| A very frequently asked question is, what happens if my child does not attend school during the exemption application process? Let's look at the law, your options, and what can and can't happen. |  |
The Law Regarding Attendance
The Education and Training Act 2020 is the piece of legislation that governs most things education related. You can read the entire Act HERE. For the previous Education Act 1989, go HERE.
The main three sections to consider here are (with links to previous Act version under each):
The main three sections to consider here are (with links to previous Act version under each):
Section 35 Domestic students aged between 6 and 16 years must be enrolled at registered school
(1) Every domestic student must, during the period beginning on the student’s sixth birthday and ending on the student’s 16th birthday, be enrolled at a registered school.
(2) Before a domestic student’s seventh birthday, the student is not required to be enrolled at a school more than 3 kilometres walking distance from the student’s residence.
(3) Subsections (1) and (2) do not apply to international students.
Compare: 1989 No 80 s 20
Section 36 Students of registered schools required to attend whenever schools are open
(1) Except as provided in this Act, a student is required to attend a registered school whenever it is open if the student--
(a) is required to be enrolled at a registered school:
(b) is aged 5 years and is enrolled at a registered school.
(2) A board must take all reasonable steps to ensure that the school’s students attend the school when it is open.
(3) For the purposes of this section, a student attends a school on any day if, on the day,--
(a) it has been open for instruction for 4 hours or more; and
(b) the student has been present for 4 hours or more when it was open for instruction.
Compare: 1989 No 80 s 25(1)-(3)
38 Long-term exemptions from enrolment
(1) An employee of the Ministry designated by the Secretary for the purpose (a designated officer) may, on application by a parent of the student, grant the parent a certificate that exempts the student from the requirements of section 35 if the designated officer is satisfied that the student--
(a) is to be taught at least as regularly and well as in a registered school; or
(b) is to be taught at least as regularly and well as in a specialist school or a special service (if the student would otherwise be likely to need special education).
(2) If a designated officer refuses to grant a certificate under subsection (1), the applicant may appeal to the Secretary, who, after considering a report on the matter from the Chief Review Officer, must confirm the refusal or grant a certificate.
(3) The Secretary’s decision is final.
(4) An exemption certificate granted under this section must state why it was granted.
(5) The Secretary may revoke an exemption certificate, but only if the Secretary--
(a) has made reasonable efforts to get all of the relevant information; and
(b) has considered a report on the matter from the Chief Review Officer; and
(c) is not satisfied under subsection (1).
(6) If the Secretary thinks any student to whom an exemption certificate applies would be better off if receiving special education, the Secretary may revoke the certificate and issue a direction under section 37.
(7) An exemption certificate expires when the person to whom it applies turns 16 years or enrols at a registered school, whichever occurs first.
(8) A certificate continues in force until it is revoked or expires.
Compare: 1989 No 80 s 2
(1) Every domestic student must, during the period beginning on the student’s sixth birthday and ending on the student’s 16th birthday, be enrolled at a registered school.
(2) Before a domestic student’s seventh birthday, the student is not required to be enrolled at a school more than 3 kilometres walking distance from the student’s residence.
(3) Subsections (1) and (2) do not apply to international students.
Compare: 1989 No 80 s 20
Section 36 Students of registered schools required to attend whenever schools are open
(1) Except as provided in this Act, a student is required to attend a registered school whenever it is open if the student--
(a) is required to be enrolled at a registered school:
(b) is aged 5 years and is enrolled at a registered school.
(2) A board must take all reasonable steps to ensure that the school’s students attend the school when it is open.
(3) For the purposes of this section, a student attends a school on any day if, on the day,--
(a) it has been open for instruction for 4 hours or more; and
(b) the student has been present for 4 hours or more when it was open for instruction.
Compare: 1989 No 80 s 25(1)-(3)
38 Long-term exemptions from enrolment
(1) An employee of the Ministry designated by the Secretary for the purpose (a designated officer) may, on application by a parent of the student, grant the parent a certificate that exempts the student from the requirements of section 35 if the designated officer is satisfied that the student--
(a) is to be taught at least as regularly and well as in a registered school; or
(b) is to be taught at least as regularly and well as in a specialist school or a special service (if the student would otherwise be likely to need special education).
(2) If a designated officer refuses to grant a certificate under subsection (1), the applicant may appeal to the Secretary, who, after considering a report on the matter from the Chief Review Officer, must confirm the refusal or grant a certificate.
(3) The Secretary’s decision is final.
(4) An exemption certificate granted under this section must state why it was granted.
(5) The Secretary may revoke an exemption certificate, but only if the Secretary--
(a) has made reasonable efforts to get all of the relevant information; and
(b) has considered a report on the matter from the Chief Review Officer; and
(c) is not satisfied under subsection (1).
