Case preview: Isle of Wight Council v Platt
13 Monday Feb 2017
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Introduction
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 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. However, this will be the first time that the nub of the offence – the failure to secure “regular” attendance – will have been considered by the Supreme Court.
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).
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, regulation 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.
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 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 decision
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.
The issues before the Supreme Court
The local authority appealed to the Supreme Court, reportedly at the urging of the Department of Education, which was joined as an interested party. It is difficult to see the Supreme Court allowing the appeal, at least on the basis of the case as stated. However, this will be the first time that the central question of what amounts to regular attendance will have been considered at this level. (The House of Lords has had cause to address earlier iterations of this offence, but through the prism of whether the local authority had complied with its duty to arrange suitable transport to school where necessary: see, for example, Devon CC v George [1989] AC 573.)
Further, a second, more fundamental issue was argued before the Divisional Court, which the court did not need to address. Mr Platt submitted that the notion of “regular attendance” was so vague that it could not legitimately form the basis of a strict liability offence at all. Although, in Barnfather v Islington Education Authority [2003] 1 WLR 2318, the Divisional Court held that the strict liability nature of the offence could not be challenged under Article 6 of the European Convention on Human Rights, that case does not appear to have been argued in this way, and Elias J expressed serious reservations about the fact that the legislation appeared to permit “prosecuting the innocent”. The appeal may be most interesting for what, if anything, the Supreme Court had to say about this issue.