Good Practice Guidance on Authorising Absence in Educational Establishments Without Parental Consent

1. Purpose

The purpose of this guidance is to support education establishments should they be asked to make a decision about releasing students from education to attend appointments without the knowledge and consent of their parents / carers.

The types of appointments may include, but are not limited, to:

• Medical;
• Housing;
• Mental Health;
• Drug or Alcohol Support;
• Grief and Loss.

The guidance is developed to safeguard children and young people by supporting professionals in education to work with the young person and other professionals to ensure young people have support to attend appointments. It encourages the child's voice to be at the centre of the process, ensuring the wishes and feelings of the child are respected and confidentiality is maintained where possible.

It is expected that this guidance will be used in exceptional circumstances where a child / young person requests to attend an appointment during educational time but does not want their parent / carer to know.

This policy adopts the Department of Education’s definition [1] of a ‘parent’ to include:

• All biological parents, whether they are married or not;
• Any person who, although not a biological parent, has parental responsibility for a child or young person - this could be an adoptive parent, a step-parent, guardian or other relative;
• Any person who, although not a biological parent and does not have parental responsibility, has care of a child or young person.

A person typically has care of a child or young person if they are the person with whom the child lives, either full or part time and who looks after the child, irrespective of what their biological or legal relationship is with the child.

[1] Section 576 of the Education Act 1996

2. Principles

Where possible the appointment should be facilitated within the educational setting with a safe space being given for the appointment to occur. This should reduce the number of incidences where a setting has to consider authorising absence without parental consent.

Professionals should strive to work in partnership with children, young people and their parents /carer(s) and encourage good communication. Understanding why the child / young person does not want their parent / carer to be made aware may be the first step to promoting the inclusion of the parent / carer in the decision making process with the child / young person's consent.

Professional curiosity is the capacity and skill for proactive questioning and challenge rather than making assumptions. When working with children or young people it is important to explore what you are worried about in an open and honest way and come to an agreement together about what needs to happen. Professional curiosity is much more likely if professionals:

• Are given good quality training to help them develop;
• Have access to good management, support and supervision;
• Have time to review the lived experience of children and young people and undertake regular assessment to ensure new information and developments are reflected;
• The capacity to continue to work with young people and find out what is happening.

If the decision is complex and / or difficult then seek advice from appropriate professionals. Most agencies have safeguarding leads or legal advisors who can be approached regarding advice and support with decision making between an educational setting and a health or social care provider / service.

3. A Child's Legal Rights

Lord Scarman's comments on his judgement of the Gillick case in the house of Lords (Gillick v West Norfolk, 1985) were that; ''parental right yields to the child's right to make his own decisions when he reaches a sufficient understanding and intelligence to be capable of making up his own mind on the matter requiring decision."

If a professional has assessed the child / young person as having the capacity (over 16 years) or competency (Fraser or Gillick 15 years and under – but rarely under the age of 13) to make an informed decision to give consent and the young person does not wish to disclose the matter to their parent/carer(s), professionals have a duty to maintain the young person's confidentiality. However, safeguarding and welfare of the young person must always remain the priority and will override the need for confidentiality. (For example, a young person seeking contraceptive advice who reveals information which might lead the professional to be concerned that they are at risk of exploitation; must be advised that professional disclosure is necessary to ensure their safety). (See Section 7, Competency & Capacity).

The following quotes are from the United Nations Convention on the Rights for Every Child (1989):

"Article 3 The best interests of the child must be a top priority in all decisions and actions that affect children.

Article 5 Governments must respect the rights and responsibilities of parents and carers to provide guidance and direction to their child as they grow up, so that they fully enjoy their rights. This must be done in a way that recognises the child's increasing capacity to make their own choices.

Article 12 Every child has the right to express their views, feelings and wishes in all matters affecting them, and to have their views considered and taken seriously.

Article 13 (freedom of expression) Every child must be free to express their thoughts and opinions and to access all kinds of information, as long as it is within the law.

Article 16 Every child has the right to privacy."

4. Education Settings Attendance Policies

It is recommended that education settings review their attendance policy and induction /enrolment procedures to ensure that pupils and parent /carer(s) know that in some situations decisions may be made without parental consent. Settings should have robust, consistent procedures on what information is given by school staff to parent /carer(s) in person /by telephone /email etc. about their child's attendance on any given day.

