it shall be the duty of the local authority, after due warning to the parent of such child, to complain to a court of summary jurisdiction, and such court may, if satisfied of the truth of such complaint, order that the child do attend some certified efficient school willing to receive him and named in the order, being either such as the parent may select, or, if he do not select any, then such public elementary school as the court think expedient, and the child shall attend that school every time that the school is open, or in such other regular manner as is specified in the order. (2) An order under this section is in this Act referred to as an attendance order. (3) Any of the following reasons shall be a reasonable excuse (4): (1.) That there is not within two miles, measured cause. (1) In Saunders v. Crawford (L. R., 9 Q. B. D. 612; 51 L. J., Q. B. D. 460; 46 L. T., N.S., 420), the question was raised whether this section, so far as it relates to the class of children referred to in the first clause, had not practically become inoperative by reason of the repeal of sec. 8 in this Act by sec. 107 of the Factory and Workshop Act, 1878 (41 Vict., c. 16). It appeared that a summons had been taken out under this section charging the defendant with having habitually and without reasonable excuse neglected to provide efficient elementary instruction for his child, whom the summons described as being of the age of 13 years or thereabouts, and as prohibited by this Act from being taken into full-time employment. It was argued that there was no child who could be said to be "under this Act prohibited from being taken into full-time employment;" that the only provision in the Act which could be said to prohibit the full-time employment of children was section 8, which incorporated certain sections of old Factory Acts; and that as section 8 had been repealed by the Factory Act, 1878, this section (sec. 11) had become inoperative so far as regards the first clause. The Court adopted this contention and decided accordingly. The same question was, however, raised in two subsequent cases, Winyard v. Toogood, and Hance v. Fortnum and others, Justices of Liverpool (L. R., 10 Q. B. D. 218; 52 L. J., M. C. 25; 48 L. T., N.S., 229; 31 W. R., 271). These cases, in consequence of the decision in Saunders v. Crawford, were heard before five judges (Coleridge, C.J., and Field, Hawkins, Stephen, and Watkin Williams, JJ.). The Court (overruling Saunders v. Crawford) held that the clause applies to children who by section 5 are prohibited from being employed at all, or who under that section can only be partially employed, the children in either case being "prohibited from being taken into full-time employment," that it was not intended that it should be restricted to children referred to in sec. 8 now repealed, and consequently that the clause is still in force. The case of the London School Board v. Bridge (L. R., 2 Q. B. D. 397 ; 46 L. J., M. C. 193; 36 L. T., N.S., 698) raised the question whether in a district in which there are bye-laws in force it is competent to the school board to institute proceedings against the parent under the bye-laws in a case which comes within the terms of this section, or whether they are limited to proceedings under this Act. It appeared that M. had neglected to send his child to school according to the bye-laws of the school board, and the board caused an application to be made for a summons against him with a view to enforcing the penalty for breach of the bye-laws. The magistrate, upon the facts stated on the application for the summons, came to the conclusion that the parent had "habitually neglected to provide efficient elementary instruction for his child,” and held that the school board were bound to proceed under this section, and accordingly declined to issue a summons for non-compliance with the bye-laws. On an application for a mandamus requiring the magistrate to issue the summons, the Court held that the magistrate was right. The same question was subsequently raised in Morgan v. Haycock (44 J. P., 199), and in that case also it was held that where there was habitual neglect within the meaning of this section, the proceedings should be under the statute, and not under the bye-laws. The difficulty occasioned by these decisions is now met by the provision in sec. 4 of the 43 & 44 Vict., c. 23, post, that “proceedings may in the discretion of the local authority, or person instituting the same, be taken for punishing the contravention of a bye-law, notwithstanding that the act, or neglect, or default alleged as such contravention constitutes habitual neglect to provide efficient elementary education for a child within the meaning of sec. 11 of the Elementary Education Act, 1876." In the cases of children under the age of thirteen years, to whom bye-laws apply, it may be assumed that proceedings will now rarely be taken under this section except when the circumstances are such that it is desirable to obtain an attendance order with the view to the child being sent to an industrial school, under sec. 12 of the Act, in the event of the attendance order not being complied with. As regards children between thirteen and