Compulsory education age in Scotland is attained on the commencement date of the school session (usually in mid-August) following a child’s fifth birthday. This has not changed since 1980, yet we regularly receive requests for assistance from parents of under-fives who have been misled by professionals seeking to pressurise them into enrolling their children in school before they reach statutory age.
[NOTE: reserving a school place does not mean it needs to be taken up, and a school-age child only becomes a pupil once s/he has attended on one occasion or more.]
Since a few of these self-styled ‘experts’ are evidently also claiming that parents need ‘permission’ to remove their toddlers from nursery and/or that they must enrol them in school at four or apply to defer entry for a year, we thought we should reiterate our previous warning to ignore such patently wrong advice. There are no legal sanctions for declining a voluntary service and any claims to the contrary should always be requested in writing to enable independent fact-checking.
For the avoidance of doubt, parents can not only remove their child from nursery at any time, for any reason, but they are also free to withdraw a child from primary school who has not yet attained compulsory age (with no need for council consent).
One parent commented:
When I dealt with [my] council, they claimed that they had a legal duty to provide a place even before 5 and that meant that I had a legal duty to defer until the following year which, as you know, is nonsense. The law clearly states that where the child hasn’t attained 5 years then they are deemed not to be of age and the duty of the parent to provide an education by school or other means doesn’t kick in. It’s the nursery funding that was the issue, but [my child] was removed from there anyway.
To save reinventing the wheel, we would refer readers to an article we wrote on this subject back in 2014: Undue pressure to ‘register’ children under ‘school age’
We have also copied below the relevant sections of primary legislation to help teachers, health visitors and others ‘get it right’ for parents and children when it comes to the parameters of compulsory education age.
32 Dates for commencement of school attendance
(1) Subject to subsection (7) below, an education authority shall fix a date or dates (any such fixed date being hereinafter referred to as a “school commencement date”) for the commencement of attendance at primary schools in their area; and any such date may be either a calendar date or fixed by reference to the occurrence of a particular annual event.
(2) Subject to subsection (7) below, an education authority may, under subsection (1) above—
(a) fix different school commencement dates for different primary schools in their area;
(b) at any time fix a different school commencement date in substitution for any date previously fixed by them under the said subsection (1).
(3) A child who does not attain the age of five years on a school commencement date shall, for the purposes of section 31 of this Act, be deemed not to have attained that age until the school commencement date next following the fifth anniversary of his birth.
(4) Subject to subsection (7) below, an education authority shall, in respect of each school commencement date fixed by them under subsection (1) above and applicable to a public primary school, fix the latest following date (any such fixed date being hereinafter referred to as an “appropriate latest date”) on or before which a child must attain the age of five years in order to come within the category of children whom the authority consider of sufficient age to commence attendance at a public primary school at that school commencement date.
(5) Subject to subsection (7) below, an education authority may, under subsection (4) above—
(a) where a school commencement date is applicable to more than one public primary school in their area, fix in respect of that school commencement date different appropriate latest dates for those different schools;
(b) at any time fix a different appropriate latest date in substitution for any date previously fixed by them under the said subsection (4).
(6) The education authority shall carry out their duty under section 1 of this Act as if a child who is under school age on a school commencement date, but who will attain the age of five years on or before the next following appropriate latest date fixed in respect of the school commencement date, has attained the age of five years on the school commencement date; but nothing in this subsection or in subsection (4) above shall, in respect of a child under school age,—
(a) impose any duty on his parent; or
(b) require an education authority to take any action under section 36 or 37 of this Act.
(7) The period between an appropriate latest date applicable to a school and the next following school commencement date applicable to that school (whether or not the school commencement date is that in respect of which the appropriate latest date is fixed) shall not, except with the approval of the Secretary of State on an application to him by the education authority, exceed six months by more than seven days:
Provided that no such application shall be made, nor approval given, in respect of any such period which commences after 31st December 1979.
(8) In relation to any child, “school commencement date”—
(a) in subsection (3) above—
(i) means, where the child is a pupil in attendance at a primary school, a school commencement date of that school;
(ii) in any other case has the same meaning as in subsection (6) above;
(b) in subsection (6) above means a school commencement date of the public primary school to which a child of his religious denomination and from his place of residence would normally be admitted.
(9) In this section, “primary school” does not include a nursery school or a nursery class.
Section 1 of the School Education (Amendment) (Scotland) Act 2002 offers further clarification with regard to placing requests for children under school age:
1 Placing requests: children under school age
(1) In section 28A of the Education (Scotland) Act 1980 (c. 44) (duty of education authority to comply with placing requests)—
(a) in subsection (1)—
(i) for “child of school age” there shall be substituted “qualifying child”; and
(ii) for “and (3A)” there shall be substituted “, (3A) and (3F)”;
(b) after subsection (3D) there shall be inserted—
“(3F) Where an education authority are carrying out the duty imposed on them by subsection (1) above in respect of a child such as is mentioned in subsection (6)(c) below, they shall place the child in the specified school—
(a) on the date (being the date fixed for that school under section 32(1) and (2) of this Act) next following the making of the placing request; or
(b) where that date has passed, as soon after that date as is reasonably practicable.”; and
(c) after subsection (5) there shall be added—
“(6) In this section—
“primary school” does not include a nursery school or a nursery class; and
“qualifying child” means—
(a) a child of school age;
(b) a child who has commenced attendance at a primary school but is not of school age; or
(c) a child who is not of school age and who, on the date (being the date fixed under subsections (1) and (2) of section 32 of this Act for the purposes of subsection (6) of that section) next following the making of the request under subsection (1) above, will be eligible under this Act to commence attendance at a primary school.”
If the above legalese is incomprehensible, these Explanatory Notes might help:
Section 1 – Placing requests: children under school age
5. The statutory placing request regime contained in sections 28A to 28G of the 1980 Act enables a person to make a written request to an education authority to place his or her child in a particular school. Section 31 of the 1980 Act defines “school age” as being 5 years of age and over, but under 16 years of age. Section 32 of the 1980 Act also provides that children who are not 5 years of age by the “school commencement date” (as defined in that section), but whose 5th birthday falls before the next “appropriate latest date” (also as defined in that section), can be treated as if they were 5 years of age and be admitted to school on the commencement date before their 5th birthday. In practice, this means that the annual August intake includes children from 4 years and 6 months to 5 years and 11 months old.