Withdrawal consent (NOT deregistration!)

Having seen some families in Scotland come to grief as the result of relying on generic information published by ‘UK’ home education (or <shudder> ‘homeschooling’) websites, we must first emphasise that the law differs across the constituent nations. In England, Wales and Northern Ireland, ‘deregistration’ from school is available upon written notification by the parent to the proprietor of a mainstream school, whether state or independent, and prior consent is only needed when removing a child from a special school. 

In Scotland, the term ‘deregistration’ should never be used as there are no equivalent pupil registration regulations that apply to enrolment in or removal from school, and a school-age child is only enrolled as a pupil once attendance commences. Although no consent is required to home educate per se, LA consent (not permission) is required for the formal withdrawal of state school pupils in most, but not all, cases.

Our advice has always been to maintain attendance until the withdrawal consent is processed, which should take no longer than the six weeks set out in statutory guidance. Where children’s attendance has already broken down, or they are too ill or stressed to attend, we urge parents to notify the school of the reasons for absence and try to obtain medical certification to cover the interim period if at all possible. It is, of course, the parents’ responsibility in law to determine fitness to attend and schools should not exert pressure where they have been duly notified by parents.

Section 3.3 of the home education guidance states that, in the period following submission of the parental request

…the authority should take a reasonable approach to attendance procedures. In most cases it would be inappropriate to initiate or pursue attendance procedures in respect of a child awaiting consent to be withdrawn from school.

However, not all councils behave well and some individuals allow home-eduphobic personal prejudices to cloud their professional judgement. As our ‘Home Truths’ research illustrated, it is often both a postcode and postholder lottery for home educating families.

Given the prevalence of inaccurate and misleading information that is proffered to parents by schools and councils alike (despite the current guidance being in place for 12 years), it is worth noting that all registered teachers, which includes most education officials who deal with home education, are obliged by the GTCS Standards for Registration (Section 2.2.1) to ‘have an understanding of current, relevant legislation and guidance such the Standards in Scotland’s Schools etc Act (2000), Education (Additional Support for Learning) (Scotland) Act 2004, the Equality Act 2010 and GIRFEC’. Misinforming parents about the law and applicable statutory guidance is therefore in clear breach of these professional standards.

So let’s look at the law and, in particular, the concepts of unreasonably withholding consent on the part of the local authority and ‘reasonable excuse’ for parental failure to secure attendance that appear in Section 35(1) of the Education (Scotland) Act 1980.

Where a child of school age who has attended a public school on one or more occasions fails without reasonable excuse to attend regularly at the said school, then, unless the education authority have consented to the withdrawal of the child from the school (which consent shall not be unreasonably withheld), his parent shall be guilty of an offence against this section. [our bold]

As experienced home educators all know, no one requires permission to home educate per se, and the only consent required is for withdrawal from council schools (with several exceptions, mostly set out in guidance).

For consent to apply:

The child must be of school age (i.e. compulsory education age), which is attained at the date of commencement of the school session, usually mid-August, following his/her fifth birthday, although some parents opt to send their four-year-olds. We have covered issues around early entry in some detail here, noting that:

some four- and five-year-old P1 pupils may not have attained compulsory age, depending on the date of their fifth birthday, and can be withdrawn immediately.

The child must also have attended a public (i.e. council) school on one occasion or more. Reserving a place, commonly but inaccurately called ‘registration’, does not count. As long as the child does not set foot in a council school as a pupil (visits don’t count either), no consent is required. Parents who use independent schools are also exempt from seeking consent.

If the education authority considers there is no ‘reasonable excuse’ for a child’s non-attendance, it can, under Section 36, require an explanation from the parent.

It shall be the duty of the education authority if they consider that a parent has committed an offence against section 35 of this Act in respect of a child resident in their area, to serve a notice on the parent requiring him, within such time as may be specified in the notice (not being less than forty-eight hours or more than seven days from the service thereof) to appear (with or without the child) before the authority and explain the reason for the absence of the child from school.

Under Section 37(1)

if the authority are not satisfied that the parent is providing efficient education for him suitable to his age, ability and aptitude, it shall be the duty of the authority to serve a notice on the parent requiring him within such time as may be specified in the notice (not being less than seven or more than fourteen days from the service thereof) either—

(a) to appear (with or without the child) before the authority and give such information as the authority may require regarding the means, if any, he has adopted for providing education, or

(b )in the option of the parent, to give such information to the authority in writing.

‘Reasonable excuse’ for parental failure to secure attendance at school is covered in Section 42. This ‘defence’ might apply where:

    • the school is not within ‘walking distance’ and no transport has been made available;
    • the child is sick; or
    • there are other circumstances which in the opinion of the education authority or the court afford a reasonable excuse [our bold]

Some parents have successfully argued that the provision of suitable education ‘by other means’ (home education) constitutes a reasonable excuse, mostly in circumstances where they believe the council has unreasonably withheld consent for their child’s formal withdrawal.

Government guidance on home education, to which local authorities must have regard, sets out the expectations for councils and possible grounds for the refusal of consent. Parents are expected to submit an initial outline of their proposed home education provision (which need not be detailed or replicate the schooling model) before consent is granted, and they usually  send this with their initial request. No forms or meetings are required and the council should base its ‘satisfaction’ or otherwise on the outline of provision, with reference to the suggested characteristics set out in statutory guidance. Local policy should reflect national guidance, which in turn must comply with (or be read down to comply with) overarching human rights, equality and data protection legislation.

Consent may also be delayed or withheld where the child is subject to compulsory measures of care or a supervision order, or in circumstances where there is a live child protection (not ‘wellbeing’) concern, referral or investigation. Despite claims to the contrary, the school has no locus in the withdrawal process, as head teachers are not qualified to evaluate parental provision that may not resemble school education. Moreover, local authority ‘fishing expeditions’ and non-consensual information sharing are prohibited by data protection and human rights legislation.

Professional ‘opinion’, which, in our experience, is often rooted in ignorance and pro-school prejudice, does not trump Section 30 of the 1980 Act, which affords parents an equal choice of council schooling or ‘other means’ to discharge their duty to educate. Despite the government’s rights-respecting rhetoric, children’s views are immaterial when it comes to the means by which they are provided with compulsory education, although, unlike the school system, most home educators are sensitive to, and respectful of, children’s wishes.

It should further be noted that a breakdown in attendance due to school-related stress does not constitute a valid ground for refusing consent for formal withdrawal and the process should be completed within the maximum timescale of six weeks. 

Please also see our Children’s Hearings page for clarification of grounds for referral, including non-attendance at school.