Taking children out of school during term time? A Criminal Barrister's view.

The question of the legality of taking children out of school without permission has been a hot topic in the news and on the internet recently. A number of acquittals have gained significant media attention. As a result, I have been both amused and dismayed to see quite a lot of misinformation and dubious ‘facts’ being portrayed as the state of the law.

Firstly, it should be said that some headlines like THIS are just plain wrong

A first instance decision of the Magistrates Court or even the Crown Court does not create an authority that binds other Courts. In other words, just because Mr Platt won his case it does not mean that you will win yours. Nor does it mean that you can use Mr Platt’s case as an example of why you should win on a similar point.

Only cases from the Supreme Court, the Court of Appeal and the Divisional Court have the power to be binding authority on lower court.

What is the law on taking children out of school?

Surprisingly there is no specific legislation covering the question of the reason for absence from school- the only matter addressed is the question of whether the child has been attending school on a regular basis.

The legislation that local authorities choose to prosecute under is section 444 of the Education Act 1996. It is worth actually having a read of this provision as it is very simple-

s444 Offence: failure to secure regular attendance at school of registered pupil.

(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 his child is failing to attend regularly at the school and fails without reasonable justification to cause him to do so, he is guilty of an offence.

Section 444(1) is the regular offence, section 444(1A) is the aggravated offence- i.e. it carries a sentence of imprisonment (maximum 3 months) whereas the regular offence merely carries a financial penalty.

Section 444(1A) requires knowledge on the part of the parent and a failure to take reasonable action.

In the context of taking a child on holiday in term time, the aggravated offence does sounds worrying. However, it would be quite unusual for a parent to be prosecuted under the aggravated offence in those circumstances. The aggravated offence is usually reserved for cases of proper truancy where the parents actively enable their child’s non attendance.

Subsections (3) to (6) carry a number of defences available to parents whose children are not at boarding school. These include a parent having a defence if:

• The school has given permission for the absence
• The child did not attend due to illness or other ‘unavoidable cause’.
• The child did not attend for a designated religious day
• The child is of no fixed abode and certain conditions apply
• The child does not live walking distance from a school and suitable transport provisions are not put in place.

I have seen some commentary on the internet regarding ‘unavoidable cause’ which is plainly wrong. ‘Unavoidable’ has been very strictly interpreted by the Courts. So, for example, a parent saying that they had to take their child out of school because they had to go abroad on an ‘unavoidable’ work trip would not have much luck before the Court. It has been ruled that an unavoidable cause had to be something in the nature of an emergency (like sickness) and had to be in relation to the child and not the parent (R v Leeds Magistrates Court [2005] EWCA 1479, Islington LBC v D [2011] EWHC 990).

The Courts have ruled that if one of the above statutory defences are not available to a defendant then the offence under s444(1) is one of ‘strict liability’. In other words, once the question of irregularity of attendance has been determined as a matter of fact the defendant is guilty (Bromley LBC v C [2006] EWHC 1110). It does not matter why the child has not been in attendance although the reasons for non attendance could be raised in mitigation for the purposes of sentence. Practically this means that it would not be open for a parent to argue, for example, that a holiday is a good life experience for a child and would teach them as much as the equivalent time in school.

It should be noted that under the aggravated offence under s444(1A) a defence of ‘reasonable justification’ is available to a defendant. In such a case the ‘it is good for the child’ argument could be raised; this is one of the reasons why prosecutions under the aggravated offence are reserved for the more extreme examples of enabled truancy. It is also of note that raising a defence of reasonable justification will only get a defendant so far. Even if that defence is successful and the Court acquits the defendant of the s444(1A) offence, the Court can still convict the defendant of the strict liability provision under s444(1) due to the alternative being available under s444(8B) of the Act.

There is no statutory definition of ‘regular attendance’ and there is no specific guidance from higher Courts- so it is a matter for the Magistrates to consider bearing in mind the facts of the case.

