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Term-time holidays after Platt v Isle of Wight – still as clear as mud

When will a parent be convicted for taking his school-age children on an unauthorised term-time holiday?

Is there a threshold of attendance, presumably less than 100%, above which parents can safely take children on term-time holidays regardless of what the Headteacher says about it, and below which Local Authority prosecutions in the Magistrates’ Court will succeed? Those were the battle lines drawn in the media in mid-May 2016 by the parties in Isle of Wight v Platt [2016] EWHC 1283 (Admin). When Mr Platt succeeded in his case, a flurry of media commentary followed. Until today, however, none of that commentary will have been based on the actual judgment handed down by the Court – which turns out to be significantly narrower than much of the commentary suggested.

Mr Platt suggested that 90-95% attendance was perfectly acceptable, relying on a document from the school which said that such a level of attendance was “satisfactory”, but conceded that if his daughter’s attendance percentage had been in the 80s, that may have been a different matter.

The full judgment, now available, draws the battle lines somewhat more narrowly. Mr Platt had been charged under s444(1) Education Act 1996 with failing to secure “regular attendance”, based on an unauthorised 7 day term-time holiday in 2015, before which his daughter’s attendance was 95%, and which brought it down to 90.3%. Taking into consideration only the period of the unauthorised holiday itself, of course, the child’s attendance percentage would not have been 90.3%. It would have been 0% for the seven days in question – the sort of point which may appeal to some lawyers, but which many teachers would say was evading the question and trying to be too clever by half.

The magistrates found that they were entitled to take the whole picture of attendance into account, not just the days of the holiday. They noted that the overall attendance percentage after the holiday was 90.3%, which was within the 90-95% range stated to be satisfactory in the school’s document, and found that Mr Platt had no case to answer i.e. that no reasonable tribunal could conclude, on the basis of this evidence, that Mr Platt had failed to secure regular attendance.

Significantly, the only question put before the High Court on appeal was whether or not it was an error of law for the magistrates to consider any dates other than the dates of the holiday itself, which were the only dates specified by the prosecuting Local Authority in its summons, when making their decision. On the facts, this question went to whether the relevant attendance percentage was 0% or 90.3%. The High Court did not consider the question of whether or not 90.3% attendance was capable of being regular.

The High Court was referred, as the magistrates had been, to LB Bromley v C [2006] EWHC 1110 (Admin). In that case, the reasoning of the magistrates had been far less lucid than it was in Platt and was challenged on a number of bases which were not relevant in Platt. In C, the attendance percentages for three children had been in the low 80s. The magistrates had acquitted. The High Court found that while the question of regular attendance was a matter of fact and degree for the magistrates, no reasonable Court could conclude that attendance at those levels was regular, so that the magistrates were obliged to convict.

In Platt, the High Court found that the magistrates were not only entitled to take the broader picture of absence into account, they were obliged to do so. The Court expressed no view as to what the definition of “regular attendance” is, or should be. It noted that if it had considered it necessary to resolve this question in order to decide the case before it, it might well have wished to add the Department of Education as an Interested Party.

Platt is therefore not authority for the proposition that attendance of 90% or above is satisfactory. Insofar as there is any useful authority on this point, C remains useful for its conclusion that attendance in the low 80s could not reasonably have been considered regular, although it is only a single case and it concerned absences in 2003-4, since which time almost an entire generation has passed through the nation’s schools and the educational landscape has changed considerably. Proper consideration of this issue by the Courts, with appropriate representations from the Department of Education, is probably long overdue.

Until the Courts grasp that nettle, it is useful to remember that:

  • It is for individual schools to decide whether or not to authorise absence during term time.
  • School leaders will only authorise such absence in exceptional circumstances. In this regard, their hands are tied by Reg 7 Education (Pupil Registration) (England) Regulations 2006, as amended. This has not changed.
  • Only unauthorised absences count towards prosecutions.
  • School leaders will normally authorise reasonable absences for religious reasons. Many schools will have specific dates built into their term plans for the main religious holidays observed by significant groups of their children. However, even if permission for religious absence is refused, it will not count towards prosecution if it is on a day “exclusively set aside for religious observance by the religious body to which [the child’s] parent belongs” – s444(3)(c) Education Act 1996
  • Sickness and other unavoidable causes do not count towards prosecutions either – s444(3)(b)
  • Local Authorities need to have, and observe, a Code of Conduct in making their decisions as to when to prosecute and when not to. They may be reviewing these Codes of Conduct following this judgment.
  • When making a decision as to whether or not attendance is regular, the Court will take account of all the circumstances of the case i.e. they will look at attendance across the term, or across the year. Platt is authority for this, as is C.
  • There is no attendance threshold below which parents will automatically be convicted, or above which parents can take their children out of school with impunity.

Finally, while not strictly a legal point, anyone involved with education will be concerned about children being absent. There are clear links between attendance and achievement in school. As such, the threat of prosecution is far from being the only reason, or the best one, for parents to make sure their children attend school regularly.

Ross Beaton / 31st May 2016


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