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The Mother’s Holiday

In 2015, a divorced mother applied to her daughter’s school, Bembridge Primary School on the Isle of Wight, to be allowed to take her daughter – subsequently referred to by the court as “Mary” – out of school for a week from 9th February to go on holiday.[1]  The school refused: the rules are clear, absence from school is allowed for sickness and unavoidable cause, for a single day’s religious observance, and for exceptional circumstances.  Holidays do not fall into these categories, and the school was quite within its rights, and its obligations to Mary, to refuse the request.  Section 444 of the Education Act 1996 reads,

(1) If a child of compulsory school age who is a registered pupil at a school fails to attend regularly at the school, his parent is guilty of an offence.

(1A) If in the circumstances mentioned in subsection (1) the parent knows that his child is failing to attend regularly at the school and fails without reasonable justification to cause him to do so, he is guilty of an offence.

(2)Subsections (3) to (6) below apply in proceedings for an offence under this section in respect of a child who is not a boarder at the school at which he is a registered pupil.

(3)The child shall not be taken to have failed to attend regularly at the school by reason of his absence from the school—

(a) with leave,

(b) at any time when he was prevented from attending by reason of sickness or any unavoidable cause, or

(c) on any day exclusively set apart for religious observance by the religious body to which his parent belongs.

(8)A person guilty of an offence under subsection (1) is liable on summary conviction to a fine not exceeding level 3 on the standard scale.

(9)In this section ‘leave’, in relation to a school, means leave granted by any person authorised to do so by the governing body or proprietor of the school.

Nevertheless, the mother took her daughter out of school regardless, and the school contacted the Education Welfare Officer, leading to the local council imposing a fixed fine of £60, which she paid.  Many parents consider these fines – which rise to £120 if not paid within twenty-one days – worth paying in order to benefit from cheaper family holidays.  In the 2015-16 academic year, 147,655 such fines were imposed, raising revenue of £8,859,300.[2]  These statutory fines give parents an opportunity to resolve these cases without going to court, but large numbers of parents refuse to pay them, resulting in some 20,000 prosecutions over the same period.[3]  The courts can impose a maximum fine of £2,500 or a three-month prison sentence.

The Father’s Holiday

At about the same time (the holiday bookings were made on the same day), Mary’s father, Jon Platt, applied to Bembridge Primary School to take his daughter out for a holiday with him from April 12th to 21st, 2015.  Again, quite properly, the school refused (on February 9th) and warned that a fixed penalty notice would apply.  Again, the parent ignored the refusal, and took his daughter to the Disney World resort in Florida.

The school sent a Fixed Penalty Notice Referral Form to the local council’s Education Welfare Officer (EWO), Karen Pothecary, who authorised the issue of the Notice on May 14th, requiring the father to pay £60 by June 4th.  Platt failed to do so and was sent a further Notice, requiring him to pay £120 by June 10th.  When he did not pay this, he was sent a letter before action on July 1st explaining the council’s intention to prosecute.  This time he did react, by email and telephone; the EWO, however, believed that the penalty notice had been correctly applied and proceedings were brought on October 12th in the Isle of Wight Magistrates’ Court.

The Magistrates’ Court Hearing

Platt pleaded not guilty.  The law – given in Section 444(1) of the Education Act 1996 – requires parents to ensure that their children attend school “regularly”, but the word is not defined; there is no specific prohibition in the Act against taking a child out of school for a holiday.  The defence relied on the case London Borough of Bromley v C, [2006] EWHC 1110 (Admin) which concluded that the court should understand “regularly” by taking into account attendance over the whole academic year.  The prosecution argued that the court should only be considering the attendance during the period in question: between April 13th and 24th; there was no attendance during that period and thus the offence was clear.