fourteen years of age, the only proceedings for enforcing school attendance that can be taken will be those provided for by secs. 11 and 12 of this Act. The term "parent," as stated in the note to sec. 4, ante, includes "guardian and every person who is liable to maintain or has the actual custody of any child." With regard to the term "parent" as thus defined, see Hance v. Burnett (45 J. P., 54). In that case a complaint was laid against a married woman for breach of the bye-laws in the case of her child. At the date of the alleged offence the child was living with her and was under her control, but the father was at sea in pursuit of his lawful calling. The justices on the hearing of the case doubted whether a married woman could be regarded otherwise than as the agent of her husband, and dismissed the complaint. On a case stated by the justices, it was held that in the absence of the husband, whether by desertion or in the pursuit of his calling, it might be for years or months, the person having the care and custody of the child was liable for neglect of the byelaws. See also School Board for London v. Jackson, and Hance v. Fairburst referred to in note to sec. 12. The first clause of the section refers to "any child above the age of five years," and the second clause to " any child." In both cases the provision in sec. 48, that "a child in this Act means a child between the age of five and fourteen years," applies. As to the prohibitions with regard to the employment of children, see secs. 5 and 9, and 43 and 44 Vict., c. 23, sec. 4, post. The last-mentioned Act is to be read as one with this Act. (2) The "local authority" is the school board of the district or the school attendance committee, provided for by secs. 7 and 33. As to the jurisdiction of justices when the district of the school attendance committee extends into more than one county, see note to sec. 34 of this Act. If the parent selects the school which the child is to be ordered to attend, it will be sufficient if it is a "certified efficient school," but if the parent makes no selection, it must be a "public elementary school." As to the definition of a "certified efficient school," see secs. 16 and 48; and as to that of a "public elementary school," see sec. 7 of 33 & 34 Vict., C. 75, ante. If the parent does not make any selection of a school, and there is no public elementary school which the child can attend within two miles, measured according to the nearest road, from the residence of the child, the justices will not be in a position to make an attendance order. (3) For proceedings in the case of non-compliance with an "attendance order," see sec. 12. A certified day industrial school is a "certified efficient school," sec. 16. With regard to receiving children into a certified day industrial school under attendance orders, and the payments to be made by the parents and the parliamentary contributions in such cases, see sec. 16 (4). The Order in Council of the 20th March, 1877, by arts. 13 and 19 (see Appendix, pp. 675, 680), prescribes regulations which must be strictly observed when proceedings are taken for obtaining an attendance order requiring a child to attend a certified day industrial school. (4) The reasons which are to be deemed reasonable excuses are similar to those provided for by sec. 74 of the Elementary Education Act, 1870 (33 & 34 Vict., c. 75, ante), when bye-laws are made. One exception, however, is that, under the present section, it will be a reasonable excuse if there is no public elementary school open which the child can attend within two miles, measured according to the nearest road, from the residence of the child. Under the Act of 1870 it was left to the school board by their bye-laws to prescribe the distance, subject to the condition that it should not exceed three miles. As to "reasonable excuses," see note (7) to sec. 74 of the 33 & 34 Vict., c. 75, ante. See also Hewett v. Thompson referred to in note to sec. 12, post. Proceedings on Disobedience to Order of Court for 12. Where an attendance order is not complied with without any reasonable excuse within the meaning of this Act, a court of summary jurisdiction, on complaint made by the local authority, may, if it think fit, order as follows: U (1.) In the first case of non-compliance, if the parent of the child does not appear, or appears and fails to satisfy the court that he has used all reasonable efforts to enforce compliance with the order, the court may impose a penalty not exceeding, with the costs, five shillings; but if the parent satisfies the court that he has used all reasonable efforts as aforesaid, the court may, without inflicting a penalty, order the child to be sent to a certified day industrial school, or if it appear to the court that there is no such school suitable for the child, then to a certified industrial school; and (2.) In the second or any subsequent case of noncompliance with the order, the court may order the child to be sent to a certified day industrial school, or if it appears to the court that there is no such school suitable for the child, then to a certified industrial school, and may further, in its discretion, inflict any such penalty as