It is undeniable that the cost of going on a family vacation significantly increases during the school holidays. As the cost of living increases, more and more parents feel that the only way to afford the annual family trip is to take children away during the school term. Last year, one in ten school absences in Northern Ireland were reported to be due to unauthorised holidays, more pupils were reported in England and Wales to have been taken out of school for term time holidays than the previous year and parents have continued to petition the government to allow parents to take their children out of school for holidays.
Research published by the government in 2016 showed that there was a significant negative link between absence and attendance. Every extra day missed was associated with a lower attainment outcome. The government therefore places high expectations and duties on schools, parents and local authorities to ensure attendance. This article focuses on the legal duty of parents to ensure their children receive a regular, suitable education. This duty is not just an educational issue, and parents may also find themselves in criminal or family proceedings.
The legal duty on parents
Section 7 of the Education Act 1996:
“It shall be a duty of the parent of every child of compulsory school age to cause him to receive efficient full-time education suitable to his age, ability and aptitude, and to any special educational needs he may have either by regular attendance at school or otherwise”
Parent: this includes all those that hold parental responsibility for a child.
Compulsory school age: this begins on the prescribed day on or after the child reaches the age of 5 (31 March, 31 August and 31 December). It ends on the last Friday in June in the school year the child becomes 16. Despite the extension of the requirement to participate in education, training or employment until 18 under section 1 of the Education and Skills Act 2008, there is no duty on parents to secure the regular attendance of young people who are over the compulsory school age.
Suitable education: this means full-time education that is suitable to the child's age, ability, aptitude and any special educational needs they may have. In R v Secretary of State for Education and Science , Mr Justice Woolf held that education is suitable if it primarily equips a child for a life in a community of which they are a member as long as it does not prevent the child's options later to adopt some other form of life if they wish to do so.
Regular attendance: The most recent definition of regular attendance was given by the Supreme Court in Isle of Wight Counsel v Platt. The court held that regular attendance means "regularly in accordance with the rules". A child may have 98% attendance, but if there are absences outside of the school rules, then they have not had regular attendance for the purposes of section 7.
What happens if a parent breaches section 7?
If it appears to a Local Authority that a child is not receiving suitable education, it may issue a notice requiring a parent to satisfy the Local Authority that the child is doing so. If a child is not receiving a suitable education, there are a number of options including:
Education supervision orders
Care and supervision orders
Perhaps most worrying to parents is the prospect of criminal prosecution. Section 444(1) of the Education Act 1996 provides that a parent will be criminally liable if a pupil fails to attend regularly at school. This includes arriving at school late after the register has closed. Such cases will be prosecuted in the Magistrates Court.
Parents may be found guilty even if they have taken all reasonable steps to ensure attendance and they were unaware that their child was not attending school (Crump v Gilmore ).
The sentencing guidelines range from a conditional discharge to a fine. Where the sentence fits within this range will depend on factors such as the length of the period of education missed.
Section 444 of the same act provides six potential defences:
A leave of absence was given by an authorised person i.e.
The child was ill.
There was an unavoidable cause affecting the child (usually an emergency). As in a number of cases including London Borough of Islington v D , a parent’s lack of control of their child does not give rise to an “unavoidable cause” for their absence from school, even when that child has left the family home and is living elsewhere.
There was a day of religious observance.
No suitable transport arrangements made by the local authority, when the school is not within walking distance.
A child is of no fixed abode and the parent has an itinerant trade, the child has attended as regularly as the trade permitted and the child is over the age of 6 and has had over 200 attendances in the past 12 months.
Section 444(1A) of the Act provides a more serious offence of when a parent knows that their child is not attending school regularly and who causes them to do so without reasonable justification. The maximum sentence is 3 months custody. The sentencing guidelines give a range of a band A fine to a high level community order. Where the sentence will fit in this range will depend on a variety of factors including whether there is a refusal or failure to engage with guidance and support offered. The court will also place close attention to any previous convictions.
In the case of Platt (the case mentioned above which went to the Supreme Court on the definition of "regular attendance") the case was remitted back to the Magistrates court. Mr Platt had taken his child out of school for a 2-week holiday in Florida. Her attendance was around 90%. He was sentenced to a 12-month conditional discharge and £2000 in costs.
Sophia Stapleton is a barrister in chambers specialising in family, criminal and education law.