The Magistrates addressed the question of whether Mary was a “regular attender” at school.  They looked at Mary’s attendance which had been 95% prior to the holiday and was now 90.3% when the holiday was taken into account.  Both figures were within the school’s guidelines of 90-95%, although 90% represents pretty poor attendance; this level of absence, if sustained, will adversely affect a pupil’s academic attainment.  The LA had not established a case that Mary had failed to attend school “regularly”.

The High Court Hearing

The LA appealed, and the case was taken to the High Court.[4]  The question was whether the Magistrates had erred in law by taking into account Mary’s attendance outside of the dates of the holiday.  On 13th May 2016, a Divisional Court of the Queen’s Bench Division decided that the Magistrates had not so erred.  The prosecution also drew attention to the provision of Section 7 of the Education Act which requires,

The parent of every child of compulsory school age shall cause him to receive efficient full-time education suitable —

(a) to his age, ability and aptitude, and

(b) to any special educational needs he may have,

either by regular attendance at school or otherwise.

As we shall see, the wording “full-time” here provides a gloss under which the word “regularly” may be interpreted.

By this time, Platt had extended the services of his company, JMP Partnership, which specialises in PPI recovery, to include advice to parents on taking their children out of school during term time.  I’m no lawyer, but I think his interpretation of the law confuses between statute law and the law established by legal precedent.  The cases he relies on do NOT represent binding precedents.  He advises parents that magistrates must take account of a child’s average attendance over the course of an entire academic year (following Bromley) but, as we shall see, this is not binding.  He relies on a case from 1881 which held that where two or more interpretations of a statutory provision are reasonable, the court must choose the one which results in the lesser penalty.  He also argues that because “nobody REALLY knows what ‘regularly’ means, it is too vague to be the basis of any criminal sanction”; the High Court considered this contention but expressed no view upon it.

The Supreme Court Hearing

Again, the LA appealed, this time with the financial support of the Department of Education, and the case was heard by five judges of the Supreme Court, Lady Hale, Lord Neuberger, Lord Mance, Lord Reed and Lord Hughes who were unanimous in their finding.[5]  Hale’s judgment summarised the events thus far, and confined itself to considering the meaning of the phrase “fails to attend regularly”, examining three possible interpretations.  Without a specific definition of the term in the legislation, the task for the court was to determine what the intention of Parliament had been when incorporating the phrase for the first time into the Education Act 1944.  Giving judgment, Baroness Hale looked first at the history behind the legislation.

History

Section 5 of the Elementary Education Act 1870 imposed an obligation on school districts to provide “sufficient amount of accommodation in public elementary schools” for all the children of the district “for whose elementary education efficient and suitable provision is not otherwise made”.  Forcing parents to make their children available for this education was politically sensitive, however, as many parents were constantly moving in order to find work, and some relied on the income provided by their children.  Section 74, therefore, empowered the school boards to make bye-laws (1) requiring parents of children between five and twelve years of age to cause them to attend school, unless there was some reasonable excuse, (2) fixing the times when children were required to attend school, with two exceptions, one of which was for “any day exclusively set apart for religious observance by the religious body to which his parent belongs”, and (3) imposing penalties for breach.

“Reasonable excuse” included that the child was receiving alternative instruction, that he had been prevented from attending by sickness or some other unavoidable cause and that there was no suitable school within reasonable walking distance, which could be up to three miles.

In 1876, Section 5 of the Elementary Education Act prohibited the employment of children under ten, and of those between ten and thirteen who had not achieved an appropriate standard of education; Section 4 for the first time imposed upon parents a duty to cause their children to be educated in the “three Rs” of reading, writing and arithmetic.  Where parents failed to do this without reasonable excuse, local authorities could apply for court orders requiring the children’s attendance.

Section 2 of the Elementary Education Act 1880 required school boards to introduce bye-laws compelling attendance, though they could set their own timetables.  Many boards fixed the time at “the whole time for which the school selected shall be open for the instruction of children of a similar age”.

