there was no intention to do so.
"The question which is rather more interesting, and upon which the appellant relies is: was it unfair for this appellant to do what the local education authority did? If so, ought I to stay the proceedings?"
Abuse of Process
The matter will, therefore, be remitted back to the Inner London Crown Court for further consideration. Any applications?