Emma Murdoch
22 Oct 2023
As a family practitioner, one question I am regularly asked by clients is whether or not they have the right to reach out to their child’s school and request updates on their education, including school attendance records and report cards. The majority of mothers or fathers who have parental responsibilities and parental rights (PRRs) in respect of their child presume that they are entitled to this information. But, what about access to educational records by persons who do not have PRRs because they are not married to the mother, are not named on the child’s birth certificate (even where that person is the biological parent), or where the person has care of the child?
Legislation governing access to educational records
Access to educational records is regulated primarily by the Pupils’ Educational Records (Scotland) Regulations 2003 (SSI 2003/581) (the 2003 Regulations) read in conjunction with the Education (Scotland) Act 1980 (the 1980 Act).
When we talk about parents requesting disclosure of educational records, it is important to note that reg.2 of the 2003 Regulations defines a “pupil” as someone who is or who has received school education and therefore the parent could request information in relation to someone who has left school.
Regulation 3 of the 2003 Regulations defines educational records; reg.5 gives a clear description of the requirement upon schools to disclose educational records; and reg.5(1) stipulates a timescale of 15 school days from request so there should be no delay in disclosure of the information.
It is important to highlight reg.5(3) of the 2003 Regulations which states that: “The responsible body is not obliged to comply with the requirements of paragraphs (1) and (2) above unless they are supplied, on request, with such information as they may reasonably require in order to satisfy themselves as to the identity of the person making the request and to locate the information which that person seeks”. This gives rise to the question of who can make the request for educational records and what information requires to be shown in order to “satisfy” the responsible body of that person’s identity.
Definition of the term “parent”
When reading the 2003 Regulations, reference is made throughout about the request for educational records from a “parent”. Regulation 2 of the 2003 Regulations establishes that the definition of the word “parent” for the purposes of the Regulations has the same meaning as in s.135(1) of the Education (Scotland) Act 1980, namely, that, “‘parent’ includes guardian and any person who is liable to maintain or has parental responsibilities (within the meaning of section 1(3) of the Children (Scotland) Act 1995) in relation to, or has care of a child or young person”.
But what does this mean in terms of tendering advice to clients? It appears to be clear cut that a person with PRRs—the mother, married father, an unmarried father who is named on the birth certificate, and anyone who has been granted PRRs through an court order under s.11 of the Children (Scotland) 1995 Act —can request disclosure of the child’s educational records.
However, as well as the aforementioned individuals, the definition of “parent” appears to include a person “who is liable to maintain” the child. This could be, for example, a parent with no PRRs. While there is no specific mention in the 1980 Act of a person who has had PRRs removed by a court, it is unlikely that such a person would successfully gain access to educational records. The definition also includes a person who “has care of the child or young person”, This could include, for example: a step-parent; a grandparent who may be informally, but actively, caring for the child, whether temporarily or not; or a foster or kinship carer with whom the child has been placed under a Compulsory Supervision Order (s.83 of the Children’s Hearings (Scotland) Act 2011), Permanence Order (Adoption and Children (Scotland) Act 2007), or by a local authority under s.25 of the Children (Scotland) Act 1995.
Circumstances where information should not be disclosed
The 2003 Regulations also set out circumstances in which educational records should not be disclosed by the responsible body, even if the individual requesting the records meets the criteria of being a “parent”. Regulation 6 of the 2003 Regulations narrates four exceptions to the duty on the responsible body to disclose information. The first two exceptions in regs.6(aa) and (ab) relate to GDPR issues, the greater detail of which is outwith the scope of this article, other than to alert readers to s.208 of the Data Protection Act 2018 which relates to “Children in Scotland” and which states that, “… where a question falls to be determined in Scotland as to the legal capacity of a person aged under 16 to – (a) exercise a right conferred by the data protection legislation, or (b) give consent for the purposes of the data protection legislation … a person aged 12 or over is presumed to be of sufficient age and maturity to have such understanding, unless the contrary is shown”.
The third exception (reg.6(d)) is where disclosure, “would in the opinion of the responsible body, be likely to cause significant distress or harm to the pupil or any other person”. The meaning of “significant distress or harm” are not defined anywhere in the 2003 Regulations, nor the 1980 Act. In these circumstances, the ordinary dictionary meaning of the words would apply. It should be noted that it is the responsible body, i.e., the school, that determines whether or not the sharing of educational records will cause significant distress or harm to the pupil or any other person (for example, a family member).
The fourth exception (reg.6(e)) relates to situations where the information requested consists of a confidential reference given or to be given to the pupil, “for the purposes of education, training, or employment or prospective employment”. Here, the responsible body shall not disclose the information.
Advice to clients in respect of accessing educational records
It appears, then, that the definition of “parent” to be applied to the 2003 Regulations can be widely interpreted to include parents (with or without PRRs), and a range of persons who have care of the child or young person, all of whom may request disclosure of the child’s educational records. Clients who wish to request disclosure of a child’s educational records should be made aware of the exceptions and circumstances that may result in the request being refused. Clients may also raise issues where the “opinion” of the responsible body in refusing the request is called into question. To date, there appear to be no reported cases of actions taken against the responsible body in respect of a refusal to disclose where “significant distress or harm” is cited as a reason.
Attending parents’ meetings
Similar to accessing educational records, clients regularly seek advice on whether to not they can participate in parent’s meetings, even if they have separated from the other parent of the child. From experience, it seems clear that schools will try to accommodate the request for separate parent evenings or separate meetings, which seems to work for all parties involved, especially where there is acrimony following a separation.
The Scottish Schools (Parental Involvement) Act 2006 regulates parental involvement in a child or young person’s education. This includes, but is not restricted to, the opportunity to be able to express views on the school’s strategy for parental involvement (s.2 of the 2006 Act). Note that the term “parent” also has the meaning given in s.135 of the 1980 Act. Therefore, advice to clients should be that parents and those with care of the child or young person are entitled to attend parents’ meetings. Where there is parental or other acrimony, the parents or carers should seek advice from the school on arrangements that can be put in place to ensure that those persons who meet the criteria for “parent” can attend parents’ meetings.
Emma Murdoch
Solicitor
CSG Legal