McHale & Co. Solicitors Blog

No fine for Term-Time Holiday if Attendance at School is Regular

A recent case in the news concerning a parent who managed to get a £120 fine for taking his daughter on holiday during term time overturned has once again thrown the policy of prosecuting otherwise law-abiding parents into the spotlight. (See http://www.theguardian.com/education/2015/oct/16/father-overturns-120-fine-taking-daughter-term-time-holiday )

The gentleman, Jon Platt, from the Isle of Wight, was fined £60 for taking his daughter out of school on holiday during term time.

He refused to pay the original fine which was doubled and resulted in a court appearance. The matter was dismissed by the magistrates when it was pointed out by Mr Platt that there was no law which he had broken because he had ensured her regular attendance at school.

The law referred to is contained in The Education Act 1996. Section 7 of the Act imposes a duty upon parents of a child of ‘compulsory school age’ to secure the ‘regular attendance’ of that child ‘at school or otherwise’.

Failure to do so, unless certain defences apply (for example the child is absent through sickness) constitutes an offence contrary to section 444(1) or 444(1A).

To avoid bringing parents to court two new provisions were brought in (sections 444A and 444B, inserted by the Anti Social Behaviour Act 2003) which effectively give schools and local authorities (as well as the police) the power to issue penalty notices instead.

These provisions came into force in 2004, with head teachers permitted to grant leave of up to ten days’ authorised absence for family holidays. However, this changed in September 2013 when the government removed this provision so that leave could only be granted by head teachers in ‘exceptional circumstances’.

What constitute ‘exceptional circumstances’ are at the discretion of the head teacher, but it is acknowledged in guidance issued to them by their union the NAHT in October 2014 that the principles they are to be guided by when considering whether the circumstances are indeed exceptional are that the request be for an event which is ’rare, significant, unavoidable and short ‘. Holidays are deemed to fall outside this interpretation of the rules.

But Mr Platt was not arguing that his case fell within the exceptional circumstances ambit; rather that the local authority could not prove that he had failed to secure his daughter’s regular attendance at school. Mr Platt had argued that even when taking into account his daughter’s holiday, her attendance for that school year was 94%. It had otherwise been 100%. He also pointed to his children’s academic progress and results which he said were ‘outstanding’.

It is not clear from the report what the Isle of Wight Magistrates’ Court held to be ‘regular attendance’, as there is also no statutory definition – it is likely that it looked at all the circumstances of the case as a whole. Certainly, it considered 94% attendance to be regular enough on this occasion. It must also be noted that its decision is not binding on other courts.

Incidentally, since September 2015, the government has changed its threshold for the definition of ‘Persistent Absence’, applying it to children whose level of attendance is 90% or less. It had previously been 85%. Using the 90% threshold as a starting point, would 94% be considered as regular attendance?

If you are faced with the prospect of a penalty notice or prosecution over your child’s attendance at school, contact us now at mch@mchaleandco.co.uk or on 0161 928 3848.

Categories: Criminal Defence

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