I don’t normally do Education law here, but this case was a major news item when it was decided, and it has taken quite a while to get the judgment to be able to see what the Court ACTUALLY said. [Also, as it relates to non school attendance, that’s something that does come up within care proceedings from time to time, so has relevance]
Isle of Wight Council v Platt 2016
Mr Platt took his daughter on a holiday from 13th April 2015 to 21st April 2015. This was in school term times. He had asked the head teacher of the school for permission and the head teacher had refused. Head teachers have been advised as part of Government policy to only allow parents to take children out of school for holidays in exceptional cases.
The Government policy is based on the idea that children missing school is bad for their education, and disruptive for classes generally as missed lessons mean the teacher having to spend time in later classes bringing that child up to speed with what has been missed.
On the other side of the coin, many parents are unable to afford the hike in prices for holidays set by travel companies during school holidays. (That’s not just because travel companies are evil and exploitative, it is also economics – all prices are set by supply and demand – if supply is limited and demand is high prices will go up. With summer holidays, more people want to go on holiday in July and August, so the prices are more because demand has increased without the supply increasing)
The Isle of Wight Council sent Mr Platt a notice of the fine he would have to pay for unauthorised absence. (Some parents have found that the fine is less than the savings they make by going on holiday in term time, so again economically it makes sense to take the holiday and pay the fine)
Mr Platt decided that he did not want to pay the fine, so the Council took him to Court, prosecuting him for non school attendance
- The relevant provisions of section 444, Education Act 1996 are as follows:
- “(1) If a child of compulsory school age who is a registered pupil at a school fails to attend regularly at the school, his parent is guilty of an offence.
(1A) If in the circumstances mentioned in subsection (1) the parent knows that his child is failing to attend regularly at the school and fails without reasonable justification to cause him to do so, he is guilty of an offence.
(2)Subsections (3) to (6) below apply in proceedings for an offence under this section in respect of a child who is not a boarder at the school at which he is a registered pupil.
(3)The child shall not be taken to have failed to attend regularly at the school by reason of his absence from the school—
(a) with leave,
(b) at any time when he was prevented from attending by reason of sickness or any unavoidable cause, or
(c) on any day exclusively set apart for religious observance by the religious body to which his parent belongs.
(8)A person guilty of an offence under subsection (1) is liable on summary conviction to a fine not exceeding level 3 on the standard scale.
(9)In this section ‘leave’, in relation to a school, means leave granted by any person authorised to do so by the governing body or proprietor of the school.”
With regard to the school’s power to give leave of absence, Regulation 2 of the Education (Pupil Registration) (England) (Amendment) Regulations 2013, SI 2013/756, amended Regulation 7 of the Education (Pupil Registration) (England) Regulations 2006, SI 2006/1751, so as to provide that leave must not be granted unless the school considers that leave of absence should be granted due to the exceptional circumstances relating to that application.
The legal argument hinged (as many legal arguments do) on interpretation of a single word
If a child of compulsory school age who is a registered pupil at a school fails to attend regularly at the school, his parent is guilty of an offence.
The Council said that for the prosecution, the period of time covered is that in the indictment. I.e, between 13th April 2015 and 21st April 2015 had Mr Platt sent his child to school regularly? Well, no, because she hadn’t been at school at all during that period.
Mr Platt argued that ‘regularly’ should be taken to cover the school year as a whole. I.e that someone whose child was at school nearly all the time, but then missed a week, was still at school ‘regularly’
The Magistrates who originally heard the case decided in favour of Mr Platt and that he had not committed the offence. The case went to the High Court on appeal.
The High Court also agreed with Mr Platt, and refused the appeal.
Now, it is not quite as clear as the Press reports have said. This case is not authority for
You can’t be prosecuted for taking an unauthorised term-time holiday
It is okay to take an unauthorised term-time holiday
Those things are okay IF your child’s school attendance is above X amount
The Government Regulations about term-time holidays only being approved in exceptional circumstances are no more
or Anyone who has been refused permission to go on holiday can go
or Anyone who has been fined is okay to just tear it up
or Anyone who has paid a fine is entitled to their money back
All of those things are possible implications, but the High Court did not decide on any of them.
It is, however, authority for – when deciding whether a parent has failed to ensure that their child attended school, the Court is entitled and should consider the issue of regular attendance in light of overall attendance
In this case, the question whether attendance had been regular could not be ascertained solely by reference to the period of absence. It was necessary to have regard to the period of absence in a wider context of attendance. The magistrates were bound to consider whether there was regular school attendance in the light of all the evidence including the school’s record of attendance. In this case, I note that the education authority placed before the court M’s record of attendance from 1 September 2014 to 7 July 2015. I consider that the magistrates correctly had regard to that wider picture. Moreover in all the circumstances of this case I am unable to say that their conclusion was not one reasonably open to them.
