Children’s Hearings

This page is for parents whose children may have been referred to the Children’s Reporter where non-attendance has become an issue in the period prior to receiving formal consent for their withdrawal from school. 
 
Please also see our Withdrawal consent (NOT deregistration!) page for more detailed information on the process for withdrawing pupils for home education from state schools in Scotland, including the argument of ‘reasonable excuse’ for parental failure to secure regular attendance.
 
Although our advice is to maintain attendance during the waiting period, in some cases this proves difficult due to distress caused, for example, by bullying, severe anxiety or unmet ASNs. We recommend seeking medical certification to cover such absence wherever possible, but we know that GPs do not routinely provide such certification (rightly recognising that parents are responsible for determining their children’s fitness to attend) and a family may become involved with the Children’s Hearings system due to delays in processing withdrawal consent and often-inappropriate referral. 
 
Parents may find the following information helpful when navigating the hearings system as section 6(2) of the Children’s hearings training resource manual: volume 1 (dated April 2013) makes specific reference to home education.  
 
Section 67 Grounds

In order to reach a decision on whether or not the child requires a compulsory supervision order, one of the prime considerations by the reporter is which one or more of the section 67 grounds most appropriately reflect the principal concerns about the child’s welfare.

Section 67 of the Children’s Hearings (Scotland) Act 2011 notes all the different grounds at least one of which must apply before a child can be referred to a hearing.

Scrolling through the extensive list of grounds, we arrive at:
(o) The child has failed without reasonable excuse to attend school regularly
 

The child must be of school age. Reasonable excuses are defined in section 42 of the Education (Scotland) Act 1980 and refer to difficulties with travel arrangements, health problems or special circumstances acceptable to the education authority or a court. Exclusion due to a child’s disruptive behaviour does not constitute a reasonable excuse for not attending school. If the child is being appropriately educated at home however this is considered to be a reasonable excuse. (s 67(2)(o))  [our bold]

For further information about Scottish Children’s Hearings and role of the Reporter, please refer to the SCRA website. 

Case study – home education
By way of example, one of our members, Mrs C, was the subject of a referral to the Reporter during the waiting time for consent to withdraw her children after an assault by a school staff member and the council’s insistence on sharing data with multiple agencies as a condition of consent.
 
Although the matter did not proceed to a full hearing, it caused significant distress to the family. They subsequently made a formal complaint to the council, which ultimately progressed to the SPSO, and their plight was reported in the national media.
 
Mrs C has kindly allowed us to share the outcome of the council’s investigation into its officers’ conduct which resulted in unwarranted referral to the children’s reporter:
Investigation Findings
 
You felt that the Integration and Inclusion Manager should not have contacted other agencies without consent. In an effort to expedite matters quickly (within the 6 weeks), he wrote to you outlining the process and which agencies would be contacted. His letter stated ‘To expedite matters we will wait three working days from the top of this letter before we contact any other services’. This can be described as gaining ‘assumed consent’ and it was therefore not appropriate. ‘Informed consent’ should have been sought and gained before proceeding.
 
I recognise that the aim of the Council’s procedure seeks to demonstrate genuine interests in the protection, safety and well-being of children who are home educated. It is unquestionable, however, that from the expected level of engagement that there would need to be between the Council and other statutory agencies, it should indeed have been sufficient for any information and feedback, which will still be required to have the necessary qualities to be legitimate, proportionate and fair for the Council to rely upon, to re-assure the Council and others about whether the children were safe and well while being home educated, without the need for these current checks to be carried out, as set out in the procedure in place.
 
With regard to your concern about the implication that the Council’s decision to proceed and contact other statutory agencies, without your prior informed consent, for checks on any concerns that they may have about your children, I find that you are justified in this aspect of your complaint. In relation to this specific point of complaint about the absolute decision by the Council to withhold consent from parents to home educate their children, if the parents do not give consent to the Council for undertaking their checks with statutory agencies, I find that there is nothing in the national guidance or the relevant legislation that confers either a duty or a power to support the Council’s procedure and its decision in this respect.
The SPSO subsequently upheld Mrs C’s complaint, finding that:
The referral to the Reporter resulted in confidential information about your family being shared between a number of agencies (some of which was wrongly delivered and opened by an unknown third party who had nothing to do with your family).
 
Your family was scrutinised for several months and your children’s names added to the Vulnerable Persons Database. The intervention of the Children’s Reporter effectively put on hold the application to home educate, while social work carried out an assessment. It is worth mentioning here that no grounds for action were established, and the social work assessment was very positive about the home schooling <sic> environment.
 
I do not think the Council have been entirely straightforward in their response to my enquiry; You have expressed a view that Mr S “colluded” with the Reporter, Mrs A, and my understanding of your complaint is that you feel the Council’s actions were a direct consequence of you having made an allegation of assault against the Playground Assistant.
 
I have found no evidence of collusion during the course of my investigation. Nevertheless, I do consider the Council’s referral to the Children’s Reporter (or at least their involvement in the referral to the Reporter) was unreasonable in the sense that it appears to have been made (or supported) even in the knowledge that you did have a legitimate reason for the children not attending school. Taking all of this into account, I uphold this complaint.