(6) If the Secretary thinks any student to whom an exemption certificate applies would be better off if receiving special education, the Secretary may revoke the certificate and issue a direction under section 37.
(7) An exemption certificate expires when the person to whom it applies turns 16 years or enrols at a registered school, whichever occurs first.
(8) A certificate continues in force until it is revoked or expires.
Compare: 1989 No 80 s 2
So, legally, a child from their 6th to 16th birthdays must be enrolled in and attend school, unless they are exempt under Section 38 as home educators (or one of the other types of exemption, but we won't go into those here). This means that until the exemption is granted, the child should remain in school.
If You Want to Keep Your Child Home During The Exemption Process
In some circumstances, parents believe it is not in their child's best interests, or otherwise reasonable, to keep their child in school during the application process. Common scenarios include:
- A child who is suffering from extreme anxiety regarding school
- A child who is not safe at school
- A child who's health and/or well-being prevents them from attending school
- A family who have just moved to the country or an area, and to put them in school for a very short time would be unreasonably disruptive and/or expensive for family and school
- A family who have made a last-minute decision to proceed with home education, and school is going back in for a new term or similar
- A family who believe their child is simply better learning at home, perhaps because they have not been making appropriate progress at school
- A family who are simply keen to get on with it
- A family who's child turns six during the application process
Every parent has both the right and the responsibility to look out for their child's best interests. The Care of Children Act states that parents have the right to decide important things for their children, including where and how they will be educated (which is the reason Section 38 exemptions exist). I encourage all parents to remain within the law if at all possible - the onus is on parents in most circumstances to arrange to submit an exemption application in a timely fashion so that they can begin homeschooling their child without a period of truancy. However, parents must also consider their child's needs and well being and do what is best for them.
If you have decided to keep your child home during the application process, then there are some things you should know, and some options you should consider.
Firstly, if either of the following can be applied, then there will be no "truancy" during this time:
1) Talk to your child's school principal. Explain the decision you have made, and ask them if they would keep the child on the roll and mark them down under one of the following until the exemption is granted:
If the principal and/or doctor is unwilling or unable to be supportive about this, then you will need to decide whether to keep them home anyway. Meanwhile, they will be marked on the roll as "unjustified absence."
Firstly, if either of the following can be applied, then there will be no "truancy" during this time:
1) Talk to your child's school principal. Explain the decision you have made, and ask them if they would keep the child on the roll and mark them down under one of the following until the exemption is granted:
- "justified absence"
- learning at home with the school providing schoolwork
- principal's discretion for alternative education on the basis that you will be educating them at home (Section 52a)
If the principal and/or doctor is unwilling or unable to be supportive about this, then you will need to decide whether to keep them home anyway. Meanwhile, they will be marked on the roll as "unjustified absence."
"Truancy" referrals
When a referral to Attendance Services will happen
Each school is responsible to have and abide by it's own policies regarding the running of the school, and this includes how they handle non-attendance. The policy will usually determine at what point the school will refer the student to Attendance Services. This may be as little as three days, or as long as 20 days, of unjustified absence. (After 20 consecutive days of unjustified absence, the school can remove the student from their roll if they are 5 years old or 16 and over; as students of those ages are not legally required to be enrolled in school, once removed from the roll there is no truancy matter to be followed up.)
All students in NZ are on a national database known as ENROL, which also shows them linked to their school of enrolment, or as being home educated if exempt. If a student is removed from the school's roll and not enrolled in another school, nor exempt, then there is an automatic enquiry triggered for Attendance Services to follow up on.
If your child has just turned six and has never attended a school or ECE, then they will not yet be on ENROL. In that case, it is very unlikely anyone will be following up on why they are not enrolled in/attending school unless something else triggers it.
Each school is responsible to have and abide by it's own policies regarding the running of the school, and this includes how they handle non-attendance. The policy will usually determine at what point the school will refer the student to Attendance Services. This may be as little as three days, or as long as 20 days, of unjustified absence. (After 20 consecutive days of unjustified absence, the school can remove the student from their roll if they are 5 years old or 16 and over; as students of those ages are not legally required to be enrolled in school, once removed from the roll there is no truancy matter to be followed up.)
All students in NZ are on a national database known as ENROL, which also shows them linked to their school of enrolment, or as being home educated if exempt. If a student is removed from the school's roll and not enrolled in another school, nor exempt, then there is an automatic enquiry triggered for Attendance Services to follow up on.
If your child has just turned six and has never attended a school or ECE, then they will not yet be on ENROL. In that case, it is very unlikely anyone will be following up on why they are not enrolled in/attending school unless something else triggers it.
