BOPA - Section 7
It is important that licensing officers are clear on the different sections of legislation which have a bearing on absence from school to take part in a performance, activity or paid sport.
Absence from school
It is important that licensing officers are clear on the different sections of legislation which have a bearing on absence from school to take part in a performance, activity or paid sport.
The legislation covering this are:
Children and Young Persons Act 1963 S37(4) and 37(7) The Education (Pupil Registration) (Wales) Regulations 2010 Reg. 7
Section 37(4) of the 1964 Act states that a local authority shall not grant a licence for a child to do anything unless they are satisfied his education will not suffer.
Section 37(7) of the 1963 Act states a licence shall specify the times during which the child may be absent from school for the purposes authorised by the licence and for those times specified the absence shall be deemed to be authorised by a person authorised in that behalf by the managers, governors or proprietor of the school.
Licensing authorities should bear in mind that section 37(4) states that if they are satisfied the child's education will not suffer they shall not refuse to grant a licence. Therefore if the school cannot provide evidence or the local authority is not convinced by their evidence or objections they must issue a licence, if they are satisfied with all other aspects of the application.
A letter from the headteacher must accompany the licence application, unless the authority is satisfied that it is not possible or practicable to get such a letter (such as when an application is made during school summer holidays and does not involve time out of school), but not if there could have been time to get a letter if the application had been better planned.
The Education (Pupil Registration) (Wales) Regulations 201 Reg. 7
Regulation 7(2) states: Leave of absence shall not be granted to enable a pupil to undertake employment (whether paid or unpaid) during school hours except:
(a) employment for the purpose of taking part in a performance within the meaning of section 37 of the Children and Young Persons Act 1963(1) under the authority of a licence granted by the local authority under that section.
This is further clarified by Welsh Government advice (Keeping Young Performers Safe Guidance document no. 192/2015 Section 2.9 which states: for local authority maintained schools and special schools not maintained by the local authority,
a child may not be absent from school in order to perform or to take part in paid sport or modelling unless a licence has been obtained from the child's local authority. In practice, this means that unless the performance or activity is taking place outside of school hours (for example at a weekend or during school holidays), a child may not rely upon one of the exemptions in section 37(3) in order to perform as the headteacher may only authorise absence for a child to take part in a performance or activity for which a licence has been obtained.
However:
Regulation 7(5) states: This regulation (ie. Regulation 7 in its entirety) applies only in relation to a maintained school and a special school not maintained by a local education authority.
This means if he/she so chooses, the headteacher of an independent school, academy or free school is able to authorise absence to take part in a performance irrespective of whether a licence has been issued.
The following table sets out the circumstances when absence from school may be permitted under the exemptions in section 37(3).
| Type of school | Exemption | Can absence be authorised? |
|---|---|---|
| Local authority maintained school | 4 day rule | No - a licence will be required |
| Special school not maintained by the local authority | 4 day rule | No - a licence will be required |
| Independent school, academy or free school | 4 day rule | Yes - if the headteacher chooses to do so |
| Local authority maintained school | BOPA | No - a licence will be required |
| Special school not maintained by the local authority | BOPA | No - a licence will be required |
| Independent school, academy or free school | BOPA | Yes - if the headteacher chooses to do so |
With thanks to Sandra Rothwell, former NNCEE Chair and Author of The Guide to Performance Licensing England 2014. Amended to reflect Welsh Regulations by Jo Bowman, Cardiff Council.