Parents of school-age children know all too well that family holiday prices have a tendency to sky rocket during school holiday periods. Most also know, or thought they did, that they could be fined if they took their children out of school, without good reason. So there was huge public interest in the recent case of a father who refused to pay the fine for taking his daughter on an unauthorised term-time holiday and won his case. But the law on this issue is now confused and confusing for parents and teachers and in urgent need of reform, argues Neville Harris.
The recent decision in the case of Isle of Wight Council v Platt is still reverberating around the education world. The High Court held that magistrates had been entitled to find that Mr Platt, who
in April 2015 had taken his daughter (M) out of school for a family holiday for seven school days (or 14 school sessions) without the permission of the school, had no case to answer when charged with the offence under section 444(1) of the Education Act 1996 of failing to ensure the regular attendance of his child at school. This was because M’s school attendance had been at a sufficiently high level during the preceding months to be considered ‘regular’. The prosecution of Mr Platt had followed his failure to pay the £120 fine issued by his local authority, Isle of Wight Council. Lord Justice Lloyd Jones and Mrs Justice Thirlwall are widely believed to have given something akin to a carte blanche to parents who want to remove their children from school during term-time without the school’s permission in order to take them on a family holiday without incurring the premium costs of an out of term trip. Over the weekend following the court’s ruling there was reportedly a doubling of bookings for family holiday bookings for dates within the summer term.
A general justification defence?
It was clear from an earlier decision, London Borough of Bromley v C, that there is no general defence of ‘justification’ for an unauthorised absence contrary to s.444(1): only if one of the statutory
excuses (such as absence for a day of religious observance or due to ‘sickness or unavoidable cause’) applies can the absence be discounted. Justification only comes into play where the separate, more serious, offence under s.444(1A) is concerned. That offence is committed when the parent knows the child is truanting and fails ‘without reasonable justification’ to ensure he or she attends regularly. A charge of that offence appears not to have been laid against Mr Platt. Even if it had been, and reasonable justification was accepted, it would not affect the magistrates’ option of conviction under s.444(1) notwithstanding acquittal under s.444(1A). For the purposes of the s.444(1) offence, the fact that justification cannot be a defence would mean that, for example, any arguments
by the parent regarding the educational or other benefits to the child or family arising from holiday could almost certainly not prevent conviction.
Attendance: how much is enough?
So the Isle of Wight decision turned on whether or not there was regular attendance and whether regular attendance should be judged not with reference to the period when absent from school but over a longer period. The court did not indicate precisely what period should be taken into account for such purposes. However, referring to the fact that M’s attendance record from the start of the 2014-15 academic year to 7 July 2015 had been placed before the magistrates, Lord Justice Lloyd Jones (giving the court’s judgment) said that ‘the magistrates correctly had regard to that wider picture’. In Bromley the matter was judged with reference to a period of 40 school days – eight school weeks. In that case the court concluded that the unauthorised absences of each of the parent’s three children for a total of nine school days per child over that period meant that their attendance could not rationally be considered regular. Sullivan J nevertheless concluded that the question of whether there was regular attendance was ‘very much one of fact and degree in each case’.Moreover, Auld LJ noted that there was a ‘generous ambit of judgment’ held by magistrates on the matter.
But might regular attendance legitimately be judged with reference to a shorter period? In Hinchley v Rankin  1 All ER 692, for example, decided much earlier under the equivalent provision in the Education Act 1944, the prosecution and conviction related to the level of absence during a six week period. Now it is true that the key issue in that case was whether attending late could prevent someone from attending regularly, and the court indicated that it could. In the Isle of Wight case LordJustice Lloyd Jones was unpersuaded of the relevance of Hinchley and refused to consider it further. But perhaps she was too dismissive of Hinchley, for in his judgment in that case Parker LJ said: ‘[W]hen the Education Act, 1944, is providing for full-time education and regular attendance for that purpose, it must be regular attendance for the periods prescribed by the person on whom the duty to provide the education is laid.’ Of course one can argue that ‘periods’ may be taken to refer to times rather than days, given the particular context of the case. On the other hand, days are also prescribed by schools for pupil attendance. Perhaps therefore ‘regular’ may not have been intended to refer to frequency of attendance but to attendance as prescribed by the school or local authority?
