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Do you have to go to school?

The Supreme Court has today ruled in the case of Isle of Wight Council – v – Platt [2017] UKSC 28. The case has received much media attention and the facts of the case are that Jon Platt took his children on holiday during term time in April 2015 and was issued a fixed penalty notice which he then refused to pay, claiming that his children attended over 90% of school sessions and that accordingly his children attended regularly pursuant to s.444(1) Education Act 1996.

Lord Neuberger, Lady Hale, and Lords Mance, Reed and Huges disagreed, ruling that, for the purposes of s444(1) Education Act 1996, regular attendance means 'attendance in accordance with the rules prescribed by the school.’

This means (a) that a parent must now obtain consent for all absences the child's school has not agreed, or face criminal prosecution, and (b) head teachers, not parents, now have the ultimate right not only to decide if a child should take time off school but, it can be argued, the right to decide whether to prosecute. In this case, the Isle of Wight’s Code of Conduct states:

‘It is for head teachers to determine whether or not such a request is exceptional; and to state the number of days granted. Each request can only be judged on a case-by-case basis but it is usual that head teachers will be sparing in their use of this discretion.’

To what extent will individual head teachers use their discretion, if, indeed, they are allowed any? Clearly, the expectation as far as that Council was concerned was that head teachers should not grant absences outside of the statutory exemptions contained in s.444(3) and (4) of the Act, i.e. with permission, or because of sickness, or any unavoidable cause, or for religious purposes, or (in the case where a parent can prove the school is not within walking distance and the local education authority failed to arrange transport, boarding or registration at a closer school.

Kent County Council’s guidance is that children must attend school regularly and on time during term time, save for illness or absence authorised by a head teacher, who may approve absences only in exceptional circumstances, examples of which include but are not limited to:

  • Service personnel returning from a tour of duty abroad where it is evidenced the individual will not be in receipt of any leave in the near future that coincides with school holidays,

  • Where an absence from school is recommended by a health professional as part of a parent or child’s rehabilitation from a medical or emotional issue.

  • The death or terminal illness of a person close to the family.

  • To attend a wedding or funeral of a person close to the family.

The Council will take a student’s previous record of attendance into account when the school is making decisions and considers ‘exceptional’ to mean ‘rare, significant, unavoidable and short’, implying that an event could not reasonably take place at another time, i.e. outside of school days. However, other councils may take a different view, perhaps, in the light of today’s ruling, not taking into account previous attendance or not allowing head teachers any discretion whatsoever to deviate from the statutory guidance.

It appears now that Council guidelines must now be consigned to the history books, because according to the letter of the judgment, each school is now able to set their own guidance, which will undoubtedly vary from school to school and from time to time.

Quite aside from the unwanted removal of part of the right for a parent to decide in his or her discretion what is in the best interests of the child, presumably every school (or, in practice, local education authority) will now need to produce its own set of guidelines, which inevitably will differ between authorities. Consequently, many more parents will now be criminalised in England and Wales generally, perhaps in some counties but not in others, depending on firstly each County Council’s guidelines and secondly, in the light of those guidelines, decisions a head teacher makes about whether to grant children leave of absence for doctor's appointments and family events like weddings and funerals.

For those who already have children and who are getting married or entering into a civil partnership, the headteacher can legitimately say that a weekday wedding is not an unavoidable event, because (at considerably greater cost) the same wedding can take place on the weekend. For the travel industry, this ruling represents a boon and will no doubt reinforce the pricing disparity between holidays within and without term time. Employees with children will inevitably face increased competition with their colleagues for time off during school holidays (perhaps leading to holidays booked several years in advance), whilst employers could potentially deny those without children time off during school holidays citing business continuity reasons and a preference to grant holiday requests to those with children.

All-in-all, this case represents a missed opportunity to tidy up the law, although for public policy reasons it is not surprising that their Lordships ruled in favour of the Appellant: a ruling in favour of the Respondent would have potentially meant judicial sanction to taking children out of school without authorisation, thus rendering teachers acting in loco parentis moot.

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