A break for term-time holidays?

Since 2013, maintained schools have only been able to grant parents leave to take their child out of school in ‘exceptional circumstances’, leading to parents who have taken their child on holiday without leave being given penalty notices.

If the fines on the penalty notices have not been paid, parents have been prosecuted under section 444(1) of the Education Act 1996, which provides: ‘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.’

The case of Isle of Wight Council v Platt [2016] EWHC 1283 (Admin) arose from a prosecution for that offence. The Administrative Court considered whether the Isle of Wight magistrates were entitled to take into account the child’s wider attendance record and not just the period when the child had been on holiday when deciding whether the child attended school ‘regularly’.

The court held the magistrates had acted reasonably, stating: ‘I do not consider that it is open to the authority to criminalise every unauthorised holiday by the simple device of alleging in the information that there has been no regular attendance in a period limited to the absence on holiday.’

The case has now reached the Supreme Court, with the council arguing that the court’s approach was wrong and that seven consecutive days’ absence could not constitute ‘regular attendance’.

Counsel for Mr Platt had argued a narrow case and a wider case. The narrow case was that the issue of whether there had been ‘regular attendance’ was one of fact and degree for the magistrates, the child’s attendance record was over 90 per cent, and the magistrates reached a reasonable conclusion which could not be challenged on appeal. The wider case was that section 444(1) was too vague to form the basis of a criminal offence, let alone a strict liability offence.

The court did not rule on the wider issue but the Department for Education has intervened in the Supreme Court and it is likely that it will now be addressed.

Should Mr Platt’s arguments on the wider issue succeed, then the government will need to consider new and more prescriptive legislation if it wants to continue to discourage parents from taking their children on holiday during term time to the extent that it is criminalised.

Across the country there is limited appetite for such a step. Records show that there is a wide range of practice by councils: many issue no penalty notices at all, some issue penalty notices but do not enforce them, and others take the same attitude as the Isle of Wight Council.

Since the start of the case, many councils which did issue penalty notices or prosecute non-payers have now ceased to do so. While this may have been motivated by a desire to avoid litigation or controversy, it could be a reflection of a developing view that issues of absence from school for family holidays are best managed by co-operative dialogue between a school and parent, rather than rigid and punitive rules from central government.

Fenella Morris QC and Anna Bicarregui are barristers at 39 Essex Chambers

@39EssexChambers www.39essex.com

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