Please understand that the law we set out below is the law as laid down in a number of High Court judgments including the ‘Platt’ judgment of 13th May 2016. That said the Platt judgment and all the preceding case law upon which it was based, is the subject of a Supreme Court appeal. The appeal was heard on 31st January and the court’s decision is awaited. It may well be the case that the Supreme Court decides to reverse 50 years of High Court decisions and make ANY unauthorised absence a criminal offence. (That has never been the law but it may well be about to become the law in England and Wales)
If your children’s attendance is otherwise very good, then currently, even a week’s holiday does not amount to an offence. 7 days is 3.68% of a school year. Attendance over 93% is better than the child in the ‘Platt case’ (92.3% – she missed 12 days due to 2 family holidays in term time) and the Magistrates and High Court said there was ‘no case to answer.’
This is a link to the judgment in the IW Council v PLATT case handed down on May 13th 2016 by the HIGH COURT
…. read paragraph 16 it’s the most important ….. it says
‘I do not consider that it is open to the authority to criminalise every unauthorised holiday by the simple device of alleging in the information that there has been no regular attendance in a period limited to the absence on holiday. If that were carried to its logical conclusion, it would be open to the authority to bring a prosecution under section 444(1) in respect of an unauthorised absence from school without lawful excuse of one day by limiting the period of irregular attendance alleged in the information to that one day’.
Basically that means that an unauthorised absence of itself is NOT automatically an offence and therefore a TPN (penalty notice) can only be issued / pursued or court action taken, where the local authority has considered the child’s wider attendance.
Despite media reports to the contrary, there is NO hard and fast rule that 90% is ‘regular’ attendance, and to the same extent there is no rule that a lower overall attendance would not be considered REGULAR. The Magistrates (if it got that far) are required to look at the WIDER FACT AND DEGREE. In the PLATT case they looked at the full academic year and the High Court agreed that 90.3% up until the day after the holiday in April 2015 (93.5% by the end of the academic year if illness is excluded) was NOT irregular attendance and the High Court agreed.
A much lower % might still be ‘regular attendance.’ For example if a child had an attendance of 50% but 49% was due to illness and 1% was unauthorised absence, the court would NEVER consider that to be a breach of the law BECAUSE under s444(3) ILLNESS is specifically excluded as the basis of any allegation that a child has failed to attend school regularly.
When it comes to assessing attendance (and whether or not it is ‘regular’) the court will be required to apply the principle from the landmark case of Tuck & Sons v Priester 1881. The court in that case said that ‘if there is a reasonable interpretation of a statutory provision that avoids the penalty, the court MUST adopt that interpretation. If there are 2 reasonable interpretations, the court MUST adopt the more lenient one.
Furthermore it is a fundamental principle of English law that citizens should NOT be criminalised / prosecuted under vague statute. As even now nobody REALLY knows what ‘regularly’ means, it is too vague to be the basis of any criminal sanction. This principle was confirmed by the House of Lords in R v Rimmington
The legislation can be found here. It makes no mention of unauthorised term time holidays http://www.legislation.gov.uk/ukpga/1996/56/section/444
And finally this is a link to the case from 2006 that the ‘Platt defence’ relied on in Magistrates court. It’s London Borough of Bromley –v-v C and can be found at the following link http://www.bailii.org/ew/cases/EWHC/Admin/2006/1110.html
See paragraph 19, it is the important one.
Apologies for the delay responding. Once the decision of the Supreme Court is handed down, it MAY open the door to a claim for refunds of fines that parents have previously paid. It is by no means certain that the Supreme Court will give us a ‘favourable decision’ so at present we just have to ‘wait and see’. We will post on this page to let everyone know IF / when we are ready to start the action to recover them but don’t hold your breath, we are not at all confident that the Supreme Court isn’t going to through out 50 years of judicial precedent and say that ‘regular attendance’ means every single day.
At present we have no idea when the judgment of the Supreme Court will be handed down but we will post on here as soon as we know. Best guesses are sometime in March.
