The Supreme Court (“the Court”) has handed down judgment in the term-time holiday case (see Isle of Wight Council (Appellant) v Platt (Respondent) [2017] UKSC 28). The case has important implications for parents considering taking their children out of school for holidays during term-time. The Court has held that word ‘regularly’, in relation to section 444(1) of the Education Act 1996 (“the 1996 Act”), means ‘in accordance with the rules prescribed by the school’.

Background

We have blogged about this matter previously (see here). By way of a reminder, section 444 of the 1996 Act creates two offences:

(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 [...] to cause him to do so, he is guilty of an offence.

Under section 444(1B), it is a defence for a person charged with an offence under subsection (1A) to prove that he had a reasonable justification for his failure to cause the child to attend regularly at the school.

The offence under section 444(1) is the less serious offence. It is described as an offence of “strict liability” (see Barnfather v Islington Education Authority [2003] EWHC 418 (Admin)). This means that the prosecution need not prove any mental state (or mens rea) to make out the offence. Thus, in order to succeed with a prosecution under section 444(1), the prosecution are simply required to prove that the child:

  1. was a registered pupil at a relevant school;
  2. was of compulsory school age;
  3. had failed to attend regularly; and
  4. that the reason for the absence was not with leave or by reason of illness or unavoidable cause in a case where such an issue was raised.

The offence under section 444(1A) of the 1996 Act is more serious. In order to succeed with a prosecution under the section, the prosecution are required to prove that the parent knows that his child is failing to attend regularly and (without reasonable justification) fails to cause him to do so.

The offence under section 441(1) is punishable by fine only, whereas the offence under section 441(1A) is punishable on conviction with a fine (not exceeding level 4 on the standard scale) and/or imprisonment for a term not exceeding three months.

The facts of the case

Mr Platt sought permission from his daughter’s head teacher to remove his daughter from school during term-time for a holiday. The head teacher refused the request but Mr Platt took his daughter on holiday as planned, causing her to miss seven school days in April 2015. Mr Platt was issued with a penalty notice on her return. He did not pay the fixed penalty and was prosecuted with the offence under section 444(1). The magistrates ruled that Mr Platt had no case to answer. They held that his daughter had attended school ‘regularly’ because, even after the holiday, she had attended 90.3% of the time up to that point in the academic year.

The Council appealed on the issue of whether the magistrates had been entitled to take into account attendance at school outside the period of the absence. The Divisional Court held that the magistrates had not erred in doing so. The Council appealed to the Supreme Court.

The Supreme Court’s decision

The Court unanimously allowed the Council’s appeal. Lady Hale DPSC, with whom Lord Neuberger, Lord Mance, Lord Reed and Lord Hughes agreed, said that there were at least three possible meanings of “regularly” in the section 444 provision: (a) evenly spaced, as in “he attends Church regularly every Sunday”; (b) sufficiently often, as in “he attends Church regularly, almost every week”; or (c) in accordance with the rules, as in “he attends Church when he is required to do so”.

The Court held that the word ‘regularly’ means ‘in accordance with the rules prescribed by the school’. The Court thus upheld the Council’s appeal and remitted Mr Platt’s case to the Isle of Wight Magistrates’ Court with a direction to proceed as if his submission of no case to answer had been rejected. 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.

Implications for parents

The Court’s ruling is likely to give ballast to local authorities to bring prosecutions against parents who, without authorisation, remove their children from school during term-time. The Education (Pupil Registration) (England) Regulations 2006, as amended by the Education (Pupil Registration) (England) (Amendment) Regulations 2013, still permit authorised absences in ‘exceptional circumstances’. However, the amended Regulations have significantly restricted the discretion formerly enjoyed by head teachers by removing references to family holidays and schools having discretion to grant up to ten school days of holiday per year. As the Government intended, this has resulted in a massive reduction in the number of absences that are authorised.

The case of Mr Platt demonstrates that this remains a controversial area of criminal law. Parents understandably resent the intrusion of the state into family life. By the same token, through the 2013 amendment Regulations, the Government laid down a marker: this is an issue that concerns the Government and in relation to which it is willing to resort to the ultimate sanction of criminal prosecution. The Government cites public policy reasons behind its approach: absences from school during term-time have a disruptive impact for the education of the individual child and of the other pupils in his or her class. This factor was itself recognised by the Court (at para. [40]).

According to media reports, 19,920 people were prosecuted in 2015 for failing to ensure their children attended school - equivalent to 105 cases for every day on the school calendar. Prosecutions may well increase following the Court’s ruling. Parents should proceed with caution before taking their children out of school during term-time.