Failure to Send Child to School

Failure to Send Child to School

Disclaimer: This article is intended to provide a summary and general overview only. It is not intended to be, nor does it constitute, legal advice. You should seek legal advice from a barrister or solicitor working in the area of education law and/or education discrimination before acting or relying on any of its content.

According to Section 23 of the Education Act 1990 (NSW), it is an offence for a parent to not enrol his/her child in school or to not send an enrolled child to school if the child is of compulsory school-age. Section 21B defines compulsory school-age as being between six and either seventeen or the age that the child is when he/she completes the Year 10 of high school, provided that the child participates full-time, paid work or in other approved education or training until reaching the age of 17. The maximum penalty is 25 penalty units ($2,750 fine) for a first time offence, 50 penalty units ($5,500 fine) for subsequent offences and 100 penalty units ($11,000 fine) in the case of a parent who has had a compulsory schooling order placed against them (see below).

Defences to the offence of failing to send kids to school

  • The child was enrolled at and attended a school in another State or Territory;

  • The child was enrolled at a government school or registered non-government school and was participating in distance education;

  • The child was participating in an alternative education program that is approved by the Education Minister for children that cannot participate in formal education for social, cultural or other reasons;

  • The child was participating in a program established by the Education Minister under s 35 of the Education Act;

  • The child had a valid certificate of exemption under s 25 of the Education Act;

  • The child was attending a school that the parent reasonably thought was a government school or a registered non-government school;

  • The child was prevented from attending school because of a medical condition or unforeseen accident and notice (along with any required medical certificate) is given to the school within seven days;

  • The child was suspended from a government school;

  • The child was living independently of his or her parents.

Compulsory School Order

Under s 22D of the Education Act 1990 (NSW), the Children’s Court has the authority to make a compulsory schooling order where one is applied for by the Director-General. These orders may act on either the parents or the children themselves (if they are at least 12 years old, living independently or the Children’s Court is satisfied that they will not obey their parents’ instructions) to require that the children receive compulsory schooling. Furthermore, a compulsory schooling order may also be used to compel a child who has completed Year 10 to participate in an approved form of education or training as per s 21B of the Act. Compulsory schooling orders remain effective until the time specified or until the child is no longer of compulsory schooling age if that occurs first. Failure to comply with a compulsory schooling order carries a maximum penalty of 100 penalty units ($11,000 fine) for a parent and 1 penalty unit for a child of at least 15 years of age. Furthermore, the order may also authorise the Director-General to enrol the child in a government school where there is non-compliance.

The use of these powers by government should be used as a means of last resort. Should you have concerns that these powers have been invoked too hastily, it may be in your interest to speak with a lawyer.

By Sebastian De Brennan, Barrister,

© 2017 Sebastian De Brennan. Barrister at Law