This really has to be a decision for you. If your child’s attendance is over 92.3% for the full academic year (or the 12 months prior to the issue of the PN) then there is a very good chance that if you refuse to pay it the local authority will withdraw it. If they do decide to take action in Magistrates Court then under the law as it currently stands there is a very good chance that you will be found to have no case to answer. HOWEVER, we are not at all confident that the Supreme Court is not going to reverse 50 years of precedent and make ANY unauthorised absence a criminal offence. That is the basis of the appeal that was heard on 31st January and if it succeeds (judgment might still be a few weeks away) then you may regret not paying that Penalty Notice. The simple truth is that today the law is reasonably clear and there is a number of allowable days of unauthorised absence before criminal liability is triggered, BUT it might change in anything between one and 8 weeks and that change may not be favourable to your position.
Lots of local authorities are still issuing summonses for unauthorised absences. To help parents who find themselves in this situation a subsidiary of JMP Partnership (School Fines Refunds Ltd) has paid for the following legal advice that we are prepared to share FREE OF CHARGE with parents. This advice was prepared by Paul Greatorex of 11KBW Chambers, the barrister who represented me in the High Court.
The Isle of Wight Council, with financial backing from the Department for Education, are seeking to appeal the High Court decision of the 13th May. The hearing is scheduled to be heard on 31st January 2017 at the Supreme Court.
If they succeed then the very reasonable and common sense decision of the High Court, that requires local authorities to look at a child’s wider attendance before fining or prosecuting parents is at risk. The IW Council and Department for Education have appointed 4 barristers, including two QCs and they are seeking to argue that the words ‘REGULARLY ATTENDS’ actually means ‘ATTENDS EVERY SINGLE DAY THAT THE SCHOOL REQUIRES IT’.
If that becomes law, then ANY parent who takes their child out of school, even for one session (half a day), without permission of the Headteacher will have committed a criminal and potentially IMPRISONABLE offence. I find it staggering that they would seek to impose such a draconian law upon parents in England and Wales.
If you can please try to avoid calling our office as we are just a small family business and it was VERY disruptive to my employees work (and their income which is performance related) trying to take dozens of calls every day from media organisations seeking information about the case. To try and be helpful to the media and to avoid disruption to my business and family life, I have listed the pertinent facts surrounding the case here.
1. The decision that is the subject to this appeal was made by the Isle of Wight Magistrates on 12th October 2015 and the High Cout on 13th May 2016.
2. The Isle of Wight Magistrates ‘case stated’ is available at the following link: case stated.
3. The exact question asked of the High Court (by the Magistrates) is: ‘DID WE ERR IN LAW IN TAKING INTO ACCOUNT ATTENDANCE OUTSIDE OF THE OFFENCE DATES (13th APRIL TO 21st APRIL) AS PARTICULARISED IN THE SUMMONS WHEN DETERMINING THE ATTENDANCE PERCENTAGE OF THE CHILD?
4. The holiday that resulted in the Local Authority issuing the truancy Penalty Notice was in Florida (Disneyworld) from April 13th to April 21st. 16 members of my family were booked on the holiday but due to the death of my grandfather a few weeks earlier, my father did not travel. We stayed in two villas at a place called Windsor Hills. My youngest daughter, who was then aged 6 (now 7), missed 7 days of school. My older daughter, who was then aged 10 (now 11) and my step-son who was 6 (now 7) only missed 1 day of school because they attend a different (independent school) that has different term times.
5. Independent (private) schools are not subject to this system of fining parents. On average children attending independent schools attend on 165 days a year. The LAW requires state schools to be open for 190 days as a minimum. [The Education (School Day and School Year) (England) Regulations 1999] In effect this means children with 88% attendance at a local authority maintained school will attend school on more days than children with 100% attendance at an independent school.
6. The Isle of Wight provision of secondary education is at the very bottom of the OFSTED tables and that is why many parents on the Island, myself included, are forced to privately educate our children at very substantial cost. We have some excellent primary schools including my daughter’s school.
7. Under no circumstances should any media organisation contact my daughter’s school or name it in reports or disparage it or it’s Head Teacher in any way. Any media organisation that does will receive NO co-operation from me.
