UKSC 28, 6 April 2017
Lord Neuberger, Lady Hale, Lord Mance, Lord Reed, Lord Hughes
The Supreme Court has held that a parent commits the criminal offence of their child failing to attend school “regularly” if the child fails to attend in accordance with the rules prescribed by the school. The Supreme Court rejected the argument that regular attendance at school means sufficiently frequent attendance. A parent therefore commits a criminal offence by taking their child out of school for an unauthorised holiday even if the level of their attendance at school is otherwise beyond reproach.
Section 444(1) of the Education Act 1996 states that a parent is guilty of a criminal offence if their child of compulsory school age fails to attend regularly at school.
Where a child fails to attend regularly at school, the local authority can issue a penalty notice to the parent which, if paid within the specified time, will have the effect that the parent will not be prosecuted. The amount of the penalty is fixed by secondary legislation (The Education (Penalty Notices) (England) Regulations 2007): the penalty is £60 if paid within 21 days, rising to £120 if paid within 7 days after that.
If the penalty notice is not paid, the local authority can instigate criminal proceedings in the magistrates’ court. The offence is a summary offence punishable by a level 3 fine (£1,000).
Mr Platt had a seven-year-old daughter, whom he wanted to take on a one-week holiday during school term time. The head-teacher refused permission for the holiday but Mr Platt took his daughter on holiday anyway.
The head-teacher referred the matter to the local authority’s education welfare officer who issued a penalty notice. Mr Platt failed to pay in accordance with the penalty notice and proceedings were therefore brought against him in the magistrates’ court under s.444(1), Education Act 1996.
Mr Platt pleaded not guilty and the case proceeded to trial on October 12, 2015. At the conclusion of the prosecution case, the magistrates ruled that there was no case to answer and acquitted Mr Platt on the basis that his daughter’s attendance at school was 90.3% even once the unauthorised holiday was taken into account. When the head teacher had refused permission for the holiday, the refusal letter had stated that a child’s attendance is considered to be satisfactory if it is between 90% and 95%. Accordingly the magistrates held that Mr Platt’s daughter had not failed to attend school regularly and therefore no criminal offence had been committed.
The Divisional Court
The local authority appealed to the Divisional Court. The Divisional Court found for Mr Platt and held that the magistrates, when considering whether Mr Platt’s daughter had attended school regularly, had been entitled to take into account the child’s overall attendance at school, rather than just concentrating on the dates of the unauthorised holiday.
The Supreme Court
The Supreme Court allowed the authority’s appeal. The Supreme Court had to choose between three possible interpretations of the word “regularly”:
(i) “at regular intervals”; e.g. if a person attends church every Sunday, they are said to attend church regularly;
(ii) “sufficiently frequently”; e.g. if a person is described as a “regular” at the pub, it is because they are there frequently;
(iii) “in accordance with the rules”; on this meaning, one unauthorised absence means that the person has failed to attend regularly.
The first interpretation plainly could not be the correct one for the purposes of s.444(1) of the Education Act 1996. If it were, a child would be attending school regularly if they only attended every Wednesday. The Supreme Court disapproved previous case law which had suggested that the meaning of “regularly” was the second of the above interpretations i.e. that a child must attend school sufficiently frequently. The Supreme Court held that that was not the correct interpretation for a number of reasons.
(i) The Education Act 1944 (the predecessor to the 1996 Act) had been intended to increase the scope of compulsory education.
(ii) Other features of the legislation demonstrated that Parliament was seeking to tighten the law on parents whose children do not attend school; for example, Parliament removed the open-ended defence for parents that their child had a “reasonable excuse” for not attending and instead prescribed an exhaustive list of circumstances in which the offence would not be committed.
(iii) The wording of various provisions of the 1996 Act (on boarding schools, absences for religious reasons and children of no fixed abode) appeared to suggest that an unauthorised absence for just one day was sufficient for the s.444(1) offence to be committed.
(iv) If “regularly” meant “sufficiently frequently”, the law would be too uncertain and parents would not be able to know with any certainty whether they would be committing a criminal offence by taking their child on an unauthorised holiday of a particular duration.
(v) There are good policy justifications for not allowing parents to take their children out of school for unauthorised reasons: absences are disruptive to the pupil concerned, their peers, the school staff, and the Supreme Court called such an approach “a slap in the face to those obedient parents who do keep the rules”.
The Supreme Court acknowledged that the interpretation which it was favouring could have harsh consequences: one day’s unauthorised absence could lead to prosecution. However the Court noted that a parent could avoid prosecution by paying the penalty notice served on them and, if a prosecution were brought, the magistrates’ court could impose an absolute discharge in appropriate circumstances.
The Supreme Court remitted the case to the Isle of Wight Magistrates’ Court for the trial to be concluded.