Attendance Services
Attendance services are contracted out by the MoE to various companies across the regions. All of these subcontractors have one primary role in regards to absent children: to talk to the families and try to ensure the child is returned to some suitable form of education. If they are asked to do so by the school, or an automated enquiry from ENROL, then they must follow up a family (though some are prompt about this, and some seem to take a long time!)
If you are contacted by Attendance Services, it should begin as a non-threatening enquiry as to why your child is not in school, and what your plans are.
If you tell Attendance Services that you have chosen to home educate and have put in an exemption application, then the only things they should say then are:
They might also try to discuss, especially if the child has already been absent for some time, whether it would be best to put them in school until the exemption is granted. If you have made a firm decision about that and communicate it to the Attendance Officer, then they should leave it there.
Attendance Services only remaining role in the event of an exemption application is to follow up and ensure that the exemption was granted so they can close their file - they can do this by accessing ENROL in due course.
Most Attendance Services staff are pleasant people, and in some cases they can be very supportive. There's no reason to be afraid of them.
On rare occasions in the past, we have had incidences where individual attendance staff have made ill-informed and inappropriate statements to parents about the exemption process and their part in it. If you happen to experience that, please get in touch.
If you are contacted by Attendance Services, it should begin as a non-threatening enquiry as to why your child is not in school, and what your plans are.
If you tell Attendance Services that you have chosen to home educate and have put in an exemption application, then the only things they should say then are:
- That usually takes about 4-6 weeks to process
- Please refer to the Ministry's website for more information
They might also try to discuss, especially if the child has already been absent for some time, whether it would be best to put them in school until the exemption is granted. If you have made a firm decision about that and communicate it to the Attendance Officer, then they should leave it there.
Attendance Services only remaining role in the event of an exemption application is to follow up and ensure that the exemption was granted so they can close their file - they can do this by accessing ENROL in due course.
Most Attendance Services staff are pleasant people, and in some cases they can be very supportive. There's no reason to be afraid of them.
On rare occasions in the past, we have had incidences where individual attendance staff have made ill-informed and inappropriate statements to parents about the exemption process and their part in it. If you happen to experience that, please get in touch.
Can Penalties Happen?
It's important to understand that Section 20 (requiring attendance) is there to protect a child's right to an education. It's aimed at ensuring children do go to school. For a law to work, there have to be possible penalties for those who break the law. In the case of on-going truancy, the law (Section 243 and Section 244) allows for fines to be imposed on parents, but ONLY upon conviction in a court of law. The fine for the first infringement is a maximum of $300, and for subsequent infringements, up to $3000 in the case of irregular attendance, and a maximum penalty of $3000 in the case of non-enrolment.
Note, however, that a court case and fines are generally treated as a last resort when all attempts to discuss and support a family so their child can be returned to school have failed.
In a situation where a parent has decided on an alternative form of education - namely in this case home education - and is in the process of applying for an exemption, there is unlikely to be any attempt to prosecute them. If, however, the exemption is declined and the child remains absent or non-enrolled for a prolonged period without resolution, then the Ministry may consider doing so.
Note, however, that a court case and fines are generally treated as a last resort when all attempts to discuss and support a family so their child can be returned to school have failed.
In a situation where a parent has decided on an alternative form of education - namely in this case home education - and is in the process of applying for an exemption, there is unlikely to be any attempt to prosecute them. If, however, the exemption is declined and the child remains absent or non-enrolled for a prolonged period without resolution, then the Ministry may consider doing so.
Does "truancy" affect the exemption application?
An exemption application and attendance are two separate matters. Your child being "truant" during this process does not affect the exemption application and it's outcome. Note, however, that you can expect to see the following:
- When the Ministry acknowledges receipt of your application, they use a form letter which includes a reminder that children from 6-16 must remain in school during this process
- If you happen to have direct contact with Ministry staff, they may also remind you of this law
Summary
If at all possible, apply for a home education exemption 4-6 weeks before you intend to begin homeschooling, and remove your child from school once it is granted. (Sometimes exemptions are processed much faster than that, but no guarantees).
If this is not possible, and you feel your child cannot remain in school until it is granted, discuss the situation with your child's principal and/or doctor and see if you can have them under "justified absence" in the meantime.
If that fails, you must consider the best interests of your child and act accordingly, understanding that you may be contacted by Attendance Services during this time. If so, be polite and firm, and ask for support from your local home educators group, myself or NCHENZ if needed.
If this is not possible, and you feel your child cannot remain in school until it is granted, discuss the situation with your child's principal and/or doctor and see if you can have them under "justified absence" in the meantime.
If that fails, you must consider the best interests of your child and act accordingly, understanding that you may be contacted by Attendance Services during this time. If so, be polite and firm, and ask for support from your local home educators group, myself or NCHENZ if needed.
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