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IntroductionPurchase_M_145391

A parent who fails “to secure regular attendance of a pupil at a registered school” is guilty of a criminal offence under the Education Act 1996, s 444. This statutory offence, which has existed in various forms since the passage of the Education Act 1944, has generated heated controversy both inside and outside the judicial system. One of the key issues is: what is “regular” attendance? According to a unanimous Supreme Court, it is attendance at all times “in accordance with the rules prescribed by the [particular] school”.

Background

Few people would demur from Parliament’s acknowledgement of the vital importance of education. However, controversy stems both from the very character of the offence – the notion that it intrudes improperly on parental rights – and from the fact that it is an offence of strict liability – the prosecution does not need to prove that the parent acted in any way unreasonably in failing to secure the child’s attendance at school (see Islington LBC v D [2011] EWHC 990 (Admin)) or even that the parent knew about the absence (see Crump v Gilmore (1969) 68 LGR 56).

There are a number of defences, including “sickness or unavoidable cause”, religious observance, and a failure by the local authority to comply with its duty to arrange suitable transport for pupils. However, the courts have tended to interpret the offence fairly widely and the defences fairly narrowly. For example, it has been held that late attendance for a school “session” may count as non-attendance (Hinchley v Rankin [1961] 1 WLR 421) and that the fact that a child had run away from home to live with her boyfriend, without informing her mother where she was, did not provide the mother with a defence (Bath and North East Somerset DC v Warman [1999] ELR 81). Both of these authorities were cited with apparent approval in Baroness Hale’s leading judgment in the Supreme Court: see paragraphs 20 and 30.

The latest wave of protest concerns unauthorised holidays. Absence from school with “leave” does not count as an absence for the purposes of s 444 and, at one time, it was not uncommon for head teachers to allow a limited number of days absence per year for parents to take their children away on holiday. However, that is no longer the case, in significant part because the Education (Pupil Registration) (England) (Amendment) Regulations 2013, reg 2 makes clear that such leave should be granted only in “exceptional circumstances”. However, not all parents agree with this policy and – as this case exemplifies – some continue to take their children away on holiday during term time.

In 2015, there were 19,920 prosecutions under s 444 in England and Wales, of which 14,890 resulted in guilty verdicts. Sentences varied from an absolute discharge (in 306 cases) to fines (in 11,495 cases, with an average fine of £176), to custodial sentences (in eight cases).

The facts

Mr Platt was refused permission to take his daughter, M, on holiday during term time. He took her anyway, as a result of which she missed 14 school sessions between 13 April 2015 and 21 April 2015. The local authority issued a penalty notice, which Mr Platt refused to pay. Accordingly, the local authority brought proceedings before the magistrates’ court, alleging that Mr Platt had violated the Education Act 1996, s 444(1) on those dates. The difficulty with the prosecution was that, aside from this period, M’s attendance was good. Her overall attendance during the 2014-15 school year was 90.3%; this was within the range which the school apparently considered to be satisfactory attendance.

Accordingly, the magistrates accepted a submission of no case to answer: despite the unauthorised absence, overall M had attended school regularly. At the request of the local authority, the magistrates stated a case for the Divisional Court, asking whether they were wrong to look at the wider picture as opposed to confining their consideration to the dates set out in the summons.

The Divisional Court had little difficulty in answering the case stated in the negative. Relying on the earlier decision in Bromley LBC v C [2006] EWHC 1110 (Admin) [2006] ELR 358, the court held that the question as to whether there has been regular attendance is a question of fact and degree in each case. An unauthorised holiday does not, in itself, necessarily give rise to irregular attendance and this issue need not be assessed solely by reference to the period of absence specified in the summons. As the Divisional Court rightly noted, if that were the correct approach, a local authority which adopted the device of limiting the summons to the period of absence would win every case, even if the child had been absent for only one day.

Part Two is here.