The uncertainty of regularity

The Education Act 1996 is a wide ranging piece of legislation, much of which is now repealed, comprising of 583 sections and an additional 40 schedules. Those involved in drafting the Act, more than 20 years ago, probably did not expect that in the future a Supreme Court of England and Wales would need to interpret a single word in section 444(1) in one of the most high profile and controversial legal cases for some time.

Section 444(1) of the Education Act 1996 criminalises the parent of a child of compulsory school age who is a registered pupil at a school who fails to attend regularly at the school. The act did not seek to define “regularly”.

The facts of this case are widely reported. Mr John Platt sought permission from his daughter’s head teacher to remove her from school during term time for a seven day holiday to Disney World in April 2015.  The head teacher refused to authorise the request, but Mr Platt took his daughter on holiday as planned, causing her to miss seven days of school.

The respondent was issued with a £60 fixed penalty notice. He did not pay the fixed penalty and was prosecuted in the Isle of Wight Magistrates’ Court. The magistrates ruled that the respondent had no case to answer, on the basis that his daughter had attended school regularly because including the holiday she had attended 90.3% of the time up to that point in the academic year.

According to a Freedom of Information request made by the Guardian, almost 20,000 people were prosecuted for pupil absence in 2015.  Of the 19,920 people taken to court in 2015, 75% were found guilty, of whom 77% were given fines. A total of eight people were handed jail terms, while 553 were given community sentences.

The Council appealed on the issue of whether the magistrates had been entitled to take into account attendance at school outside the period of the absence. The Divisional Court held that the magistrates were not correct to do so,  but referred a point of law of general public importance on the meaning of the words “fails to attend regularly” (see Legal update, A seven day absence from school does not constitute a child failing to attend regularly (High Court).

The issue in the Supreme Court appeal was the meaning of regularly. The Supreme Court suggested that in this context, regularly had at least three possible meanings:

  • That attendance was evenly spaced at regular intervals.
  • That attendance was sufficiently often.
  • That attendance was in accordance with the rules.

The Supreme Court unanimously agreed that regularly means “in accordance with the rules”. At regular intervals was swiftly dismissed on the basis it would mean attendance at school one day per week is regular even though attendance every day is required by school rules. Sufficiently often, the approach taken by the lower courts in this case, was deemed to be not what Parliament intended.

The Supreme Court made the following points in support:

  • School attendance is compulsory and there are rules about when it is required.
  • The purpose of the Education Act 1944 was to increase the scope and character of compulsory state education and it is implausible to suggest that it was intended to relax the previous obligation on parents to secure their children’s attendance.
  • The defences were tightened in 1944 and the flexibility inherent in a ‘reasonable excuse’ was removed.
  • The exception for absence on a single day for religious observance in section 444(3) would not be needed unless it would otherwise amount to a failure to attend regularly.
  • Provisions for parents with an itinerant trade or business did not suggest that ‘regularly’ was a matter of fact and degree.
  • A boarder fails to attend regularly under section 444(7) if he/she is absent without leave during any part of the school term, and there is no reason why 100% attendance should be required of boarders but not of day pupils.
  • This interpretation is far too uncertain to found a criminal offence. A parent would not know on any given day whether removing the child from school is a criminal offence.
  • There are sound policy reasons for rejecting this interpretation because of the disruptive impact of the absence for the education of the individual child and of the other pupils.
  • It permits an approach to rule keeping which no educational system can be expected to find acceptable.

Consequently, the penalty notice was properly issued to Mr Platt and having not paid the penalty fine, he should have been convicted of the offence unless he could establish one of the statutory exceptions. The case was returned to the magistrates with a direction to proceed as if his submission of no case to answer had been rejected. Mr Platt has publicly indicated he will be pleading not guilty.

Contrary to some reports, the Supreme Court did not make any firm indication that the parents of children taken out of school should be subject to prosecution, but said that it was up to local authorities to determine whether a prosecution was necessary, applying the Code for Crown Prosecutors. Significantly, the Code contains a provision requiring any prosecution to be in the public interest. The Supreme Court suggested that a sensible prosecution policy will allow minor or trivial breaches to be dealt with by the use of fixed-penalty notices, which recognise that a person should not have behaved in this way but is not subject to a criminal conviction unless the penalty is not paid.

Lady Hale expressed clear policy reasons for the judgment, stating that

“Unauthorised absences have a disruptive effect, not only on the education of the individual child but also on the work of other pupils. If one pupil can be taken out whenever it suits the parent, then so can others. Any educational system expects people to keep the rules. Not to do so is unfair to those obedient parents who do keep the rules, whatever the costs or inconvenience to themselves.”

Among the various policy based arguments for and against this judgement, including the rights of parents to make decisions as to their child’s education and seeking to regulate the travel industry, there seems to be an important point missing from any discussion: that “in accordance with the rules prescribed by the school” does not fit any dictionary definition of “regularly”, and simply moves the uncertainty to other areas.

The Department for Education has stated

“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, head teachers 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. 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.”

The uncertainty for parents however remains, as the debate moves on to what is a “good reason” or when “exceptional circumstances” apply. The decision to what constitutes either rests with the headteacher, subject to any government guidance, but with no mechanism of appeal. This is of course a different standard to the public interest test under the Code for Crown Prosecutors. Consequently, parents across the country will be subject to different interpretations of “good reason” (for which we can presume a term time holiday is excluded, but “to attend a funeral overseas”, which may also require a week’s break, may not be). Equally, a child skipping an afternoon’s school without any knowledge of their parent is failing to attend school regularly under the Supreme Court definition, and their parent is subsequently liable for the imposition of a penalty.

It is hoped that the Department of Education will produce some adequate guidance as to what might constitute good reason, exceptional circumstances, along with proportionate use of the fixed penalty system. Without such guidance, the potential for widely differing approaches by different schools is high, with the consequence that almost identical actions could result in a “good reason” decision in one part of the country and criminal prosecution in another.

Practical Law David Bacon

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