Fair Access Protocol - Question for Admissions Experts

[wellialways]

Clause 3.17c: "children from the criminal justice system".

What does this mean exactly? Does a child who has received a caution fall into this category, or do they need to be convicted of a crime?

Also, if a school received an in-year application from a child who was "from the criminal justice system", would they know before offering them a place, or only afterwards when records are transferred?

Any application to a school utilising the FAP will come through the LA having decided to exercise the FAP, so the school would be aware of the reason that the child qualified for the FAP.

The "criminal justice" element is designed to cover children who need to be integrated back into mainstream; on it's own, a child who merely received a caution is unlikely to be covered, unless there is some reason why they cannot continue at their existing school because of the reason for the caution.
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Yes, although I think the wording of the local FAP (which should be consistent with the DFE guidance quoted here) will be important too. I’ve seen some which talk of “children known to the police”, which puts a slightly different emphasis on it.

But if the family of a child who is 'from the criminal justice system' just do a normal in-year application to a school, my question is, does the LA have a duty to tell the school the history before they offer a place?

If the school does know the full picture, they might reject the application and refer the child to the FAP but, if they don't, then they won't find out the history until their offer is accepted and records have been transferred.

But if the family of a child who is 'from the criminal justice system' just do a normal in-year application to a school, my question is, does the LA have a duty to tell the school the history before they offer a place?

If someone applied for a school and the school had a place, they must be given it.

The only exceptions are where a child has been permanently excluded twice, or the school believe they will display "behaviour ... unlikely to be responsive to the usual range of interventions to help prevent and address pupil misbehaviour or it is of such severity, frequency, or duration that it is beyond the normal range that schools can tolerate." And even then they can only do so if they already have a high number of children with challenging behaviour.

So it would depend on the reasons for being "in the justice system" and whether they were likely to fall under those.

What is your concern here? That your child may be refused a place because they have received a caution?

I suspect this is about the Rehabilitation of Offenders Act as much as it is about the FAP. I’m not a criminal lawyer, but the advice on gov.uk notes that youth and simple cautions become spent straight away, so my understanding is that they don’t need to be declared. I suggest you seek legal advice on this.

As PatriciaHolm says, if someone applies and the school has a place, it must be offered. They cannot refuse a place on the basis that the child has been in prison or has a caution.

As cautions are spent immediately (apart from conditional cautions, which are spent after 3 months from the date of caution), they would be breaking the law if they asked about them and the LA would be breaking the law if they informed the school of the caution (Rehabilitation of Offenders Act 1974 Section 9A "Unauthorized disclosure of spent cautions").

But if the place was refused for other reasons (just because no vacancy) and the family went to appeal, can they be asked about the criminal justice system history at the appeal?

It is highly unlikely that such a question would be asked. Neither the admission authority nor the appeal panel is entitled to ask about spent convictions. They would be breaking the law if they did. Even if they do, you can legitimately say that there are no cautions. You do not have to reveal spent convictions to anyone.

But if its mentioned in the appeal papers as part of the reason why they want to schools, but the school knows nothing else, do you mean they can't ask questions at the appeal to find out more details?

I refer you again to the Rehabilitation of Offenders Act 1974 Section 9A "Unauthorized disclosure of spent cautions". Anyone who, in the course of their duties, becomes aware of the caution and discloses it to anyone else is committing a criminal offence. No-one will have disclosed the caution to the LA. Even if they were aware of it, they cannot tell the school. And neither the LA nor the school can inform the appeal panel.

If you mention the caution in your case the panel can ask about it. But the admission authority cannot mention it, nor can the appeal panel ask if the child has been cautioned.

We seem to be going round in circles here.

The parent of the child - thanks to the Rehabilitation of Offenders Act - is under no obligation to mention the caution, because it’s spent. If they choose to mention it, the panel might then ask about it.

I didn't say the caution was spent. (Sorry you're finding it frustrating Panelchair - I'm trying to ask questions without giving details, but it has led to incorrect assumptions being made).

If a school doesn't have a place, they don't have a place.

The LA could order them to go over PAN and take the student.

However, would it be in the interests of the child (or others) to deliberately conceal circumstances that could put them at risk? It's easy to think it'll all be fine afterwards, but that isn't always the case - the student could need further support.

Unless it was a conditional caution given less than 3 months ago, it is spent.

I think you may have been confused by what happens with DBS checks. A caution remains on DBS checks for 2 years if the offender is under 18, but that is because an enhanced DBS includes spent convictions and cautions. A conditional caution becomes spent after 3 months. All other cautions are spent immediately. So, unless the child concerned received a conditional caution within the last 3 months, it is spent. If they did receive a conditional caution, it will almost certainly be spent by the time you get to any appeal.

I understand you want to maintain your anonymity. The information I linked to on gov.uk confirms that youth cautions and simple cautions are immediately spent, so the only person who can disclose it is you, if you choose to as part of your application.

And when I say you, I mean the parent making the application, whoever that may be. I’m aware there are several possible scenarios here and there’s no need for you to specify, if you want to keep the discussion vague.

The law on when a caution becomes spent is the Rehabilitation of Offenders Act 1974 Schedule 2 paragraph 1(1). This states that a conditional caution becomes spent 3 months after it is given or, if earlier, when the caution ceases to have effect, and that all other cautions become spent at the time they are given.

A caution will continue to appear on enhanced DBS checks after it is spent, but that does not alter the fact that it is spent.

If you think there is something different in the case to which you refer that means different rules apply, feel free to PM me.