Legally, education settings are required to provide parents with an annual report of their child's progress. The law states that this report must contain the pupil's attendance record (Schedule 1, Regulation 6(4), Education (Pupil Information) (England) Regulations 2005) for maintained schools and Paragraph 24(1) of Schedule 1 to the Education (Independent School Standards) (England) Regulations 2010 for Academies, Free and Independent Schools). As this is a statutory duty, under Data Protection Act it satisfies a condition for processing other than consent and as such can lawfully be shared without consent, even if the pupil objects.

The key to this issue is being transparent with the pupil. If a pupil requests authorisation for an appointment, they should be clearly told at that point that the absence will be recorded (whether authorised or not) on their attendance record and that the school has a legal obligation to share the attendance record with their parent/carer(s) either upon request or within the annual report. However the school should make a recommendation regarding the timing of the appointment to negate a recording of 'absent'. The information that should be recorded on the attendance records is:

• The date of the absence;
• Whether it was authorised or not;
• If authorised under what category.

It is at the discretion of the educational setting whether absences are authorised.  It is usual for the parent /carer(s) to seek medical appointments after the school day but this is not always possible.  The same principle would apply that school is likely to ask that appointments be after school has finished but the child /young person may not want or be able to facilitate that; certainly if they are not intending to inform their parents.  It is a matter for each school to determine whether they will authorise absences during the school day.

Schools are required to record two attendance sessions per day for each pupil: a morning session at the start of the day and an afternoon session, but not necessarily the start of the afternoon. The school's attendance policy will state when the register will be taken and at what time the register is then considered closed. A pupil attending a medical appointment after the morning session has closed but returning before the afternoon session starts will not have their attendance record affected if they were actually present at the time the register was open.

If the pupil has discussed with the school their reasons for wishing to attend a medical or other appointment without their parent/carer(s) knowledge or consent, this should not be divulged to the parent without the explicit consent of the pupil unless there is a real and presenting safeguarding risk that necessitates sharing the information without consent. If the school is unsure whether or not a matter is for Social Care they should call the Children's Services Customer Services Centre on 01522 782111 and seek advice from the Early Help Advisors before making a decision and record appropriately.

Settings will need to explain to the child/young person that they will need to produce legitimate evidence of the appointment in order for the setting to authorise the absence, this would be expected, in the main, to be at the same level as a parent would be asked to produce. The child/young person will continue to be encouraged to involve their parent/carer(s) at all times. If a child/young person subsequently decides to share the information with parent/carer(s) this should be clearly noted and dated on the individual's file.

When deciding whether to authorise an absence from school or an education establishment for a young person to attend an appointment without the knowledge/consent of the young person's parents or carers the setting may wish to consider the following aspects/questions:

• What is the nature of the appointment?
• Has there been liaison with the professional who deemed the child/young person to have capacity or be competent to have the appointment without parents/carers present? (This should be with consent of the child/young person);
• Has the child been encouraged to talk to their parents?
• How is the child going to get to the appointment?
• How far away is the appointment?
• If the appointment is sufficient distance away for them to need to use public transport does the child know where to go to get the bus/train?
• Do they have the necessary money to make the journey (both ways)?
• Is someone going with them or are they going alone?
• Is the pupil returning to school and if so at what time? (arrangements should be made for the pupil to call the school to update if the situation changes)

It is not unusual for a pupil to try to encourage a friend to attend an appointment with them for support in place of their family, so schools may receive requests for this. A school's policy should describe what stance a school will take on this matter. As a general rule this should not be granted as the friend is not attending a medical appointment of their own and recording it as such would be inaccurate.

Each individual circumstance will be very different and therefore professional judgment & curiosity is paramount in determining the decision to be made about authorising the absence.

5. Information Sharing

Knowing how and when to share information is not always straight forward, but it is important to get it right. Children and young people need to be assured that their confidentiality is respected where appropriate and to know and understand why it is being breached if that is the decision. In most cases professionals will only share information about them with their consent, but there may be circumstances where this will be overridden.

