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By Kate Hindmarch

Jun 23rd, 2016

High Court Favours Father in Term Time Holiday Dispute

After a long running legal battle about term time holidays, the Isle of Wight Council has lost at Appeal. Our Education team have put together a full legal briefing on the background to the case and the implications for schools.

Introduction

In the case of Isle of Wight Council v Platt, a father has successfully challenged the Council’s attempt to impose a £120 fine in response to him taking his daughter on a family holiday during term time. The High Court agreed with the magistrates’ court that there was no case to answer on the basis that an offence is only made out when a parent fails to ensure that their child attends school ‘regularly’. Mr Platt’s daughter had an otherwise impressive attendance record and the High Court accepted that the magistrates had been entitled to look at the 'wider picture’ when considering whether she attended school ‘regularly’.

Legal background

Prior to September 2013, head teachers were permitted to authorise absences of up to 10 school days per year in ‘special circumstances’ and periods in excess of 10 days in ‘exceptional circumstances’. It was widely accepted that special circumstances included family holidays. However, in September 2013 the Education (Pupil Registration) (England) (Amendments) Regulations came into force and it stated that head teachers were not permitted to authorise absences of any length except in ‘exceptional circumstances’.

Schools have discretion in deciding whether or not an application contains ‘exceptional circumstances’. To assist head teachers in interpreting the Regulations, the National Association of Head Teachers (NAHT) published non-statutory guidance on the matter in 2014. The guidance suggests that where an event can reasonably be scheduled outside of term time, it would not be normal to authorise the absence. Consequently, term time holidays are not considered to be an ‘exceptional circumstance’.

If a request for term time leave is unauthorised but a parent chooses to take their child out of school regardless, they may be subject to a penalty under s.444(1A) of the Education Act. Each parent can be fined £60 per child, per absence. If the fine is not paid after 28 days, parents can be prosecuted. If found guilty, parents may face a fine of up to £2,500 or a prison sentence of up to three months.

Case background

In April 2015, Mr Platt took his daughter to Florida during term time resulting in his daughter missing 7 days of school. The head teacher did not authorise the absence and consequently, Mr Platt was fined £120. The Council then prosecuted Mr Platt for failing to ensure that his child attended school ‘regularly’ in accordance with section 444(1A).

The magistrates’ court found in Mr Platt’s favour. The Court considered the case of London Borough of Bromley v C which held that magistrates simply had to decide whether the child has attended school regularly, not whether the absence was justified. In determining this question, the magistrates considered the Department of Education’s (DfE) definition of truancy which describes truancy as persistent absence of 10% of school days. Mr Platt’s daughter had an attendance record of above 90% both before and immediately after the holiday in question. Consequently, the Council had failed to show that his child did not attend school regularly.

High Court Ruling

The Council appealed against the decision arguing that the question was not simply whether the child attended school regularly, but whether she had attended during the period in question. The Council submitted that the magistrates had been wrong to take into account the period outside of the holiday itself.

The High Court dismissed the appeal. It held that the issue of regular attendance was one of fact and degree. The magistrates had been correct to consider the ‘wider picture’ and they had not erred by taking into account the child’s attendance record as a whole.

COMMENT 

As a result of this decision, schools are likely to face an increase in parental requests to take children out of school during term-time. On the face of it, the ruling suggests that in future parents may be able to take their children out of school without permission as long as their child has a good attendance record overall.

The DfE has emphasised that children’s attendance at school is non-negotiable and has confirmed that they intend to make changes to the legislation to close the loophole created by the case. Any changes to the legislation are likely to include a definition of ‘regular’ attendance in an attempt to remove the existing ambiguity. The DfE has also signalled their intention to provided strengthened statutory guidance to assist schools and Councils in interpreting the law.

In conclusion, the current lack of certainty with regards to what constitutes ‘regular’ attendance places schools and councils in a difficult position when deciding whether or not it is appropriate to issue a fine for an unauthorised term time absence.

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