| SPOTLIGHT |
The Isle of Wight Council, backed by the Government, recently won a high-profile appeal to the Supreme Court in a case on unauthorised school absence. Alexander Campbell analyses the judgment.
As thoughts turn to the summer holidays, many a parent will know the feeling of their jaw hitting the ground as they check the prices of taking a break during the school holidays. Many will therefore sympathise with Mr Platt who, when refused permission by his daughter’s school to take her on holiday during term time, decided to go on holiday with her anyway. Given that his daughter’s school attendance was otherwise very good (more than 90% even once the unauthorised holiday was taken into account), Mr Platt could be forgiven for believing that he could not be guilty of the criminal offence of being the parent of a child who fails to attend school regularly. After a lengthy legal battle, in Isle of Wight Council v Platt [2017] UKSC 28 the Supreme Court has taught him otherwise.
The law
Under section 444(1) of the Education Act 1996, a parent is guilty of an offence if their child fails to attend school regularly. The maximum penalty is a £1,000 fine.
As an alternative to prosecuting a parent, a local authority can instead impose a penalty notice in the sum of £60, which rises to £120 if not paid within 21 days. If a parent who is served with a penalty notice pays the sum specified, they will not be prosecuted.
The facts
Mr Platt sought the permission of his daughter’s school for a one week holiday during term time. The headteacher refused but Mr Platt took his daughter on holiday anyway. He refused to pay the penalty demanded and was prosecuted by the local authority. In the magistrates’ court, the magistrates ruled at the close of the prosecution case that there was no case to answer because, since his daughter’s overall attendance was in excess of 90%, his daughter had not failed to attend regularly.
The Divisional Court of the Queen’s Bench Division upheld the magistrates’ decision on appeal.
The Supreme Court
The Supreme Court overturned the earlier decisions and found for the local authority. The Supreme Court disapproved of earlier case law which had suggested that “regular” attendance at school meant “sufficiently frequently”. Instead, the Supreme Court held that “regular” attendance means attendance in accordance with the school rules. Consequently one single unauthorised absence would make a parent guilty of the section 444(1) offence. The Supreme Court held that that is the correct interpretation of “regular” attendance for a number of reasons:
(i) The Education Act 1944 (the predecessor to the 1996 Act) had been intended to increase the scope of compulsory education.
(ii) Other features of the legislation demonstrated that Parliament was seeking to tighten the law on parents whose children do not attend school; for example, Parliament removed the open-ended defence for parents that their child had a “reasonable excuse” for not attending and instead prescribed an exhaustive list of circumstances in which the offence would not be committed.
(iii) The wording of various provisions of the 1996 Act (on boarding schools, absences for religious reasons and children of no fixed abode) appeared to suggest that an unauthorised absence for just one day was sufficient for the s.444(1) offence to be committed.
(iv) If “regularly” meant “sufficiently frequently”, the law would be too uncertain and parents would not be able to know with any certainty whether they would be committing a criminal offence by taking their child on an unauthorised holiday of a particular duration.
(v) There are good policy justifications for not allowing parents to take their children out of school for unauthorised reasons: absences are disruptive to the pupil concerned, their peers, the school staff, and the Supreme Court called such an approach “a slap in the face to those obedient parents who do keep the rules”.
Harsh but fair?
The Supreme Court noted the potentially harsh impact of their judgment: a parent could face a criminal sanction for taking their child out of school without permission for just one day. The Court noted, however, that a parent could avoid the criminal courts if they paid the penalty demanded of them (in cases where a penalty notice is served prior to prosecution). Moreover if a prosecution were brought for a minor absence, the magistrates’ court could always impose an absolute or conditional discharge rather than imposing a harsher penalty
It is abundantly clear from the judgment that the Supreme Court was keen to avoid giving a green light to parents to flout the rules and take their child out of school in order to save money on flights and hotels. Almost certainly, if the judgment had gone the other way, there would have been an increase in the number of parents taking their children out of school during term time for cheaper holidays, so the Supreme Court’s concern is difficult to fault.
However in construing the legislation in the way that it did, perhaps the Supreme Court stretched the language of the legislation further than it could sensibly go. The intention of the legislation in question (and its predecessor, the Education Act 1944) seems to be to prevent truancy because of its potential impact on the education and life chances of the child in question. Whether Parliament really intended that a parent could be guilty of a criminal offence because of one day’s unauthorised absence in an otherwise spotless attendance record is certainly debatable.
If Parliament had intended that a single absence should give rise to criminal liability, one has to ask why the legislation was worded so that the offence is committed where a child fails to attend “regularly”; if Parliament had intended an offence to be committed by a single absence, the word “regularly” could have been left out altogether so that section 444(1) simply read that an offence is committed where “a child fails to attend at school”.
Most parents, and the courts, will of course rely on the good sense and judgment of local authorities not to expend their time and resources on pursuing parents whose children have only missed a short period of school. And of course for many parents, the savings to be made by taking a holiday during term time will be seen as worth paying a £60 penalty notice for.
Whilst the Supreme Court’s reluctance to make it easier for parents to take their children out of school during term time is understandable (perhaps even commendable), the interpretation which the Court had to place on the legislation in order to achieve that result is open to question. Something for lawyer parents to think about during the upcoming holidays perhaps – during permitted dates only of course.
Alexander Campbell is a barrister at Arden Chambers. He can be contacted on 020 7242 4244 or This email address is being protected from spambots. You need JavaScript enabled to view it..
