09.3385 Do the rules preventing removal of a child’s name from the roll of a special school somehow prevent a parent from removing their child from the school?
Noddy No-nonsense Guide
Authors: David Wolfe KC, Leon Glenister
24 Feb 2025
A: SenseCheck
- 0 Yes
- 1 No
- 0 Other
- 24 Feb 2025
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No
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Complex
No. The rules themselves do not - School Attendance (Pupil Registration) (England) Regulations 2024 r9(42) prevents the proprietor of a school being attended by a pupil under LA arrangements (likely to mean an EHCP) from removing their name from the school roll without the consent of the LA or the Secretary of State. That allows the LA to ensure that the school place is kept open until it is satisfied that the parent is providing suitable alternative education. But it does not have the effect of preventing the parent from removing the child from the school in the first place (as any other parent can do in relation to any other child).
However, if a child of compulsory school age who is a registered pupil at a school fails to attend regularly, the parent is guilty of a criminal offence: EA 1996 s444. That is subject to statutory defences set out within that section (such as there being a “reasonable justification”) and there is no failure to attend where there is an “unavoidable cause”.
Where the parent promptly arranged suitable alternative education (including potentially elective home education), it could be argued (depending on the exact facts) that either a statutory defence applies, a prosecution would not be in the public interest, or may possibly be an 'abuse of process'. In addition, a decision of the LA not to remove the child’s name from the register would be amenable to a judicial review challenge of its legality.
(Be aware though that the Children’s Wellbeing Bill 2025 is (at the time of drafting) proposing changes which would allow an LA to prevent a parent from removing their child from a special school to electively home educate even where it agreed that the elective home education proposed would be suitable, but on the basis that it thought school attendance was nonetheless in the child’s ‘best interests’. If enacted that would be a significant change to one of the fundamental’s of education law for over 150 years, namely that it is enough for a child to provide suitable education, even if the state might think other education would be preferable.)
[Answer revised based on feedback from DfE SEND Policy team 24/04/25]
24 Feb 2025
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