The Seven Golden Rules for information sharing:

1. Remember that the General Data Protection Regulation (GDPR), Data Protection Act 2018 and human rights law are not barriers to justified information sharing, but provide a framework to ensure that personal information about living individuals is shared appropriately;
2. Be open and honest with the individual (and/or their family where appropriate) from the outset about why, what, how and with whom information will, or could be shared, and seek their agreement, unless it is unsafe or inappropriate to do so;
3. Seek advice from other practitioners, or your information governance lead, if you are in any doubt about sharing the information concerned, without disclosing the identity of the individual where possible;
4. Where possible, share information with consent, and where possible, respect the wishes of those who do not consent to having their information shared. Under the GDPR and Data Protection Act 2018 you may share information without consent if, in your judgement, there is a lawful basis to do so, such as where safety may be at risk. You will need to base your judgement on the facts of the case. When you are sharing or requesting personal information from someone, be clear of the basis upon which you are doing so. Where you do not have consent, be mindful that an individual might not expect information to be shared;
5. Consider safety and well-being: base your information sharing decisions on considerations of the safety and well-being of the individual and others who may be affected by their actions;
6. Necessary, proportionate, relevant, adequate, accurate, timely and secure: ensure that the information you share is necessary for the purpose for which you are sharing it, is shared only with those individuals who need to have it, is accurate and up-to-date, is shared in a timely fashion, and is shared securely (see Section 2, Principles);
7. Keep a record of your decision and the reasons for it – whether it is to share information or not. If you decide to share, then record what you have shared, with whom and for what purpose.

Use appropriate agency or national guidance to make decisions regarding a decision to uphold or breach a child / young person's confidence (Information Sharing – Advice for Practitioners Providing Safeguarding Services to Children, Young People and Parents).

6. Early Help Assessment and Safeguarding Referral

The Early Help Assessment (EHA) process has been designed to help practitioners assess needs at an early stage and then work with the child / young person, their family and other practitioners and agencies to meet these needs. As such, it is designed for use when:

• You are worried about how well a child / young person is progressing;
• You might be worried about their health, development, welfare, behaviour, progress in learning or any other aspect of their wellbeing;
• A child / young person or their parent / carer raises a concern with you;
• The child's or young person's needs are unclear, or broader than your service can address alone;
• The child or young person would benefit from an assessment to help a practitioner understand their needs better.

If you have any of these concerns complete an EHA with the child and family. If on completion a need is identified that you are unable to address you will need to initiate a Team Around the Child (TAC). If you are unsure what action to take you may want to have a consultation with and Early Help Advisor, call Children's Services Customer Service Centre on 01522 782111.

If you believe a child or young adult under the age of 18 years might be suffering, or is likely to suffer significant harm (including any mistreatment or abuse), contact the Children's Services CSC on 01522 782111. If it is outside normal office hours you can contact the Emergency Duty Team on 01522 782333. If your referral is assessed as a safeguarding concern then you will be required to complete the Safeguarding Referral Form as written confirmation of your referral. Send this via secure email or post) to the locality area team as directed by the call advisor at the time of referral. If your concern is in relation to an unborn child then you should follow the Lincolnshire Safeguarding Children Partnership Pre-birth Protocol.

For all safeguarding children policies and procedures, go to the Lincolnshire SCP Policy and Procedures Manual.

7. Competency & Capacity

Gillick competence: refers to a young person being able to give valid consent independently of their parent /guardian providing they have sufficient understanding and intelligence of the medical condition, treatment or proposed intervention. Although there is no lower age limit it is seen as rare that it is appropriate for a child under the age of 13 years to give valid consent without the knowledge of their parent /guardian (Shaw, 2001). Based on the terms of Gillick competence we move towards general capacity to consent. Gillick refers to medical treatment specifically.

Fraser competence: Lord Fraser's guidance relates only to contraception and sexual health intervention and for those aged only between 13 years and 15 years of age. Any child under the age of 13 years disclosing a sexual relationship should be referred to social care as per local policy (see own policy and Local Safeguarding Partnerships policy).
NSPCC 'Gillick competency' and 'Frazer guidelines'

Mental Capacity Act (2005) sets out a legal framework of how to act and make decisions on behalf of people aged 16 years and over, who lack capacity to make specific decisions for themselves. It sets out some core principles and methods for making decisions and carrying out actions in relation to personal welfare, healthcare and financial matters affecting people who may lack capacity to make specific decisions about these issues for themselves.

(See The Principles, Mental Capacity Act 2005).

Appendix 1: Process Flowchart

Click here to view Appendix 1: Process Flowchart.