In 1918, the school leaving age was raised to fourteen and in 1921 the Education Act consolidated the existing duties of parents and local education authorities.  Case law established that a parent was required to ensure his child attended at all times set out in the bye-laws and that an offence could be committed if a child missed a single day of school, regardless of his attendance at other times.

Hale quoted Lord Hewart CJ in Osborne v Martin (1927) 91 JP 197,

It was never intended that a child attending the school might be withdrawn for this or that hour to attend a lesson thought by the parent to be more useful or possibly in the long run more remunerative.  The time-table and discipline of a school could be reduced to chaos if that were permissible.

The Education Act 1944 extended a parent’s responsibility to have his child educated in the three Rs to ensure that he received “efficient full-time education suitable to his age, ability and aptitude, either by regular attendance at school or otherwise”.  The LEA could issue a school attendance order requiring the parent to register the child at a particular school; failure to comply was an offence.  A statutory offence was also committed if a pupil registered at a school “fails to attend regularly thereat”.  Reasonable excuse for absence was replaced by a finite list: absence with leave of the school, sickness or unavoidable cause (affecting the child, not his parents), a day’s religious observance, and the lack of provision within walking distance where no alternative transport was provided.

The Education Acts of 1993 and 1996 consolidated these provisions; Section 7 of the 1996 Act added to the parent’s duty the requirement that the child’s education must be suited to “any special educational needs he may have”.  Section 444(1) preserved the offence committed where a child fails to attend school “regularly”.  It also introduced at s.444(1A) a more serious offence committed when a parent knows his child is failing to attend and has no reasonable explanation for his own failure to ensure attendance.  The circumstances in which absence is tolerated remained the same.

Sections 444A and B contained the provisions for the penalty notices, offering a parent the opportunity to avoid a criminal conviction by paying a fine.  LEAs were required to draw up their own Codes of Practice for administering these rules; these guidelines had become quite relaxed, with schools commonly allowing absences of ten school days a year, but in 2013, Education Minister Michael Gove issued new guidance reminding schools of their legal responsibilities: schools should allow absence only in exceptional circumstances.

The Court’s Interpretation

Hale observed – as I think is evident – that the movement of the law since 1870 had been to consolidate and tighten existing legislation.  Prior to 1944, a parent was liable to conviction if his child missed a day or even half a day when required to attend; case law was concerned with the scope of the statutory exceptions.  Parents are not obliged to use state-provided education – they can home-school their children or pay to have them educated privately – but if they do take advantage of state provision, they must abide strictly by its rules.

Hale resisted the idea that the introduction of the phrase “fails to attend regularly” signified a change in the existing law or a change of direction by Parliament.

The idea that “regularly” meant “at regular intervals” was easily dismissed: this could cover attendance every Monday, or where lateness was consistent; either was clearly far from Parliament’s intention.

Hale objected to “sufficiently frequently”, an interpretation employed or hinted at in some case law, on ten grounds:

  1. It can cover attendance which is not compulsory and for which there are no laws.
  2. It does not meet the intention of the 1944 Act to increase the scope and character of compulsory state education, it is implausible that Parliament should have wanted to relax the existing provision.
  3. It does not meet the intention of the 1944 Act to enhance parental liability.
  4. The exception to allow a child leave of absence “on any day exclusively set apart for religious observance” suggests the intention that a single day’s absence should justify prosecution.
  5. In Section 444(6), dealing with children of parents of no fixed abode, the requirement to attend “as regularly as the nature of that trade or business permits” does not use the word “regularly” to suggest a matter of degree but to indicate that the child should attend as often as he can.
  6. A pupil at a boarding school is expected to attend 100% of the time with no absence; why should the same not be expected of a pupil at a day school?
  7. In Section 444(7A), the absences of excluded pupils are to be measured by the day.
  8. If this were the interpretation intended by Parliament, it is too imprecise upon which to found a criminal offence, “The point is that, on this interpretation, the parent will not know on any given day whether taking his child out of school is a criminal offence”.
  9. (The reason the Secretary of State had intervened in the case) there are strong policy reasons why such an interpretation will not wash: unauthorised absences disrupt the education of the individual child and of the whole class in group learning. Teachers are expected to undertake additional work in enabling the absent pupil to catch up, perhaps to the detriment of the other pupils.  If all pupils in a class are liable to be taken out whenever it suits the parent, structured education becomes impossible.
  10. Finally, it is absurd to imagine that Parliament would have countenanced the removal of pupils during term-time either without authorisation or where authorisation has expressly been refused; “It is a slap in the face to those obedient parents who do keep the rules, whatever the cost or inconvenience to themselves”.