8. Under no circumstances should any media organisation name any of my children or publish or broadcast pictures of them. Any media organisation that does will receive NO co-operation from me.
9. The Head Teacher of my daughter’s school did not authorise the holiday because then Education Secretary Michael Gove took away all discretion from Head Teachers to authorise term time holidays in 2013. She has subsequently retired. She was an outstanding Head Teacher running an outstanding Primary School until her retirement in December 2015. I do not know if she would have exercised her discretion and authorised this holiday, had it been available to her. I did not ask.
10. When I ‘requested permission’ to take my daughter out of school in term time, her attendance was 100%. By the end of the academic year it was 94%. Other than 7 days off for the holiday with me, and a separate 5 days of absence for a holiday with her mum (my ex-wife) my daughter only missed 2 days all year, due to illness.
11. The previous High Court precedent that we cited in the Magistrates Court, that was instrumental in the Magistrates concluding that I had no case to answer was the case of London Borough of Bromley v C. The pertinent part of that judgment is at paragraph 19 where the High Court says ‘I would readily accept the submission that it does not automatically follow that there will not have been regular attendance merely because there has been an unauthorised holiday. The question will be very much one of fact and degree in each case…’
12. I, (and thousands of parents every year) was prosecuted under s444 of the Education Act 1996 which, as can very easily be read and understood, requires parents to ensure that their children attend school REGULARLY. The issue that has given rise to this case is the definition of REGULARLY and how it is to be calculated. There is NO STATUTORY definition of the word regularly in this context. Parents have to try and decide that for themselves, which leads many, myself included, to calculate that threshold for ‘attends regularly’ can’t be higher than 90% attendance. The Department For Education currently defines ‘persistent truancy’ as attendance below 90%. It was previously defined as low as 80%.
13. The lack of clarity that parents face is absolutely central to this case. The former leader of the Isle of Wight Council, Jonathan Bacon, himself a barrister, does not think the law is clear. He is quoted in this article in the Isle of Wight County Press saying, ‘The recent media attention given to this case shows that there is interest, concern and, above all, uncertainty as to what constitutes ‘regular attendance’ for the purposes of the legislation in question. This is not a question that can be resolved by any local authority’.
14. Even the Chair of the Local Government Association’s Children and Young People Board, Roy Perry, agrees that the law is not clear. In their press release following my victory in court, he called upon the government to return discretion to Head Teachers and allow more flexibility for parents to take their children on holiday.
15 If the former leader of the Isle of Wight Council Jonathan Bacon, a barrister, and Roy Perry of the LGA, think the law is unclear, how can parents with no legal training possibly know what course of action amounts to a criminal offence and what does not?
16. It is an unarguable principle of English law that, ‘no one should be punished under a law unless it is sufficiently clear and certain to enable him to know what conduct is forbidden before he does it’ This legal principle comes from the leading case of R v Rimmington  1 AC 459 (HL). Furthermore, if there is a reasonable interpretation of a statutory provision which will avoid the penalty in any particular case the court must adopt that construction and if there are two reasonable constructions the court must give the more lenient one. That is a quote from : Tuck & Sons v Priester (1887) 19 QBD 629 at 638; and more recently R v Z  2 AC 645 (HL).
17. I believe very strongly that the primary legislation and case law is very much on the side of parents in this area, but for complicated reasons Magistrates Courts have been wrongly finding against parents in thousands of cases. This appeal may well open the floodgates to thousands of appeals by parents who have been wrongly convicted in the past. One of the fundamental issues that has given rise to the problem is that secondary legislation (statutory instruments that have received little or no Parliamentary oversight) governing how Head Teachers and Local Authorities are to treat holiday requests, appears to conflict with the primary legislation and the very different burden it places on parents.
18. All of this is seriously aggravated by the complete abuse of process by prosecutors compounded by a lack of access to justice for parents who find themselves facing these fines and prosecutions. Local Authorities almost universally prosecute under section s444(1) of the Education Act, as they did in my case. The PROPER section under which prosecutions should be brought in these cases is s444(1)(a). While both involve absence from school, the later involves KNOWLEDGE of the offence and therefore is an imprisonable offence. The former is just a fine. IF parents were charged under ss(1)(a) they would be entitled to Legal Aid and access to a Duty Solicitor at court but parents charged under ss(1) are entitled to neither. Because of this abuse of process by prosecutors, thousands of parents end up unrepresented and are convicted of offences they were not guilty of. For prosecutors to suggest that parents can take their children on holiday WITHOUT knowing they were not at school, is beyond credulity.
