Term time holidays

In the aftermath of the High Court's recent ruling, where are we when it comes to prosecutions for failing to ensure regular attendance at school? Richard Freeth explains.

The recent High Court case between the Isle of Wight Council and Mr Platt regarding the prosecution for failing to ensure his daughter’s regular attendance at school was widely reported and has caused some confusion in the approach to be taken by schools and local authorities in respect of parental requests for term time holidays and whether legal action is still available to enforce regular attendance at school.

Facts

Mr Platt made a request to his daughter’s school for a two week holiday in term-time to take place during April 2015. The request was refused by the headteacher but the holiday was taken in any event. The matter was referred by the school to the Isle of Wight Council for action and penalty notices were issued for the two week absence. The penalty notices went unpaid and so the matter proceeded to the magistrates court under section 444(1) Education Act 1996 – where an offence is committed by a parent when a child of compulsory school age who is a registered pupil at a school fails to attend regularly at that school.

In Mr Platt’s case, the summons issued by the Isle of Wight Council stated that the offence was committed solely between 13 and 21 April 2015 – the period of absence. The Council’s case was that there was no lawful reason why there was a failure to attend regularly during that period. It was argued for Mr Platt that it was necessary to consider the issue of regular attendance across a wider period of time and the magistrates agreed with that decision – they decided that consideration of regular attendance was not limited to the period set out in the summons and they were entitled to look at a wider period when considering whether the offence was made out.

The matter was then considered by the High Court who upheld the decision of the magistrates. It was decided that whether a child attends regularly is a question of fact and degree that has to be considered on all the circumstances of the case and not just with reference to the dates set out in the summons. As such, the fact that the absence arises due to a term time holiday does not necessarily mean an offence has been committed but it could lead to a finding that there has not been regular attendance when considered alongside other evidence relevant to the circumstances of the case.

Does the case change the position on authorisation of term-time holidays?

No – the case does not amend the legal position on term time holidays at all. The requirements of the Education (Pupil Registration) Regulation 2006 remain intact and schools may only authorise holidays during term-time where there are exceptional circumstances linked to the parental request.

Can we take action against unauthorised term-time holidays?

Yes – the legal framework of penalty notices and the potential for criminal proceedings in the magistrates court remains in place. The possibility of such action should still be communicated with parents making requests for term time holidays. The decision of the High Court does not prohibit action being taken.

However, schools and local authorities will need to carefully consider whether a penalty notice is appropriate in each case of absence. In doing so, it will be necessary to consider the child’s level of attendance over a longer period of time to determine whether there has been regular attendance and, furthermore, to benchmark that level of attendance against school or local authority policies on attendance and prosecutions.

Richard Freeth is a partner at Browne Jacobson. He can be contacted on 0121 237 3961 or This email address is being protected from spambots. You need JavaScript enabled to view it..