The only possible interpretation, therefore, as Martin Chamberlain QC for the Isle of Wight Council argued, is that the word “regularly”, from the Latin regula = rule, should be understood to mean “in accordance with the rules”.

  • Such a principle, Hale maintained, in conjunction with a “sensible prosecution policy”, such as the use of fixed penalty notices, justifies a situation where a relatively minor breach can lead immediately to criminal liability. The parent has two opportunities to avoid prosecution and a court can use its discretion to discharge the offence.
  • Prior to 1944, there was no objection raised to dealing with unauthorised school absence in this way; it was recognised that the importance of a child’s education justified a strict approach.
  • It is important that legislation which imposes criminal liability should do so in a way which enables everyone to know where they stand; Hale’s interpretation is the only one of the three which satisfies this requirement.
  • A school or governing body is empowered with the discretion to allow a child leave of absence in exceptional circumstances other than sickness and unavoidable cause, but where a school has decided that the circumstances are not sufficiently exceptional, only this interpretation is consistent with the provisions of Section 444(3)(a) and (9).
  • Section 7 of the Act requires a parent to cause the child to receive “full-time” education; that is, for the whole of the time when education is being offered to children like the child in question. Section 444 must be seen to work in harmony with this provision.

Hale concluded that “regularly” means “in accordance with the rules prescribed by the school”, and directed that the case should be returned to the magistrates with a “direction to proceed as if [the father’s] submission of no case to answer had been rejected”.  The consequence of this is that Platt, who has already spent £12,000 on the case, may well be required to pay the council’s costs as well.

Reaction

Needless to say, the decision has split opinion.  Prime Minister Theresa May approved,

What the Supreme Court has done is endorse the current position, which is right, which is that we recognise – and they’ve recognised – the importance of children being in school and getting the most out of their education but also recognise that there may be exceptional circumstances where a child needs to be taken out of school during term time and it’s right that the individual headteacher has that flexibility to make that decision.  I think that is the correct balance.[6]

Shadow education secretary Angela Rayner endorsed her view,

…If all parents took their children out of school in term-time because it was cheaper to get a holiday that way, then it would be chaos in our schools and it would affect all children.[7]

The Department for Education said,

We are pleased the Supreme Court unanimously agreed with our position: that no child should be taken out of school without good reason.  As before, headteachers have the ability to decide when exceptional circumstances allow for a child to be absent but today’s ruling removes the uncertainty for schools and local authorities that was created by the previous judgment.

The evidence shows every extra day of school missed can affect a pupil’s chances of achieving good GCSEs, which has a lasting effect on their life chances.

We will examine the judgment carefully and will update schools and local authorities as soon as possible so they are clear what the judgment means for them.[8]

Perhaps surprisingly, teachers’ groups were more equivocal; Kevin Courtney, general secretary of the National Union of Teachers, said,

Parents generally do all they can to keep children in school and teachers want them to do that.  However there will be occasions when families will have a planned holiday in term time – this can be for a many reasons such as family commitments or parents unable to take leave in the school holidays.

Fining parents is entirely the wrong route to be going down.  Many parents will be able to afford the fine and it will not be a deterrent.

