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Term time holidays - prosecuting parents

Education lawyer Natalie Ruane looks at the legislation regarding taking children out of school to go on holiday during term time.

An Isle of Wight father who had successfully contested a fine for taking his young daughter on a school term time holiday has had his victory appealed by the Isle of Wight Council.  The Council has appealed to the High Court to overturn the decision of the Magistrates Court not to enforce the fine against the father.  In October 2015 the Isle of Wight Council took John Platt to court after he refused to pay a £120 fine.   He won his case after he told magistrates that section 444 of the Education Act 1996 did not put restrictions on holidays during term time provided pupils otherwise attended school regularly.

Section 444(1) of the Education Act states that “if a child of compulsory school age who is a registered pupil at school fails to attend regularly at the school, his parent is guilty of an offence”.    If found guilty you could end up with a criminal record and face a fine of up to £2,500, court costs or even a jail sentence of up to 3 months.

There is a second offence under the Act that is committed where a parent knows that the child was failing to attend regularly at the school and fails to cause the child to do so.  This is section 444(1A). 

There are a number of exceptions set out in section 444. Absences do not count if they are due to sickness or any unavoidable cause, if they are authorised by the school, if the day is exclusively set apart for religious observance by the religious body to which the parent belongs or if the local authority fail to discharge a specified duty to make travel arrangements.  

It is the local authority only that has the power to prosecute.  An authorised officer of the authority would issue a penalty notice if they had reason to believe that an offence under section 444 had been committed.    Before commencing any proceedings, the local authority must consider whether it is also appropriate, either instead of or as well as commencing proceedings, to apply for an education supervision order in respect of the child.  The local authority can also issue a school attendance order.

Generally cases under section 444 over the years have involved children with very high levels of absence.   There appears to be no definition of “attending regularly” for children who do not board at school. 

The legislation does not fix a set number of days for regular attendance.   Whether or not there has been regular attendance is likely to depend on the pattern of attendance rather than just the number of days.

In this particular case Mr Platt took his daughter out of school for a holiday in Florida for 7 consecutive school days.  The trip was unauthorised by the school.  

Mr Platt’s solicitors argued that he had no case to answer as his daughter had attended school regularly under the Education Act.

Mr Platt’s daughter, prior to the trip, had 100% attendance.  After the trip it is claimed that his daughter’s attendance rate was still 90.3%. 

Mr Platt’s solicitors referred to a previous High Court Case, London Borough of Bromley v C.  In that case the High Court ruled that if a parent is charged under section 444(1), magistrates simply have to decide whether the child has attended school regularly, not whether the absence was justified.

In this latest case, the Isle of Wight Council has applied to the High Court for an opinion on whether “the unauthorised absence of a child for 7 consecutive school days on holiday … amounts to a child failing to attend the school regularly”.

The Education (Pupil Registration) (England) (Amendment) Regulations 2013, which came into force on 1 September 2013 removed references to family holiday and extended leave as well as the notional threshold of 10 school days leave for special circumstances.  The amendments make it clear that headteachers may not grant any leave of absence during term time unless “exceptional circumstances” exist.  A holiday is not classed as an “exceptional circumstance”.  

Interested parties have urged the Department for Education to change the rules on term time holidays saying that a reasonable common sense approach should be allowed and that headteachers should be allowed to give reasonable consideration to term time leave requests.

With the importance of the issue and the need to obtain clarity it would appear that this appeal to the High Court will be of interest to parents, headteachers and local authorities alike.

If you would like more information on this matter or any other education matter, please contact Natalie Ruane on nr@burnetts.co.uk or 01228 552222.

About the author

Natalie Ruane profile photo

Natalie Ruane

Natalie is a Partner and leads the Employment Law & HR team and specialises in education.

Published: Tuesday 2nd February 2016
Categorised: Education

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