There have been a number of recent newspaper stories concerning the acquittal of a parent who was prosecuted for a truancy offence contrary to section 444 of the Education Act 1996. 

The allegation was that Mr Platt took his daughter on holiday during term time, meaning that she was absent from school for 6 days.  As a result, he was prosecuted by the Isle of Wight Council in the Magistrates’ Court.

Newspaper reports suggest that the case was dismissed against Mr Platt on the basis that there was no case to answer, as the prosecution could not prove that Mr Platt failed to ensure that his daughter attended school “regularly”.  With an increase in such cases over recent months this is an area of criminal law that warrants closer attention.

The Offence

Section 444 of the Education Act 1996 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.

Analysis of the offences

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 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.

Under section 444(1A), local education authorities, school staff and the police also have the power issue Fixed Penalty Notices. The penalty is £60 if paid within 28 days and £120 if paid within 42 days of receipt of the notice.

Proceedings for either of the offences may only be brought by the local authority (see section 447(2) of the 1996 Act). The local authority must first consider whether it would be appropriate, instead of or as well as instituting proceedings, to apply for an “education supervision order” with respect to the child.

Section 8 of the Crime and Disorder Act 1998 also empowers a court (in an area where appropriate arrangements have been introduced) to make a parenting order when convicting a parent or guardian of an offence under section 444 of the 1996 Act.

“Attend regularly”

There is ambiguity regarding the meaning of “attend regularly” as stated under section 444 of the 1996 Act. The phrase is not defined in the Act; and the courts have not directly considered its meaning. Notwithstanding this, our analysis is as follows:

Section 7 of the 1996 Act places a duty on parents to ensure that their child regularly attends school.  

Section 437 of the 1996 Act provides local authorities with the power to serve a notice on a parent in respect of a child who, in the “opinion of” the local authority, is not regularly attending school.

Before recent legislative changes, most schools were bound by central government “Circulars”. In 1999, the then Department for Education and Skills issued Circular 11/99, which appeared to indicate that irregular attendance could occur (thus justifying the service of a section 437 notice) where a pupil did not attend the two compulsory attendances registers required to be taken each day and their absence was not authorised.

In Hinchley v Rankin [1961] 1 W.L.R. 421, the court considered the meaning of regular attendance under a predecessor provision to section 7 of the 1996 Act. The court determined that a child failed to attend “regularly” at a school under section 39(1) of the Education Act 1944 if he is not regularly present for the periods laid down for attendance at the school in question.  The 1944 Act required full-time [our italics] education and little leeway should therefore be afforded to parents who did not comply precisely with this requirement.

The above analysis suggests that regular attendance means that anything other than full-time attendance is capable of giving rise to the offence.

Term time holidays and “exceptional circumstances”

Mr Platt decided to take his daughter to Disney World in Florida during term-time. He did this without the approval of the head teacher of his daughter’s school. He had applied to the head teacher for permission for the absence. Notwithstanding his daughter’s 100 per cent attendance record, his application was refused. Why?

Until recently, head teachers enjoyed a wide discretion to grant a leave of absence to a pupil, the effect of which would nullify the section 444 offences. Under the Education (Pupil Registration) (England) Regulations 2006, this leave was to be granted for a family holiday provided:

  1. advance notice was given by the parent; and,
  2. the school considered that “leave of absence should be granted due to the special circumstances relating to [the] application”.

The amount of leave for a pupil could not exceed 10 school days per year, except for “exceptional circumstances”.

The Education (Pupil Registration) (England) (Amendment) Regulations 2013 altered the above 2006 Regulations. The “‘exceptional circumstances” condition no longer related to the amount of leave, but rather to whether leave would be granted at all.

According to the Explanatory Memorandum that accompanied the 2013 Regulations, the Government felt that many schools had wrongly interpreted the previous law as “an automatic entitlement to an annual two-week term time holiday”. 

Mr Platt is not the only parent to have been adversely affected by this change. Earlier this month, Noah Myers applied for judicial review to quash the 2006 Regulations arguing that they infringed his rights under the European Convention on Human Rights as incorporated into domestic law by the Human Rights Act 1998. Mr Myers had wanted to take his children out of school for three days so that they could watch their cousin take part in a weightlifting competition in Poland.

My Myers’s judicial review application is still at the permission stage.  Applications are normally considered within three to four months. For permission to be granted, there should be an arguable case for judicial review that justifies a full investigation of the substantive merits.

It will be interesting to see whether the Administrative Court grants permission and, if so, whether Mr Myers succeeds at the substantive hearing. Watch this space!

The Issues

The case demonstrates that, despite the simple circumstances giving rise to an offence, there is nonetheless a requirement for the existence of these circumstances to be proved to the requisite evidential standard. It is possible that a number of convictions to date may have been based on evidence that failed to meet this threshold.

In addition there may well be legitimate argument as to what amounts to attending school, “regularly”, and the extent of the “reasonable justification” defence in the section 441 (1A) offence. Likewise, as the Myers case demonstrates, there remain challenges available to the interpretation placed by schools on the extent of “exceptional circumstances” in the Regulations.

The cases of Mr Platt and Mr Myers demonstrate 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 has 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. It will only be through the determination of more cases like these that the legal position will become clearer.