We posted last month about a decision by a magistrates’ court on the Isle of Wight to throw out the prosecution of a parent for taking his child on holiday during term time. The BBC reports that the local authority has appealed and that the question is whether “the unauthorised absence of a child for seven consecutive school days on holiday… amounts to the child failing to attend the school regularly“.
I’m grateful to Twitter for alerting me to this appeal and for asking whether I was aware of any articles setting out the law. Not being able to find any detailed analysis with a quick google, here is a summary of the (quite complex) legal context for the appeal.
The starting point is that there are two separate offences under section 444 of the Education Act 1996. Section 444(1) provides that “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“. If convicted, the parent is liable on summary conviction to a fine not exceeding level 3 on the standard scale (section 444(8)). The second offence builds upon the first offence. It is committed where a parent knows that the child is failing to attend regularly at the school and fails to cause the child to do so (section 444(1A)). If convicted of this second offence, the parent is liable on summary conviction to a fine not exceeding level 4 on the standard scale or to imprisonment for a term not exceeding three months or both (section 444(8A)).
There are a number of exceptions which are set out in section 444 itself. In particular, absences do not count if they are due to sickness or any unavoidable cause, if they are authorised by the school, if the day is exclusively set apart for religious observance by the religious body to which the parent belongs, or if the local authority failed to discharge a specified duty to make travel arrangements. There are particular provisions for children attending an independent school that is not within walking distance, where the local authority has not made arrangements for them to board or attend a nearer school.
If the child is a boarder, they are taken to have failed to attend regularly if absent without leave during any part of the school term (unless absent due to sickness or any unavoidable cause). There is no definition of “attending regularly” for non-boarders.
There is a statutory defence where the child has no fixed abode, the parent has a trade/business requiring them to travel, the child attended school as regularly as that trade/business allows, and the child attended at least 200 times in the previous year (if aged 6+).
It is the local authority (only) that has the power to prosecute (section 446). An authorised officer has the power to issue a penalty notice if there is reason to believe that an offence under section 444 has been committed (section 444A). Before instituting any proceedings, the local authority must consider whether it would be appropriate (instead of or as well as instituting the proceedings) to apply for an education supervision order with respect to the child (section 447). The local authority also has powers to issue a school attendance order (section 347).
There have been quite a few decisions about the scope of section 444 over the years. However, these have focused on the applicable burden of proof (which led to an amendment of the section), the fact that it is a strict liability offence, and the available defences. Generally, the cases have concerned children with very high levels of absence, whose parents felt that prosecution was unfair because they were unable to force their children to attend school in their particular circumstances. I have not found any discussion about the meaning of regular attendance.
It seems to me that the statutory provisions about boarders and children with no fixed abode give a clue about the limits of “regular attendance”. The requirement for full attendance by boarders (only) suggests that full attendance is not required for a non-boarder to attend school regularly. On the other hand, 200 attendances a year (i.e. 100 days) will not be enough to count as regular attendance, given that this was set (in effect as an exception from the general rule) for a child with no fixed abode who travelled with their parent for their work. The legislation does not fix a particular number of days for other children, presumably because whether or not there has been regular attendance will depend on the pattern of attendance rather than just the number of days. It will be interesting to see whether the Court finds that an unauthorised absence of seven consecutive days counts as regular attendance in this case, in the context of the child’s attendance record over a longer period.
Rachel Kamm, 11KBW, @Kamm11KBW