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The Supreme Court judgmentPurchase_M_145391

Baroness Hale gave the only judgment. Lords Neuberger, Mance, Reed and Hughes agreed with it.

Baroness Hale observed that it appeared to have been assumed in the earlier cases, and in the Divisional Court judgment in this case, that “regularly” meant “sufficiently frequently”. At first blush, there is indeed a lot to be said for this approach. However, Baroness Hale concluded that this could not have been Parliament’s intention, for eight reasons.

  • First, she set up a contrast with a “regular” at a pub or at a church and observed that attendance at school was different.
  • Second, prior to the Education Act 1944, the law was that a parent had to secure a child’s attendance at all times in accordance with the byelaws (if any), and Baroness Hale thought that Parliament could not have intended to relax those previous obligations.
  • Third, the restricted defences which were available under the statute suggested that there was an intention to tighten parental liability.
  • Fourth, the specific exception for absence on a day set down for religious observance suggested that absence for even one other day would be an offence.
  • Fifth, there was a defence in s 444(6) which enabled the child of a parent with an itinerant trade to escape liability if the child attended “as regularly as the nature of that trade or business permits”, which suggested that regularly means as often as possible and, further, that when Parliament wanted to indicate what was sufficiently frequent it could do so.
  • Sixth, a child at a boarding school is to be treated as having failed to attend regularly if he is absent without leave during any part of the school term unless with consent or for unavoidable cause: s 444(7).
  • Seventh, the new s 444(7A) proceeds on the basis that absences are to be counted by the day.
  • Eighth, if an offence were to be committed unless attendance were “sufficiently frequent”, this would be too uncertain: the parent could not know whether an absence on any given day amounted to commission of the offence or not.
  • Ninth, consistent school attendance is very important.
  • Tenth, it is unlikely that Parliament would have countenanced blatant breaches of school rules by parents.

Accordingly, Baroness Hale concluded that attending “regularly” meant attending “in accordance with the rules prescribed by the school”. She considered the fact that Parliament had expressly excluded absence with the permission of the school (which might be said to be otiose on this interpretation of “regularly”), but thought that this should be seen as an exception in a particular case to normal school rules. Further, although Parliament used the term “regularly” in s 444 compared to “full-time” in s 7 of the same Act, which might be said to indicate a difference of meaning, she thought the two fell to be read consistently.

Some of the reasons relied on by the Supreme Court are perhaps more convincing than others. Indeed, several of them could be said to present compelling arguments in favour of “regular” meaning “sufficiently frequent”. Nevertheless, it is doubtless true that the interpretation favoured by the Supreme Court has the advantage of clarity and of promoting the educational advancement of children.

The judgment does mean that, subject to individual consent being granted and to the statutory exceptions, all will turn on the rules relating to attendance at the particular school. No doubt, in most cases, these rules will be clear enough to avoid the uncertainty in the law which so concerned the Supreme Court, but it is not fanciful to imagine there might be uncertainties in some cases: schools accordingly need to take care to make their rules on attendance clear.

The Supreme Court’s approach also means that a parent will commit a statutory offence for what might be the most trivial of lapses: it really does now appear that the parents of a child who arrives to school late on one occasion commit a criminal offence. However, as Baroness Hale noted, there are other examples of comparable offences – driving at 31 miles per hour in a 30 mile per hour speed zone is one – and she thought that the answer in such cases is sensible prosecution policy. One can only hope that local authorities will take heed.

In any event, this was not a case in which the Supreme Court considered it appropriate to let Mr Platt off the hook, even though the local authority took a neutral position. M’s school required her to be in attendance on the days when she was on holiday. He had taken her nonetheless in defiance of those rules and without consent. Accordingly, subject to his establishing one of the statutory offences (which, on the facts, he plainly would not have been able to do) he had committed the statutory offence. Moreover, M’s mother had paid the penalty when she had been issued with a penalty notice for the same thing, and that she might feel a sense of injustice if the case against Mr Platt did not proceed. Accordingly, the case was remitted to the magistrates with a direction to proceed as if the submission of no case to answer had been rejected. In the event, Mr Platt was given a conditional discharge and ordered to pay £2,000 in costs and a £20 surcharge.

Part One is here.