Although it was argued for the local authority in the Isle of Wight case that the period of absence itself should be the relevant period, so that one would question whether attendance was regular during it, this was dismissed by the High Court. The court commented that if the local authority’s view was correct prosecution would be possible under s.444(1) ‘in respect of an authorised absence from school without lawful excuse of one day by limiting the period of irregular attendance alleged in the information (the particulars as to the alleged offence) to that one day’. Yet it hardly seems likely that a local authority would be likely to bring a prosecution for such a minor breach.
Account should perhaps also be taken of the statutory excuse for non-attendance in s.444(3) related to religious observance: ‘The child shall not be taken to have failed to attend regularly at the school by reason of his absence from school… on any day exclusively set apart for religious observance by the religious body to which his parent belongs’. A question arises as to why such an excuse would have been necessary to include in the section in relation to absence for one day if such absence would not in itself mean attendance was not regular? Of course, one could simply infer that such a day should be discounted from the period of absence before that period is judged to be sufficient to prevent the attendance from being regular, but it is not clear from a reading of the provision that that is necessarily correct.
There is also a question about the level of attendance that would sufficient for it to be ‘regular’? Some have suggested that 90% is the threshold, based on the Department for Education’s definition of ‘persistent absence’, which is defined as being absent from 10% or more of school sessions. But this definition has had, and continues to have, no legal significance – it is merely a benchmark used for policy and statistical purposes. In the Isle of Wight case the child’s attendance rate prior to her unauthorised absence in April 2015 was 95%; it was 90.3% after it. According to Lord Justice Lloyd Jones’ reading of the Bromley decision, the issue of regular attendance was one of ‘fact and degree’ (her ladyship voicing agreement with that approach); and this wider picture of a high rate of attendance meant that the magistrates had been entitled to view attendance as regular. Yet this leaves considerable uncertainty and a significant element of discretion and flexibility in what one would surely expect to be much firmer legal ground.
Where do we go from here?
The Government is meanwhile reported to be considering how to plug the apparent legal loophole that this case has opened up. The law was changed in 2013 to restrict the granting of permission by schools for pupils to be absent for family holidays, by amendment of regulation 7 of the Education (Pupil Registration) Regulations 2006. This change in the law followed a year in which as many as 11.4% of school absences were due to the taking of family holidays. Many parents and schools had, according to the Department for Education (DfE), considered the regulations, as they had stood, to give ‘an automatic entitlement to an annual term time holiday’. The 2013 change meant that leave could only be granted for term-time holidays in ‘exceptional circumstances’. The Department’s guidance subsequently stressed that leave of absence should be considered ‘unlikely… to be granted for the purposes of a family holiday as the norm’.
In the year after the 2013 reform the proportion of school absences that were due to family holidays fell to 8.5%. Recent statistics show that in 2014/15 it fell further, to 7.5%. The amendment therefore appeared to have achieved its objective, to some extent. Now the Isle of Wight decision has shown that further reform is needed if the DfE is to regulate school attendance effectively and maintain its policy of deterrence in relation to unpermitted withdrawal of children for term-time family holidays. One parent has reportedly commenced proceedings arguing that by restricting family holidays the regulations are inconsistent with Article 8 of the European Convention on Human Rights by denying the right to respect for private and family life. While this argument may not ultimately succeed, it will certainly be giving the Department food for thought.
Parents’ arguments for a relaxed approach centre not merely on the extra cost burden of family holidays during school vacations but also on absence of real damage to their child’s education by virtue of being away from school for a week or two. Indeed it is claimed that family holidays can have educational benefits by exposing children to new physical, linguistic and cultural environments. Schools nevertheless complain that these gains do not fully offset lost lessons and that a significant effort is needed on teachers’ part to ensure that individual absentees try to catch up on missed work. Either way, on a matter as important as children’s education, which is rightly the subject of considerable regulation and a right of the child under both the European Convention of Human Rights and the UN Convention on the Rights of the Child, the law is surely now in too uncertain a state – particularly for those responsible for administering it and doing so in a consistent manner.
Apparently, at the request of the Schools Minister, the Isle of Wight Council has now made an application for permission to appeal against the ruling. It will be interesting to see if the High Court’s judgment stands up to the scrutiny it will receive from a higher court and whether greater legal clarity will ensue.
Neville Harris is a Professor of Law at the University of Manchester specialising in Education Law and Social Security Law. He is also co-director of the Manchester Centre for Regulation and Governance (ManReg) and the editor of the Education Law Journal and the Journal of Social Security Law.