Absenteeism in the Coronavirus

In a recent resolution, the Public Prosecutor's Office has defined what it understands by truancy, establishing that only those cases that lack clear and definitive justification for the exemption, even temporary, of the student's duty to attend school in person will motivate the Public Prosecutor's Office to continue its proceedings for the purpose of bringing criminal proceedings against those parents or guardians who have allegedly infringed the duties inherent to parental authority in this area.

A document published by the Public Prosecutor's Office for Minors addresses the situation of children returning to school in the current situation of outbreaks and increase in the number of positive cases of the coronavirus in our country. Specifically, criteria are unified on possible behaviour classified as truancy. Specifically, cases of minors who, for fear of their parents becoming infected, do not attend school activities at their educational centre.

In the context of the right to health and the right/obligation to education, in view of the imminent start of the 2020/2021 school year, in relation to the uncertainty generated at national level in the families of schoolchildren affected by the need to attend school in person for students between the ages of 6 and 16, the Specialised Unit for Minors of the FGE considers it appropriate to point out the following aspects:

The action of the Public Prosecutor's Office is only justified after the realisation of those conducts that are carried out in open opposition to the fulfilment of the legal duty of schooling of minors. But never with a preventive character alien to the institution's own tasks.

In the age brackets between 6 and 16 years of age, the legal obligation of compulsory schooling persists in the terms and conditions established by the state and autonomous community legislation applicable in each case.

The respective Autonomous Communities have established the criteria to be followed in each of them, which have been translated into the corresponding instructions to schools. Consequently, schools must apply and observe the appropriate safety protocols established by the competent educational and health authorities.

The attendance of students, within the aforementioned parameters and conditions, constitutes an unavoidable obligation for the parents or guardians of the minors affected.  Their voluntary, unjustified and persistent non-attendance will entail the legal consequences derived from the non-fulfilment of the duties inherent to parental authority, as has been the usual case up to now in cases of absenteeism.

Schools, when they detect cases of voluntary and unjustified non-attendance at school, will be responsible for notifying the respective Local or Provincial Absenteeism Commissions of such non-compliance and for carrying out the relevant administrative procedures. Only in cases of repeated and unjustified absence from class shall a copy of the file opened for this purpose be sent to the Public Prosecutor's Office, in accordance with the respective action protocols in force in each territory.

Once these administrative files have been received by the Public Prosecutor's Office, the appropriate pre-procedural proceedings will be initiated in order to individually weigh up the circumstances of each case, modulating the adequacy of the institutional response to the specific situation of the students affected and their respective families, taking into consideration the current pandemic situation derived from COVID-19, and the unique scenario derived from the health risks present not only in the school environment, but also in the family environment.

With regard to the actions of the Public Prosecutor's Office, the communiqué is clear: "Only those cases that lack clear and definitive justification for the exemption, even temporary, of the students' duty to attend school in person will motivate the Public Prosecutor's Office to continue its proceedings for the purpose of bringing criminal proceedings against those parents or guardians who have allegedly infringed the duties inherent to parental authority in this area".

For any question related to these issues please contact our Law Firm in Madrid.