1. For many years, as far back as 1944, it has been an offence for a parent or carer to fail to ensure their child attends regularly at school. The position was more recently set out in sec 444(1) of The Education Act 1996 which creates 2 offences and states1:
“(1) If a child of compulsory school age who is a registered pupil at a school fails to attend regularly at the school, his parent is guilty of an offence.
(1A) If in the circumstances mentioned in subsection (1) the parent knows that their child is failing to attend regularly at the school and fails without reasonable justification to cause them to do so, they are guilty of an offence.”
2. Since this enactment, the position has changed considerably due to the introduction of the penalty notice regime and the removal of the head teacher’s power to authorise term time holiday save for in carefully defined “exceptional” circumstances.
3. The position in Isle of Wight v Platt 2 (13 May 2016) was that Mr Platt took his child on holiday during term time between the dates of 13-21 April 2015, namely 7 school days. He had applied to the school for permission to do so but this permission was refused. He was issued with a penalty notice which he refused to pay. An information was laid before the Magistrates Court that asserted the offence of failing to ensure a child’s regular attendance at school. The information stated that the offence took place only between those dates: the offence alleged was 0% attendance over that specific period. Therefore the stated offence was that over those dates the attendance was not “regular”.
4. The child’s attendance before the holiday was 95% and afterwards it was 90.3%. Mr Platt successfully argued that there was no case to answer: his case was that there was no failure to attend regularly. The magistrates acquitted him and the prosecution appealed to the High Court.
5. The issue for the Divisional Court was whether or not when determining the percentage attendance of the child, the Magistrates had erred in law in taking into account attendances outside the offence dates that had been set out in the summons i.e. 13-21 April.
6. The Divisional Court decided that i) the Magistrates had not erred in law and ii) that a conviction cannot be secured by laying an information referring to the holiday period only. It rejected the Isle of Wight argument that any absence without authority or statutory excuse would constitute a s 444(1) offence. In doing so the Court considered the case of C v Bromley  ELR 3583 and approved the decision from that case, namely that what constitutes regular attendance is matter of fact and each case must be considered individually and that it does not automatically follow that any unauthorised holiday will lead to irregular attendance. This case has not changed the law, as many think , but has merely reaffirmed the position as set out in Bromley.
7. The current position is that each case must be considered on its own facts and circumstances. A blanket approach that “all term time holidays should lead to penalty notices and prosecutions” is therefore unsustainable. However, unauthorised holidays or leave could lead to a finding of failing to ensure regular attendance at school, but would not automatically do so.
8. What is also clear is that the Department for Education will be looking into this quickly as it has been quoted as saying :
“We will look at the judgement in detail but are clear children’s attendance is non-negotiable so we will now look to change the law.”
3 In London Borough of Bromley v C  EWHC 1110 (Admin),  ELR 358, the Divisional Court held (para 17, per Sullivan J, “leave” for the purposes of s 444(3)(a) of the EA 1996 meant “leave granted by the school, not leave which the magistrates consider might have been justified”. Further, the absence of a pupil “for the equivalent of nine days on unauthorised holidays could [rationally] lead to only one conclusion; that is to say, that there had not been regular
attendance” (para 21).
9. Until that change in the law comes, what are local authorities and prosecuted parents/carers to do? There is currently no guidance on what period of time should be taken into account when considering absence percentages – should it be the previous/current term? The academic year? The calendar year? Or the child’s whole academic career? Defendant parents/carers may bring up previous attendances to argue that the term time holiday does not mean their child has failed to attend regularly. What is clear is that using only the period of the holiday absence is wrong. The longer the period over which the absence is considered, the more compelling the Local Authorities’ case will be.
10. Further, what percentage attendance is deemed regular is still unclear. The school, the Department of Education and the Local Authority may all have different targets. Following guidance in “A guide to absence statistics” published in March 2016, persistent absence is calculated at 90% and this is the figure the Court considered appropriate in the Platt case. Further to this, the guidance when determining persistent absence includes authorised absences, whereas only unauthorised absence should be calculated when taking the decision to prosecute.
11. This does not mean that the Local Authority cannot take into account authorised absences when considering a prosecution. Clearly it may be seen as more serious to take a child on an unauthorised holiday that has already missed 2 months of school due to an authorised reason. As such, authorised absences cannot be used in the formal calculation of absence, but they are something that may be considered when looking at the wider picture of the case as a whole.
12. There is also a more complicated question relating to article 7 of the European Convention of Human Rights. In the leading case of R v Rimmington  1 AC 459 (HL)  UKHL 634 , Lord Bingham set out the position that:
“There are two guiding principles: 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; and no one should be punished for any act which was not clearly and ascertainably punishable when the act was done.”
13. Therefore the questions remains, is it sufficiently clear and certain for a parent/carer to know, before taking his child out of school, whether that is criminally forbidden ? If there is more than one interpretation of the answer to this, the Court must adopt the more lenient approach.
14. Until there is a change in the law or clearer guidance, very careful consideration should be given before the decision is taken to prosecute solely for a term time holiday. It is also clear that many parents/carers who have previously paid penalty notices or have been convicted will also be asking for that decision to be reconsidered although at this time it is not suggested that there is a legal duty to offer refunds.
15. The position of a local authority will be strengthened by:
a) A clear code of conduct setting out the period of time over which the absence percentage will be looked at;
b) A policy that sets out the attendance percentage at which a prosecution will be considered;
c) What steps may be taken should there be non-compliance will help strengthen local authorities’ position.
It is therefore vital for all local authorities to have a clear and unambiguous Code of Conduct which is regularly reviewed and updated.
16. Local authorities should carefully consider whether or not to proceed with cases where the percentage attendance over the prescribed period is above 90%. Cases that fall within criteria set out in a clear Code of Conduct and where the percentage attendance for the prescribed period is below 90% may have more success, but each case will rest on its own facts.
17. Further issues arise as to whether the same rules apply to independent schools or academies. These institutions are bound by some different rules and can, for example set their own term times. A school is defined as :
“ an educational institution which is outside the further education sector and the higher education sector and is an institution for providing:
a) primary education;
b) secondary education; or
c) both primary and secondary education”
As such it would seem independent schools are bound by the same rules but the position is far from clear.
18. Unfortunately, and at least for the immediate future, the case of IoW v Platt may have left us with more questions than answers. Magistrates may take into account the child’s attendance over a wider period which may in turn result in more difficult prosecutions. However, parents/carers should nevertheless be cautious in treating this decision as an endorsement of any term time holiday.
Lee Wilcockson, Solicitor, Advocacy Team – ELS May 2016
The contents of this publication, current at the date of publication set out above, are for reference purposes only. They do not constitute legal advice and should not be relied upon as such. Specific legal advice about your specific circumstances should always be sought separately before taking any action based on this publication.