Legal Update: School attendance and holidays

At the start of April, the Supreme Court ruled in a high-profile case on the issue of taking a child out of school during term time. A year previously, Jon Platt took his youngest daughter out of school for seven days to go on a family holiday to Disneyland Florida during term time without permission. He was fined as a result. Having refused to pay the fine, Mr Platt won his case at Isle of Wight Magistrates Court, which held that he had "no case to answer" because of his daughter's high attendance in school. However, the case ended up in the Supreme Court, which considered whether or not Platt committed an offence by failing to ensure that his daughter "attended school regularly", as required by section 444(1) of the 1996 Education Act. The court overturned the Isle of Wight decision, ruling that "regularly" did not mean "evenly spaced" or "sufficiently often" but instead "in accordance with the attendance rules."

What is the law on school attendance?

All schools must maintain admissions registers and all schools except boarding schools must have an attendance register.

A school will authorise an absence if:

• The child is too ill to attend and the school accepts this as valid
• The parent gets advance permission of the school e.g. for a holiday, religious observation
• The child has been excluded
• The child is on study leave
• The child has a medical or dental appointment
• The child is being educated off-site

In addition to where a school has given permission, there are a number of allowances made under the law when a child can be absent. These include absence for sickness; for a religious observance; because they have no fixed address or because the child doesn't live within walking distance of the school and the local authority has failed to discharge its duty to make travel arrangements.

Schools must regularly inform the local authority of any pupils who are regularly absent from school, have irregular attendance, or have missed 10 school days or more without the school's permission.

The rules are different in Wales, Scotland and Northern Ireland and for independent and private schools, which must monitor attendance but have their own policies and procedures.

What are the limitations on taking holiday?

Schools used to have the discretion to allow up to 10 days' term-time holiday each year in "special circumstances". However, the rules for state schools in England were tightened in September 2013. To take a child out of school during term time, their parent must make an application to the head teacher in advance (as a parent the child normally lives with) and head teachers can only give permission for term-time absences in "exceptional circumstances", such as visiting seriously ill family, attending a close family member's funeral or if a family member is in the Armed Forces and returning from operations.

What sanctions can be put in place?

Parents can be issued a fixed penalty notice by the school, local authority or police, for their child's non-attendance. The penalty is £60, rising to £120 if paid after 21 days but within 28 days. If this is not paid, the local authority can proceed to prosecution or withdraw the notice. The local authority also can prosecute parents for non-attendance without issuing a fixed penalty notice. If found guilty at a magistrates' court, the individual could end up with a criminal record and face a fine of up to £2,500, a community order or a jail sentence of up to three months. The court also issues a parenting order. Department for Education figures show that councils issued 157,879 fixed penalty notices in 2015/16 for unauthorised term-time absences, with 15,828 parents prosecuted for non-payment of the fine. The Department for Education welcomed the Supreme Court judgment as removing uncertainty around school attendance, stating that it would update schools and local authorities accordingly.

For more information, see the Child Law Advice Service at http://childlawadvice.org.uk

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IMPLICATIONS FOR PRACTICE

• The Supreme Court has held that attending school "regularly" means attendance in accordance with the rules prescribed by the school and not "sufficiently frequent attendance". This means that a child must attend school on every day that the school requires him or her to do so and failure to do this may constitute an offence.
• At present, the parent of a child aged between five and 16 attending an English state school is unlikely to get permission for a term-time holiday (private schools are exempt). If they take them out of school regardless of permission being granted, they could face a £60 fine or worse.

Legal Update is produced in association with experts at Coram Children's Legal Centre www.childrenslegalcentre.com

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