This is yet another example of top-down measures being imposed on schools causing unnecessary tensions between head teachers and families.[9]

This misses the point that the fine is a way of avoiding prosecution; it is also strange that a policy which has been in place for a very long time is only now being questioned by the NUT.

Malcolm Trobe, Interim General Secretary of the Association of School and College Leaders expressed a view more sympathetic to the needs of both children and teachers,

It is vitally important that children attend school as close to 100 per cent of the time as possible.

Research clearly shows that even short breaks can have a detrimental impact on educational attainment.  Holidays should be taken in the 13 weeks that are allocated for that purpose each year, not in term time.

We were pleased that the Supreme Court also highlighted the fact that children missing school can be disruptive.  Teachers have to help these children catch up and the more pupils who are absent the greater the disruption.[10]

Legal commentators have observed that the case will inevitably lead to more prosecutions given that there is now no room for argument over whether a child has attended regularly; hence Hale’s call for a “sensible prosecution policy”.  Others welcomed the decision for establishing absolute clarity and for its fairness to the majority of parents who are prepared to toe the line.  They have called on the Department for Education to update the guidance given to schools as a matter of urgency.  Parents who still wish to withdraw their children for a holiday can do so on payment of a modest charge, which is a policy which may need revisiting.

Platt himself was unrepentant, insisting that he had “no intention” of pleading guilty when the case returns to the Magistrates’ Court and encouraging his supporters to vote out councillors who take a hard line on the issue.  He said,

The issue is no longer if it ever was about term-time holidays, it is about the state taking the rights of parents away when it comes to making decisions about their children.[11]

But again, this misinterprets the legal position, which is that parents have an obligation to ensure that their children receive education and attend school at all of those times during which education is provided for their particular child.  They have the right to take their children out of school and educate them at home or to opt out of the state system and send them to private schools, but they do not have the right, once they have accepted the provision of free state education, to disrupt their children’s education, and that of other children in the school, or to impose on teachers hours of extra work to help their child catch up.  Platt’s unfortunate daughter missed out on twelve days’ schooling in a single term, purely so that her parents could benefit from cheaper holidays.

Jon Platt and his supporters represent a modern breed of parent who has no respect for education, for teachers, for the law.  They teach their children that school doesn’t really matter, and they kid themselves that their children will learn more in a week at Disney World than in a week at school.  The high cost of holidays they complain about is a separate matter which should not be resolved through disruption to children’s schooling.

They run their lives according to what they believe to be their “rights”, with not a thought for what might be their responsibilities: to their children, to their children’s schools, to society more widely.  Rather than work as responsible adults to fulfil their obligations to their community, they are constantly seeking new rights which they can claim have been breached.  For them, free state education is not an extraordinary opportunity, historically and geographically rare, which should be embraced fully and conscientiously; instead, it is yet another entitlement, to be used or abused as they desire.  These are not the sort of parents who will offer their support to their children’s schools, offering to help organise events or outings, to join the PTA, to assist with transport.  Instead, they see the school as an extension of the state, to be challenged and humbled.  The message Platt is instilling in his daughter is “me, me, me” and everyone else be damned.

 

[1] These details are derived from Isle of Wight Council v Platt [2017] UKSC 28

[2] Campbell, P. (2017, April 07). Jon Platt Faces Defeat Over Term-Time Fines Court Battle. Retrieved from http://www.simpsonmillar.c.uk.

[3] Ibid.

[4] Isle of Wight Council v Platt [2016] EWHC 1283 (Admin)

[5] Isle of Wight Council v Platt [2017] UKSC 28

[6] Pells, R. (2017, April 06). Jon Platt case: School leaders welcome Supreme Court term-time holiday ruling. The Independent.

[7] Ibid.

[8] Yorke, H., & Mendick, R. (2017, April 06). Parents who took advantage of cheaper term-time fares prior to Supreme Court ruling could now be prosecuted. The Telegraph.

[9] Op. Cit. Pells, R. (2017, April 06).

[10] Ibid.

[11] Ibid.

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