Making your child go to school: teenager’s chaotic lifestyle and parent’s inability to control not a defence to prosecution

May 10th, 2013

As all education lawyers know, the parent of a child who fails to attend school regularly commits a criminal offence punishable by a fine of up to £1000 (section 444(1) of the Education Act 1996).  If the parent knows her child is failing to attend school and fails to cause her to do so, the “aggravated” form of the offence (section 444(1A)) is committed which is punishable by a fine of up to £2500 and/or up to 3 months’ imprisonment.  One of the statutory defences to both charges is that the child was prevented from attending “by reason of sickness or any unavoidable cause” (section 444(2A)).  It is a defence to the aggravated charge to prove reasonable justification for the failure to cause the child to attend (section 444(1B)).

In West Sussex County Council v C (unreported, Hallett LJ, Burnett J, 30 April 2013, summary available on Lawtel) the magistrates’ court acquitted the parent of the aggravated offence, finding that her inability to control her 15 -year-old’s chaotic lifestyle amounted to an “unavoidable cause” but this was overturned by the Divisional Court.  The Court said that the relevant cases had not been put before the magistrates and they showed that “unavoidable cause” had always been strictly construed, requiring something in the nature of an emergency which prevented attendance: Jenkins v Howell [1949] 2 KB 218.  Further, applying Bath and North East Somerset DC v Warman [1999] Ed. C.R. 517 and Islington LBC v D [2011] EWHC 990 (Admin), it was held that a deliberate decision by the child to remove herself from school was not an unavoidable cause, nor was the fact that the mother had done all she could.

Such matters may provide a defence to the aggravated charge of reasonable justification, but in this case the Court said there was no answer to the lesser charge under section 444(1).  The test for returning such an alternative verdict was whether that would be in the interests of justice (S LBC v S [2004] EWHC 2876 (Admin), [2005] E.L.R. 276), which the Court said was satisfied.

Paul Greatorex

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