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Term-time holidays: Clearing up the confusion

As term-time holidays continue to cause tension, James Adams says 'fines' for parents are misunderstood

Posted by Stephanie Broad | January 04, 2016 | Law, finance, HR

The number of penalty notices issued and prosecutions pursued by educational authorities against parents rose sharply between 2013 and 2014, according to Government figures. In 2014, 16,430 people were prosecuted for failing to ensure their children went to school, representing an increase of more than 3,000 (25 percent) over the previous year.

On top of that, 12,479 people were found guilty of truancy offences – a rise of 22 percent – and there were 9,214 fines, averaging £172, issued by courts – an increase of 30 percent. 

Driving this is the Government’s new campaign to reduce the number of days that children are absent from school and to “challenge the culture of expectation to term time holiday”.

Penalty notices were introduced in 2004 as an alternative to prosecution for two criminal offences aimed at tackling absenteeism provided for by the Education Act 1996 (EA). EA s444(1) introduced the offence of parent's failure to secure child's regular attendance at school and EA s444(1a) that of a parent knowing that their child is failing to attend school, regularly failing without reasonable justification to cause him or her to attend school.  What constitutes “regular” attendance is not defined by the EA.  

For many years there were very few penalty notices issued in respect of these offences, but this changed in recent years as the issuing of penalty notices was encouraged by Government policy.   

First, the Education (Pupil Registration) (England) (Amendment) Regulations 2013 effectively removed the discretion for head teachers to grant leave for term-time family holidays. Prior to this, 10 days of leave for family holidays had typically been authorised by schools. This change resulted in those holidays being recorded as unauthorised absences and consequently being factored in to the consideration of whether or not a pupil had failed to attend regularly under EA s4441. 

Second, the Government issued statutory guidance which states that “Penalty notices can be used where the pupil’s absence has not been authorised by the school”.  This appears to suggest that penalty notices can be issued for any unauthorised absence, whereas the power under EA s444A only allows for the issue of penalty notices where the authorised officer has reason to believe one of the two EA s444 offences has been committed.

EA s444B(3) requires head teachers and authorised officers to adhere to this guidance and so head teachers and local authorities have effectively been pushed by Government policy into issuing penalty notices in cases where the legal basis for doing so is at best doubtful.

This policy change has created headaches for head teachers who, on the whole, are more concerned about ensuring children receive a high standard of education than handing out penalties. It has also sparked uproar among parents, who now face penalty notices for taking their children on holiday. These penalty notices are often wrongly described as ‘fines’, whereas they are not. Fines may only be levied following a conviction – a principle of English law since the 1688 Bill of Rights. Paying the fixed penalty notice, therefore, is essentially a way for a parent to buy his/her way out of a criminal prosecution. If a parent decides not pay a penalty notice, the authorised officer then has to choose whether or not to pursue a prosecution. 

The decision not to pay a penalty notice should not be taken lightly. If successfully prosecuted, parents face a criminal conviction and a fine of up to £1,000 under s444(1) and £2,500 under s444(1a). There is also the possibility of a three-month prison conviction under s444(1a). 

However, even if the decision is taken to prosecute a parent, the parent may have success in defending the prosecution. In a recent case involving a parent, Mr Platt, and Isle of Wight Council, it was held that a pupil who was absent for six days on a family holiday, but who had a 94 percent attendance, had not failed to attend regularly and there was therefore no case to answer. Isle of Wight Council is appealing that decision. It is to be hoped that the outcome of that appeal will bring clarity to the matter and resolve the unsatisfactory conflict between the Government’s guidance and the law.

James Adams, schools legal support at BLM

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