It is of course a matter of interpretation as to whether excellent attendance other than a period of holiday will fall to be classed as not regular. One aspect to bear in mind is that irregular attendance is a matter for the Prosecution to prove. The burden of proof is on the prosecution to prove the case so that the Court is sure (or beyond reasonable doubt) that the child has not been attending regularly. It is NOT up to the defence to show regular attendance.

My personal view is that if a child has an excellent attendance record but goes for one or two weeks holiday on a one off basis during term time the local authority may be be hard pushed to prove to the requisite standard that the child has failed to attend regularly. However, this is not everyone’s view and in a contested case it is the decision of the Court which will matter.

I often see people quoting numbers of ‘sessions’ missed per term or per week as ‘the law’ in respect of when absences are legal or not. Again, this is misinformed and wrong. Some local authorities have guidance as to what they regard as an ‘acceptable’ levels of absence and some have even given schools guidance on when to instigate prosecutions or issue penalty notices. This may help you get permission for the absence (which is a defence in law to prosecution) but if permission is refused then it has no influence whatsoever on your guilt or innocence under the legislation. Without express permission for the absence, Local Authority internal guidance does not provide a defence in law to a charge although in some circumstances failure to follow policy can afford an abuse of process argument. Such an argument is seldom won in practice and I would not want to rely on one on behalf of a client.

Should I pay a fixed penalty notice for my child’s absence from school?

Often local authorities will offer parents a Fixed Penalty Notice (“FPN”) to settle the matter of an unauthorized absence. If paid this brings the matter to an end and the parents do not end up with a criminal record. It should be said that you should not rely upon this as a guarantee- the issue of a FPN is at the discretion of the local authority and they do not have to offer them, they may go straight to prosecution. This shows that there is a danger in a course of parents ‘doing the maths’ for paying FPNs versus paying an uplift in charges for a vacation during school holidays. It should also be noted that FPNs cannot be relied upon to be issued all the time, if parents persist in unauthorized absences then immediate prosecution can ensue despite FPNs being issued in the past. In those circumstances the previously issued (and paid) FPNs could be relied upon as highly persuasive evidence of irregular attendance. The message from this is that parents who regularly take their children on holiday in term time expecting to just pay the FPN are playing a risky game.

When an FPN is issued the payment of the FPN is always the tempting course. No one wants a criminal record and some parent’s jobs rely on a clean bill of health for criminal record checks. I am of the view that local authorities know this and rely upon it when firing out FPNs left right and centre for any unauthorised absence.

I recently had a parent approach me in respect of an FPN for a child missing 2 days of school in order to get an earlier flight for school holidays, the child had an otherwise 100% attendance record. I was of the view that it would amazing if a Court found that these circumstances amounted to irregular attendance and advised the parent to contest the matter but as the father worked in financial services he could not afford a criminal conviction and paid the FPN. I think that local authorities know this and therefore are confident in issuing a large number of these notices safe in the knowledge that few will be challenged and a steady stream of revenue will ensue.

Ultimately it will be a question for the Court to consider what constitutes ‘regular’ attendance. Two different courts may take different views- it is arguable that a week or two holiday with an otherwise unblemished record would not constitute a lack of regular attendance, on the other hand it is also arguable that over the two weeks that the child was away he/she was not attending school regularly.

It is clear that proper guidance needs to be issued either by way of a statutory or judicial definition of what would constitute irregularity or government guidelines to local authorities in respect of when prosecutions or FPNs should ensue. In the meantime if you choose to take your child out of school during term time then you are taking a risk that you may be prosecuted. The more often that you do it, the greater that risk is.

Quentin Hunt is a leading criminal Barrister operating from award winning Chambers in Central London.

If you face prosecution under the Education Act 1996 or any other criminal legislation feel free to contact Quentin for a free, no obligation conversation about your case.

Quentin is currently offering a reduction in his fees in respect of Education Act prosecutions