Some Further Thoughts On Holiday Term Time

25 Apr

“There is no doubt that, before the 1944 Act, a parent was liable to conviction if his child failed to attend for a single day or half day when required to do so. Most of the case law, both before and after that Act, was concerned with the scope of the statutory exceptions or excuses. But the introduction, in 1944, of the phrase “fails to attend regularly” raised the possibility that this was no longer the law.”

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Some further thoughts on … Holidays in term time

In my blog on “Some thoughts on … Holidays in term time” last July, I wrote, in respect of the widely-publicised case of Isle of Wight Council v. Platt [2016] EWHC 1283 Admin.] that:-

“However, is there not a good public policy argument for legislatively discouraging term time holidays? A child taken out of class during term time is missing out on whatever is being taught to the rest. Upon his / her return, that child is behind in those subjects missed. Either that child is likely to have permanently missed out on what has been taught in absence - hardly of benefit to that child - or the class will have to go over the same material again (in place of learning something new) to allow the holidaymaker to catch up - hardly fair, or, in the great scheme of things, of benefit to those other children. That child's absence will be disruptive either way ... In essence, isn't the removal of a child during term time for really the benefit of that child's parents' bank balance ultimately rather selfish?

And I concluded:-

“However, as I write, quite possibly any opinions expressed above are (potentially) wildly wide of the mark: last Thursday it seems Lloyd-Jones LJ, certified a point of law of public importance was involved and it appears that IOWCC v. Platt may yet end up before the Gods on Olympus?

Watch this space …”

Well, the Gods (& Goddess, in the form of the Vice President (of the SC), Lady Hale) on Olympus (well, the Supreme Court [1]) have now considered the case of Platt, and have handed down their considered view at [2017] UKSC 28. I am flattered to see that clearly my blog had a wider audience than I realised at the time, as Lady Hale, considering various interpretations of the word “regularly” (in the context of attendance at school) commented:-

“It is not just that there is a clear statistical link between school attendance and educational achievement. It is more the disruptive effect of unauthorised absences. These disrupt the education of the individual child. Work missed has to be made up, requiring extra work by the teacher who has already covered and marked this subject matter with the other pupils. Having to make up for one pupil’s absence may also disrupt the work of other pupils. Group learning will be diminished by the absence of individual members of the group. Most of all, if one pupil can be taken out whenever it suits the parent, then so can others. Different pupils may be taken out at different times, thus increasing the disruptive effect exponentially.”

Following the Magistrates Court hearing, the Magistrates stated a case in the following terms:-

“Did we err in law in taking into account attendance outside of the offence dates (13th April to 21st April 2015) as particularised in the summons when determining the percentage attendance of the child?”

On 13 May 2016, the Divisional Court (QBD) said “no”: the magistrates had not erred in taking into account the child’s attendance outside the absent dates in determining the percentage attendance of the child. Subsequently (on 30th June) the Divisional Court certified a slightly different point of law of general public importance, pursuant to section 1 of the Administration of Justice Act 1960. The certified question was:-

“Whether, on an information alleging a failure by a parent over a specified period to secure that his child attends school regularly contrary to section 444(1) of the 1996 Act, the child’s attendance outside the specified period is relevant to the question whether the offence has been committed [2].”

The key word in section 444(1) is “regularly”, and what exactly it means. As previously commented upon, section 7 of the Act gives a practical as well as (the only?) statutory example of parental responsibility, providing, as it does [emphasis added], for the "Duty of parents to secure education of children of compulsory school age", namely that: "The parent of every child of compulsory school age shall cause him [her] to receive efficient full-time education suitable — (a) to [her] age, ability and aptitude, and (b) to any special educational needs he [she] may have, either by regular attendance at school or otherwise."

After a review of the legislative history from 1870-1944 (@ paragraphs 8-14), and then 1944 to date (@ paras. 15-22), and after citing London Borough of Bromley v C ([2006] EWHC 1110 (Admin), [2006] ELR 358), and then Crump v Gilmore ((1969) 68 LGR 56), at paragraph 23, Lady Hale commented that:

“There is no doubt that, before the 1944 Act, a parent was liable to conviction if his child failed to attend for a single day or half day when required to do so. Most of the case law, both before and after that Act, was concerned with the scope of the statutory exceptions or excuses. But the introduction, in 1944, of the phrase “fails to attend regularly” raised the possibility that this was no longer the law.”

Where, in Crump v Gilmore, the case was bought under section 444(1) of the Act, the Divisional Court remitted the case back to the Magistrates Court with a direction to convict for what was (and remains) an absolute offence (in contrast to the more serious offence under section 444(1A) which – potentially – attracts a prison sentence), Lady Hale expressed the view that that case provided support for the idea that the use of the word “regularly” was, by then, it seems, interpreted as meaning that “regularly” meant “sufficiently frequently” [@ 26].

In conclusion, Lady Hale stated that [@ 48 onwards]:-

“I conclude, therefore, that in section 444(1) of the Education Act 1996, “regularly” means “in accordance with the rules prescribed by the school”. I would therefore make a declaration to that effect. To the extent that earlier cases, in particular, Crump v Gilmore and London Borough of Bromley v C, adopted a different interpretation, they should not be followed.”

The Supreme Court directed that [@ 49] that the case was to be returned to the magistrates with a direction to proceed as if Mr. Platt’s submission of no case to answer had been rejected.

Query, has this decision returned the law to something akin to the old law – if a child is not in school for a day, for reasons not “in accordance with the rules prescribed by the school”, is not that child failing to attend “regularly”, given what we now know “regularly” means …?

What will happen at the Newport (IOW) Magistrates Court remains to be seen (and will, no doubt, generate an article or two in the Isle of Wight County Press which, I think, publishes every Friday, if you are after a copy). As before, watch this space …?

 

TIMOTHY COMPTON



[1] In the form of Lord Neuberger, President, Lady Hale, Deputy President, Lords Mance, Reed & Hughes. The only speech was delivered by Lady Hale, with whom the others all agreed. Heard on 31st January, the decision was given on 6th April 2017.

[2] Section 444(1) provides that “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.”

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