Prosecuted for not sending kids to school

We all love our kids and want the best for them, and not everyone believes that the school system is the most advantageous way to go – after all, many successful people have had little or no formal schooling.

But in NSW, it is against the law not to provide your kids with approved schooling, and parents can find themselves in court facing heavy fines for not complying.

What does the NSW law say?

Under section 22 of the Education Act in NSW, it the duty of a parent of a child of compulsory school-age to cause the child to:

• be enrolled at, and to attend, a government school or registered non-government school, or
• be registered for home schooling under Part 7 and to receive instruction in accordance with the conditions to which the registration is subject

Compulsory school-age is defined as a child who is or above the age of 6 years and below minimum school leaving age

All children must be enrolled at school until they have finished Year 10 and turned 17.

Students who have completed year 10 but are not yet 17 must either be in school (or home schooled), in approved education or training (such as TAFE), in full-time, paid employment, or a combination of work or training.

Failing to enrol your child or send them to school are offences that can be prosecuted by the Department of Education.

If a child is not receiving schooling, a compulsory schooling order can be made by a Magistrate in court.

Compulsory schooling orders

Compulsory schooling orders are not made in the Local Court, but the Children’s Court, where the proceedings are less formal.

In a situation where a child’s school attendance is not satisfactory, the Secretary of the Department of Education may apply to the Children’s Court for an order that:

• requires a parent of a child to ensure that the child receives compulsory schooling or,
• requires a child to engage

The nature of the particular order will depend on the circumstances of the case. For example, parents may be required to attend a conference, engage with staff from the Department of Education, attend drug or alcohol counselling and/or have their child medically assessed.

The order may also allow the Director-General to enrol the child in a government school if there is non-compliance.

If these measures fail to solve the problem, the matter may progress to a more serious form of prosecution.

What are the penalties?

The Director-General of the Department of Education and Communities is responsible for prosecuting parents who do not school their children.

Failing to enrol a child comes with maximum penalty is $2,750 for a first offence, and rises to $5,500 for a subsequent offence.

The maximum penalty for breaching a compulsory schooling order is $11,000.

Children over the age of 15 can face a maximum fine of $110 if they don’t comply with the order, unless they have a reasonable excuse.

The Magistrate has discretion to impose a community service order instead of a fine.

Legal Aid is available in limited circumstances for parents who are being prosecuted under the Education Act, provided that they pass a means test and also a merits test.

Are there any defences?

The defences to a charge under Section 23 of the Education Act for failing to send a child to school includes if the child was enrolled and attending a school in another jurisdiction, enrolled in distance education, participating in an approved alternative education program, or attending a program established by the Minister.

It is also includes cases where the child has a certificate of exemption, has written permission to enrol in certain courses, or could not attend due to a medical condition, accident, or unforeseen event.

Additionally, if the child’s absence was under specific circumstances such as suspension, expulsion, or a public health direction, or if the parent reasonably believed the child was attending a valid school, these may also be defences.

Should parents or children be prosecuted for not attending school?

Education is a basic human right – and for those aged between 6 and 17, it is generally mandatory.

Legislation has been introduced in the UK which says that even taking kids out of school for a few days can see parents hit with a fine.

One couple voiced their disbelief after they were issued a £120 fine for pulling their child out of school for six days to attend a memorial service for his grandfather in the US.

The pair now face a £1,000 fine for refusing to pay the initial £120.

Laws in Australia are not as strict – and Australian children miss more school than those in most other developed countries.

And it’s not just children from lower-income families – kids from private schools are frequently withdrawn from class for family vacations, much to the disappointment of the Department of Education.

The average NSW public school students miss nearly three weeks of school per year, but are prosecutions and fines the way to go in order to ensure parents comply and send their kids to school?