Council wins Supreme Court appeal over unauthorised school absence

The Supreme Court has unanimously allowed the Isle of Wight Council’s appeal in a high-profile case on unauthorised school absence where a father took his daughter to Florida without permission from her headteacher.

The central issue in Isle of Wight Council v Platt [2017] UKSC 28 was the meaning of the word ‘regularly’ in section 444(1) of the Education Act 1996.

The section states that if a child of compulsory school age ‘fails to attend regularly’ at the school where he is a registered pupil, his parents are guilty of an offence.

Lady Hale, Deputy President of the Supreme Court, said ‘regularly’ had three possible meanings in the section: it could mean (a) evenly spaced; (b) sufficiently often; or (c) in accordance with the rules.

The background to the case was that Jon Platt, the respondent, had sought permission from his daughter’s headteacher to remove her from school during term time for a holiday to Florida.

The headteacher refused his request but Mr Platt took her on holiday anyway. The girl missed seven school days in April 2015.

The Isle of Wight Council issued Mr Platt with a fixed penalty notice but he refused to pay. The local authority then prosecuted him in the Isle of Wight Magistrates’ Court.

The magistrates ruled that Mr Platt had no case to answer. They concluded that his daughter had attended school ‘regularly’ because, even after taking the holiday into account, she had attended 90.3% of the time up to that point in the academic year.

The local authority appealed over whether the magistrates had been entitled to take into account attendance at school outside the period of the absence. However, the Divisional Court (Lord Justice Lloyd Jones and Mrs Justice Thirlwall) found in Mr Platt’s favour.

The Isle of Wight Council appealed to the Supreme Court, after receiving a request to do so from the Department for Education.

A five-judge panel of the Supreme Court – comprising Lord Neuberger, Lady Hale, Lord Mance, Lord Reed and Lord Hughes – has now allowed the Isle of Wight’s appeal.

Lady Hale, giving the judgment of the court, said the history of the law preceding section 444(1)'s introduction showed that before 1944 it was well established that the offence of failing to cause a child to attend school without a reasonable excuse could be committed by a single day’s absence.

The Education Act 1944 replaced the concept of reasonable excuse with a closed list of circumstances in which absence was permitted, and provided that the offence would be committed if the child failed to attend school ‘regularly’. This provision was reproduced in the Education Act 1993 and is now found in s 444(1) of the 1996 Act. The penalty notice regime is an alternative to immediate prosecution and offers a parent the opportunity of escaping liability to conviction by paying the penalty.

Lady Hale said the question for the Supreme Court was which meaning of the word ‘regularly’ was intended by Parliament when enacting s 444(1).

She said it plainly was not ‘at regular intervals’ as this would mean attendance at school once a week was regular even though attendance every day was required by the rules.

‘Sufficiently frequently’ was the meaning assumed in some earlier cases, and in the lower courts in this case, but there were many reasons to think that this was not what Parliament intended in 1944 or in 1996, the judge said.

These included:

  • School attendance is compulsory and there are rules about when it is required.
  • The purpose of the 1944 Act was to increase the scope and character of compulsory state education and it was 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 s 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 failed to attend regularly under s 444(7) if he was absent without leave during any part of the school term, and there was no reason why 100% attendance should be required of boarders but not of day pupils.
  • This interpretation was 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 were 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 permitted an approach to rule keeping which no educational system can be expected to find acceptable.

Lady Hale said these reasons also pointed towards the correct interpretation of ‘regularly’ being ‘in accordance with the rules’.

The judge added that a sensible prosecution policy would allow minor or trivial breaches to be dealt with appropriately. This was not thought to be a problem under the pre-1944 law, she added.

Lady Hale said the rule that statutes imposing criminal liability must enable everyone to know what was and was not an offence was important. This interpretation was consistent with the provisions excepting from the scope of the offence a child absent with the leave of the school, and with the obligation on parents to cause their child to receive ‘full-time’ education under section 7 of the 1996 Act.

The Supreme Court judge said that, accordingly, 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  therefore returned to the magistrates with a direction to proceed as if his submission of no case to answer had been rejected.

Speaking outside court, Mr Platt said: “I followed the law precisely, as laid down and interpreted by High Court judges in two different cases from 1969 and 2006. They told me that to attend regularly was to attend very frequently, so I decided not to pay a £60 penalty notice because my daughter had otherwise perfect attendance at school.

“The decision of those High Court judges from 1969 and 2006 informed that decision but here I stand outside the Supreme Court having just been told that I was wrong to rely on the decisions of those High Court judges to guide me on the law.

“With this judgment those precedents have been swept away and the consequences can only be described as shocking. To attend regularly no longer means to attend frequently. It now means to attend on all the days and at all the times that the school requires it. Every unauthorised absence, including being a minute late to school, is now a criminal offence.

“If you share custody of your child as I do with a former partner and they are late to school on a day when you don’t have them, you have committed a criminal offence under this judgment.

“If you decide to keep your child off school for a day because they have woken up in the morning, tomorrow morning they wake up, they look tired and you decide to keep them off because you are their parent, you can no longer do that because if the headteacher second guesses you and marks it as unauthorised, you have committed a criminal offence.

“The issue is no longer, if ever it 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.”

In a statement the Isle of Wight Council said: "The Supreme Court’s judgment provides much needed clarity about what constitutes regular attendance at school, to schools, parents and local education authorities.

"The Isle of Wight Council will ensure it continues to apply its code of conduct in relation to school absence and in accordance with this judgment."

Cllr Richard Watts, Chair of the Local Government Association’s Children and Young People Board, said: “Today’s ruling by the Supreme Court provides further clarity but it is important that the Department for Education works with schools and councils to avoid any further doubt about the law. What is needed is certainty for parents, teachers and councils, so that head teachers have the confidence to approve or reject requests for term-time leave in the best interests of pupils. 
“The guidance provided to schools needs to be urgently updated to reflect the judgement. I will be seeking an urgent meeting with the Department to ensure further clarity is provided for all involved.”

This article is based in large part on the Supreme Court's press summary.

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