19. Because I did not pay the £60 TPN it increased to £120 21 days later. Because I did not pay that, I was prosecuted. I represented myself at the plea hearing but decided to pay a solicitor (Michael Spoors) to represent me at the full hearing. It cost me almost £1000 for his expertise. When we were successful I could have, but did not seek my costs against the prosecution because that would ultimately have fallen on local tax payers to pay. The IW Council is already in very serious financial trouble.
20. I was represented at the High Court by Paul Greatorex of 11KBW Chambers who specialises in, amongst other areas, education law. Paul will also be representing me at the Supreme Court along with his colleague Clive Sheldon QC.
21. The Isle of Wight Council will be represented by Martin Chamberlain QC and the Department for Education will be represented by James Eadie QC.
I really hope that all helps answer all the possible questions you might have about the case.
If you have taken your kids on holiday in term time, and been fined by your local authority, but think you did nothing wrong, you may want to cite the case of London Borough of Bromley -v- C where a High Court Judge said the following words:
This means that the holiday OF ITSELF can’t amount to a breach of S444 of the Education Act 1996. Essentially the judge is saying that you have to look at the entirety of the attendance. If your child has ‘ATTENDED REGULARLY’ you have not broken the law. ‘Regularly’ may well be defined differently by different magistrates but in my case, of which there was extensive media coverage, 90% was sufficiently high enough for the Magistrates to conclude that I had NO CASE TO ANSWER.
Local Authorities may well seek to argue that the period over which attendance should be calculated should be a term or less but the judgment in Bromley means that the magistrates are able to consider it over any period they feel is appropriate. The ‘term assessment’ argument is reasonably easy to counter because every term is a different length so, in effect, 5 days off on holiday may amount to ‘irregular attendance’ in a short term, but not in a longer term. So the argument should always be that the full academic year is the appropriate period over which to calculate attendance in order to decide if a child has attended regularly.
Also it is a requirement, both of the common law and article 7 ECHR (Euopean Convention on Human Rights), that no one should be punished under a law unless it is sufficiently clear and certain to enable him to know what conduct is forbidden before he does it: This was set out in the leading case of R v Rimmington  1 AC 459 at [33-34] (which you can simply Google as it is a very famous case). The wording of section 444(1) does not satisfy this requirement. The meaning of “regular”, particularly when there is no definition of that term or the reference period by which it is to be judged, is far too vague to be the basis of a criminal offence. Whilst I accept that there will be cases where on any view a child has not attended school regularly but that will be the case with any vaguely-drafted offence and such an observation is not an answer to the objection. Put simply it is not sufficiently clear and certain for a parent to know, before taking his child out of school, whether that is (criminally) forbidden.
In respect of the ‘reference period’ i.e. the period over which you have to calculate the attendance %, section 444(6) makes provision for children of no fixed abode, and requires a minimum of 200 attendances (100 days) during the 12 months preceding the institution of proceedings. That may be taken to indicate the bare minimum level of attendance considered acceptable AND the period over which Parliament intended the attendance to be calculated. If that is the case, then ‘CRIMINAL NON-ATTENDANCE’ could be argued to be at or below 52% calculated over the previous 12 calendar months. (Most schools are open the statutory minimum number of days, i.e. 190)
This is a link to the full case of LONDON BOROUGH OF BROMLEY -v- C (scroll to paragraph 19, that is the important bit)
This is a link to the Education Act 1996 – the relevant section is s444
Many parents have contacted me for advice on this issue and so far I have tried as best I can to respond to each message / email, but it is becoming ever more difficult to respond to everyone. Apologies if I don’t get back to you and GOOD LUCK TO YOU ALL. Remember, they are YOUR KIDS, you know what is best for them, not the Local authority.