On Wednesday 18 March 2020 Gavin Williamson, the Secretary of State for Education, announced the 'closure' of all schools in England. Following a week of speculation, Boris Johnson announced yesterday, on 10 May 2020, that primary schools will open “at the earliest” on 1 June as part of his “conditional plan” to reopen society. If the government’s conditions are met, this reopening of schools will begin with the youngest pupils in Reception and Year 1, plus year 6.

Update (12/05/2020): Further to the publication of this article, the Government has released new guidance for education and childcare settings in preparation for reopening. It has been confirmed that whilst the Government has strongly encourages children in eligible year groups to return to school unless they are self-isolating or shielding, parents will not be fined for non-attendance at this time.

Many parents, however, are justifiably concerned about sending their children back to school so soon, especially given that the youngest children are unlikely to be able to understand or follow the social distancing guidelines. This has understandably led to questions being raised by schools, parents and teachers as to whether parents could refuse to send their child to school even when they re-open.

What will happen if parents refuse to send their child back to school?

Sadly, this is something that there has not yet been guidance issued on and it is unclear whether or not schools should record and report absences in the usual way when schools begin their phased return next month.

In usual circumstances, a child can only miss school if they are too ill to attend or have advance permission from a headteacher. Parents can face fines of £60 if their children are absent from school with no good reason. This fine can then double to £120 if not paid within 21 days. If it is not paid after 28 days, parents could be prosecuted by the local authority.

Ministers have yet to make clear whether these rules would apply post-lockdown and it is unclear whether the potential return to school on 1 June would be optional or compulsory.

The general secretaries of 10 teacher trade unions across the UK and Ireland have written to the education ministers in each of their jurisdictions urging “significant caution in any consideration of reopening schools".

The law on fining a parent for not sending their child to school

The power to issue a fine comes from Section 444(1) and 444(1A) of the Education Act 1996. On 28 April 2020, the Secretary of State for Education issued a notice to disapply these sections of the Education Act.

This notice temporarily disapplies offences relating to the failure of parents to secure regular attendance at school of a registered pupil. While parents can, therefore, be sure that they will not be prosecuted or receive a criminal conviction by not sending their children to school, it is important to note that the notice only applies from 1 May 2020 to 31 May 2020.

Even though the disapplication notice expires on 31 May 2020, Amanda Spielman, head of Ofsted, told Sky News that it was "extraordinarily unlikely" ministers would push fines. Even if the disapplication notice is not extended, it appears likely that a pragmatic approach will be taken to this issue.

Before giving a direction under the Coronavirus Act 2020, the Secretary of State must have regard to any advice from the Chief Medical Officer or one of the Deputy Chief Medical Officers of the Department of Health and Social Care relating to the incidence or transmission of coronavirus. In addition, they must be satisfied that giving the direction is a necessary and proportionate action. These tests will, of course, have to be met in order for a new notice to be issued for the period following 31 May 2020 if the notice is to be reviewed.

Paul Whiteman, general secretary of the National Association of Headteachers (NAHT), said it is up to the Government to instil confidence in parents that it is safe to take their children to school. "If parents don't have the confidence, it's not the job of the headteacher to make decisions about whether they should be fined or not," he told The Telegraph.

This is, however, an issue to which schools and academies will need to give careful consideration as the timetable for reopening of schools becomes clearer.

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