aforesaid, or it may for each such non-compliance inflict any such penalty as aforesaid without ordering the child to be sent to an industrial school; Provided that a complaint under this section with respect to a continuing non-compliance with any attendance order shall not be repeated by the local authority at any less interval than two weeks. A child shall be sent to a certified industrial school, or certified day industrial school, in pursuance of this section in like manner as if sent in pursuance of the Industrial Schools Act, 1866, and when so sent shall be deemed to have been sent in pursuance of that Act and the Acts amending the same; and the parent, if liable under the said Acts to contribute to the maintenance and training of his child when sent to an industrial school, shall be liable so to contribute when his child is sent in pursuance of this section. An "attendance order" is an order made by a court of summary jurisdiction under sec. 11. As to the reasons for non-compliance with the order which are to be deemed a "reasonable excuse,' see note 4 to that section. In Hance v. Fairhurst (51 L. J., M. C. 219), the question was raised whether the term " parent" in this section includes the person for the time being having the custody of the child, so that such person may be convicted for non-compliance with an attendance order, when the order has in fact been made on another person. In the case referred to it appeared that an attendance order was made in December, 1880, on F. ordering him to send his child to a certain school. On March 4th, 1881, complaint was made against him for non-compliance with the order. His wife appeared on his behalf at the hearing, and a fine of one shilling was imposed. On the 20th June, 1881, F. died, leaving the respondent his widow. The attendance order was still in force. It had been made against the deceased husband, and a copy of it had been served upon him. No copy or minute had ever been served on the respondent, although from her appearance before the Court on the occasion when her husband was fined, she must have been aware of the order. Under these circumstances complaint was made against her for non-compliance with the attendance order. It was argued that the order was an order for the attendance of the child at school, and not merely an order on a particular parent, and that it affected the child in the custody of any person, especially if, as here, such person was well aware of the order. It was contended that if such were not the case serious difficulties would be thrown in the way of enforcing the attendance of children whose fathers were at sea. An attendance order could not be made, or if made, could not be enforced against the husband in his absence. If made on the mother during the husband's absence, it could not be enforced on the husband's return; for the child would be in the custody of the husband. The justices held that the liability under the attendance order attached to the person upon whom the order was made, and the copy or minute served. The defendant had not been warned before the proceedings were taken under section 11: she had had no opportunity of selecting a school: she had not been summoned to show cause why the order should not be made; and finally she had not been ordered to cause the child to attend school. They therefore dismissed the complaint. The Court (Mr. Justice Field and Mr. Justice Bowen) held that the justices were right. A further question as to the liability of a parent was raised in School Board for London v. Jackson (L. R., 7 Q. B. D. 502 ; 50 L. J., M. C. 134; 30 W. R., 47). In that case an order had been made requiring Caroline Jackson to cause her child to attend a board school situated in the parish of St. Mary, Islington. The order was not complied with, and the mother was consequently summoned. She appeared before the police magistrate and stated that as she was quite unable to maintain her daughter, who was between thirteen and fourteen years of age, she had sent her to an aunt at Fulham. The magistrate dismissed the summons on the ground that it had not been proved that the child was residing with and under the control of her mother, the defendant. He thought that the section defining the term "parent" did not contemplate that both the parent and the person having the actual custody of the child should be simultaneously liable to be convicted. The primary liability was, in his view, with the person who had the actual custody of the child. The Court held that the decision of the magistrate was wrong. The child it was said was sent away to stay with an aunt, but that did not relieve the mother from the obligation imposed on her by the statute. The case was not one where there was a permanent residence apart from the parent. In Hewett v. Thompson (58 L. J., M. C. 60, 60 L. T., 268, it appeared that an attendance order had been made in February 1888 in respect of the child of the defendant, and had been duly served on the defendant, that on August 28, 1888, the child did not attend school, that between June 30 and September 1 the child had been absent eleven times, and that the defendant had used every endeavour short of actually taking the |