It is also authority for, simple unauthorised absence during term time does not automatically mean that the offence is committed
I am unable to accept Mr Jackson’s submission that consideration of Regulation 2 of the 2013 Regulations makes the intention of Parliament clear. He submits that its effect is that parents cannot simply take their children out of school to take them on holiday or for any other unauthorised reason, and such application should only be granted by the school in exceptional circumstances. First, the regulation is, of course, secondary legislation. Secondly, the regulation does not have the effect of amending the statute. In my view, the nature and scope of the offence created by section 444(1) remain unchanged. In particular I would reject the suggestion that Regulation 2 has the effect that any absence without statutory excuse necessarily constitutes an offence under section 444(1).
The Court were invited to go down a path of “without a clear definition of what regular means, the offence is too vague and thus unfair to prosecute any parent for non school attendance” – presumably more with a view to the High Court attempting a definition of ‘regular’ rather than saying there’s no such thing as truancy any longer. The High Court did NOT fall into this trap, and made it clear that any Court contemplating such a thing would have to have representatives from the Department for Education in Court.
- I should record that in his wider case, set out in his outline submissions, Mr Greatorex points to the absence of a definition of “regular” and submits that the provision is far too vague to be the basis of a criminal offence, let alone an offence of strict liability. He submits that section 444(1) is not sufficiently clear and certain for a parent to know before taking a child out of school whether he or she is committing a criminal offence, and in this regard he draws attention to the observations of Elias J, as he then was, in Barnfather v London Borough of Islington  1 WLR 2318, at paragraph 57:
- “I recognise that the penalties are small, being only a fine, and that is a factor which can properly be considered when determining whether an offence of strict liability is justified. However, in my opinion there is nonetheless a real stigma attached to being found guilty of a criminal offence of this nature. It suggests either an indifference to one’s children, or incompetence at parenting, which in the case of the blameless parent will be unwarranted.”
- I draw attention to these submissions by Mr Greatorex without expressing any concluded view on them. It is not necessary for the court to consider these issues in order to dispose fairly of this case. Had the court considered it necessary to do so, in my view we should have had to consider whether the Department of Education should be served as an interested party in order that it might have the opportunity to make submissions on these wider issues. I would therefore answer the question posed by the magistrates in the case stated as follows:
- The magistrates did not err in law in taking into account attendance outside the offence dates 13 April to 24 April 2015 as particularised in the summons when determining the percentage attendance of the child.
Where the unauthorised term time holiday falls against a backdrop of otherwise good or average school attendance, Platt certainly makes it HARDER for a Council to go to Court to prosecute a parent who refuses to pay a fine. [And if there’s less of a risk – there’s certainly not NO risk, then a parent may well be less inclined to pay the fine, and schools and Councils may be less inclined to send out fine notices not wanting to take their chances in Court if the fine isn’t paid]
But just because in this individual case, the Court were reasonable in deciding that there had been regular attendance because the overall school attendance was just above 90% does not mean that another Court could not decide that school attendance of 90.3% for the school year was NOT regular attendance.
That’s important. There isn’t some clear interpretation of ‘regular’ here that says “If the child has been absent less than X, then it is fine to have a term time holiday, if not then it would be a valid prosecution”
The High Court have not set parameters or definitions for what is, or is not regular attendance. They have just ruled that the Magistrates were right to take the whole context of school attendance into account, not just the unauthorised holiday period, and that it was then within their discretion to decide whether there was ‘regular’ school attendance or not. Another Magistrates Court could consider exactly the same facts and reach a different conclusion without Platt meaning that they were wrong (they would be wrong not to take ACCOUNT of school attendance overall, and I expect Platt would be waved under their nose and there would be heavy hints of an appeal if the Magistrates decided that 95% attendance wasn’t ‘regular’)
I suspect that we will see an amendment to s444 of the Education Act 1996, to put into statute the Government’s aim that holidays should not be taken within term time. (They could say for example that ‘regular school attendance for the purpose of the Act can mean either (i) ensuring that the child attends school regularly throughout the school year or (ii) does not have an unauthorised absence of longer than 5 school days in any period of 31 days without a medical certificate or (iii) both.’ )
That probably won’t happen before this summer holiday, however.
What is hard to fathom, of course, is why a parent living in the Isle of Wight would want to take their child away on holiday when the Isle of Wight is Earth’s greatest holiday destination anyway?
[This post sponsored by the Isle of Wight Slightly Overstated Tourist Board]