Another Brick in the Wall: Section 444 of the Education Act 1996

With the Easter Holidays upon us, prices for flights and holidays have shot up. This is a pain that any parent of a school-age child will be all too familiar with: the cost of taking the family away during the school holidays. It is this cost that lead Jon Platt to take his daughter out of school for an unauthorised seven-day break in April 2015.

In 2015 7.5% of absences were due to holidays in term-time. Prior to 2013 the regulations governing school absences referred to parents applying for family holidays in ‘special circumstances’ and schools having a discretion to grant up to 10 days’ holiday per year. This changed with the introduction of The Education (Penalty Notices) (England) (Amendment) Regulations 2013 No. 757. Now leave of absence during term time shall not be granted unless there are ‘exceptional circumstances’. This has led to more unauthorised absences and an increase in parents being fined by way of penalty notices.

Mr Platt was issued with such a penalty notice, he refused to pay and was subsequently prosecuted. Section 444(1) of the Education Act 1996 states:

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.

Section 444(1A) goes on to state:

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.

Section 444(1) is an offence of strict liability and punishable by a fine. Section 444(1A) is far more serious, although not strict liability, and the maximum penalty is 3-months imprisonment.

Mr Platt was prosecuted under the less serious section 444(1), prosecutions under (1A) usually being reserved for cases of persistent truancy. His case turned on the definition of “regularly”. His argument was that as his daughter had 90.3 percent attendance, and as the local authority’s policy on satisfactory attendance was between 90 – 95 percent, she had not failed to attend school regularly. The magistrates agreed and found there was no case to answer.

The local authority appealed by way of case stated and in June 2016 the Divisional Court of the Queen’s Bench Division held that “[a] child’s attendance outside the specified period is relevant to the question whether the offence has been committed.” The local authority appealed to the Supreme Court and judgment being handed down on 6 April 2017.

In her judgment, Lady Hale DP declared that for the purposes of section 444 “regularly” means “in accordance with the rules prescribed by the school”. Therefore, any unauthorised absence is a criminal offence.

This ruling has been welcomed by some and met with consternation by others. As overall absence rates have remained broadly stable over the last 5 years, it seems the “sensible prosecution policy” advocated by Lady Hale is not enough to deter a persistent group of parents from taking their children on term-time holidays. After all, a £60 fine is small change compared to the increases in fares during the school breaks. It appears some parents will continue to say, for the sake of a family holiday, we don’t need no education (for a week or so at least).

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