Commentary Part 7: Discipline, Behaviour and Exclusion Section 109: Failure to secure school attendance
518.Section 109 makes various amendments of section 444 of the 1996 Act, which sets out offences that may be committed by a parent whose child fails to attend regularly at a school at which he is a registered pupil. Section 444 as it stands provides for two offences: the offence in subsection (1) of section 444 does not require proof that the parent is aware that the child is not attending regularly, while the more serious offence in subsection (1A) of the section does require such proof.
519.Subsections (1) and (2) of section 109 make amendments of section 444 of the 1996 Act  to ensure that where a parent is charged with an offence under subsection (1A) of that section, the defence of reasonable justification is subject to a reverse legal burden of proof. In other words, it is for the parent to prove, on a balance of probabilities, that the parent has a reasonable justification for failing to ensure the child’s attendance.
520.These amendments are intended, for future cases, to reverse the effect of the decision of the High Court on 15th March 2006 in R (on the application of P) v Liverpool City Magistrates [2006] EWHC 887 (Admin) in which it was held that the words “without reasonable justification” in subsection (1A) of section 444 of the 1996 Act created an evidential burden, that is to say, the parent had to produce credible evidence of reasonable justification. It would then be for the prosecution to prove that the parent did not have a reasonable justification. Before this decision it had been generally understood that the words concerned created a reverse legal burden of proof. The amendments made by this section reverse, for future cases, the effect of the High Court decision.
521.Subsections (3) to (5) and (7) of section 109 make similar amendments in relation to the defence relating to the child’s sickness or any other unavoidable cause. These amendments relate to the offence in subsection (1) of section 444 as well as the offence in subsection (1A).
522.In addition, subsection (6) of section 109 alters the wording of the defence in section 444(6) (where the child is of no fixed abode and the parent's trade or business requires travel from place to place) to bring it into line with the wording in the new subsections (1B) and (2A) (which is more consistent with the wording generally used in new legislation). There is no change of substance here, since section 444(6) already provides for a reverse legal burden.
523.The section also inserts a new subsection (7A) into section 444 of the 1996 Act so that it is an offence against subsection (1) or (1A) for a parent to fail to secure the attendance of a pupil excluded for a fixed period where alternative provision has been arranged for him by the appropriate authority at the same school. The schools covered are a local authority maintained school, a pupil referral unit, an Academy, city technology college or city college for the technology of the arts. New subsection (7B) defines the appropriate authority in relation to each such type of school. For a maintained school it is the governing body, for a pupil referral unit the local education authority, and for the other schools the proprietor.
524.By subsections  (9)  and (10) the section also amends section 444ZA of the 1996 Act and section 16 of the Crime and Disorder Act 1998  respectively  to bring the language used  for reverse legal burdens of proof in those sections  into line with the language used in section 444 as amended by this section.
525.Subsection (11) provides that the amendments made by section 109 do not apply to any failure to attend at a school occurring before the commencement of the amendment in question.