England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
CROWN OFFICE LIST
(DIVISIONAL COURT)

		Royal Courts of Justice Strand London WC2
		19th November 1998

LORD JUSTICE ROSE: This is a prosecutor's appeal by way of case stated against a decision of the Bath and Wansdyke Magistrates. On 11th June 1998 they acquitted the respondent, Mrs Warman, in relation to an information which alleged that she was the parent of a child of compulsory school age who had failed to attend school regularly over a period of six months, prior to the date of the information, contrary to section 444 of the Education Act 1996.

The girl was born on 8th October 1981. Her sixteenth birthday in consequence fell at or about the midpoint of the Autumn term in 1997. She was undoubtedly, as the Justices found, of compulsory school age at the period to which the information related. She was one of ten children born to her mother, the respondent. Eight children live at home, six at this time were of compulsory school age and all, save the eldest, the girl featuring in this information, attended school regularly. In June/July 1997 the girl in question, as I have said then being a few months off her sixteenth birthday, left home to live with her long-term boyfriend. The Justices found that she went to live some considerable distance away in Devon. They further found that her mother did not know where she was living until Christmas 1997, by which time of course the girl was over sixteen. The attendance certificate before the Justices (dated 3rd February 1998) showed, as I have indicated, that the girl failed to attend school at all during the 1997 Autumn term. The Justices found that the mother objected to her daughter leaving home but could not stop her. She did not contact the police or the social services because on a previous occasion, when another daughter had left home, she had contacted the police but they had taken no action as they did not consider her to be at risk. In view of this girl's age, her mother did not consider her to be at risk.

There was a meeting between the mother and the Education Welfare Officer on 26th November 1997 in Bath at which the mother explained that her daughter had left and she did not know where she was. She was asked to contact the Education Welfare Officer if her daughter contacted her. When she contacted her at Christmas, the mother did contact the Education Welfare Officer and there followed a meeting in mid-January attended by the girl and her mother. The girl impressed the Education Officer, the Justices found, as being confident and self-assured and she gave the assurance that she was living in Devon and had no intention of continuing her education there or anywhere else. In fact, by the time the matter came before the Justices, the girl had returned home, then being pregnant. The Justices were referred to Jenkins v. Howells [1949] 2 KB 218 and they concluded, as appears from paragraph 3 on page 6, of the Case that, in the light of that authority, any unavoidable cause within the provisions of the statute must be one which effected the child. They say this:

"We thought that to be the position in this case, in that it was the child who had deliberately removed herself away from the family home and who had decided not to tell her mother of her whereabouts."

In consequence, as I have said, they dismissed the information. They pose two closely related questions for the opinion of this court to which, in a moment, I shall return.

The relevant provision under which the respondent was prosecuted is now contained in section 444 of the 1996 Education Act which is a consolidating statute. It provides, in its material part, as follows:

(1) If a child of compulsory school age who is a registered pupil at a school fails to attend regularly at school, his parent is guilty of an offence.

(3) The child shall not be taken to have failed to attend regularly at the school by reason of absence from the school --

...

(b) at any time when he was prevented from attending by reason of sickness or any unavoidable cause."

On behalf of the appellant authority Miss Steyn submits that the facts found by the Justices did not give rise to unavoidable cause. The reasonableness of the mother's actions and the fact that she had, as she plainly had on the finding of the Justices, lost control of this mature young woman are, submits Miss Steyn, irrelevant. Unavoidable cause is not to be equated with the reasonableness or otherwise of the parents' behaviour. So far as this child was concerned, there was nothing to prevent her from attending school. The fact that she chose to leave home and live elsewhere did not give rise to an unavoidable cause.

In support of those submissions, in addition to Jenkins and Howells, to which I have referred, Miss Steyn drew the court's attention to two authorities. The first, Spiers v. Warrington Corporation [1954] 1 Q.B. 61 was an occasion for the consideration of the provisions of section 39 of the 1944 Education Act. It is to be noted that the provisions of section 444(3)(b) of the 1996 Act which, as I have said, was a consolidating statute, are identical to the provisions of section 39(2)(a) of the 1944 Act. Lord Goddard CJ at page 67 said this, having referred to the circumstances in which section 39 came to be enacted:

"It appears to the court highly probable that the reason for that was that it was considered desirable to abolish the decision in Maher's case [he was there referring to London County Council, ex parte Maher [1929] 2 KB 97] and to substitute for it a new section which would not leave it open to justices to find any reasonable excuse parents might set up, but to confine the excuses for not sending a child to school to the reasons set out in subsection (2)(a), (b) and (c). That is the only construction which this court feels able to put upon section 39(2).

We were reminded of Jenkins v. Howells, which was heard in 1949, and in which I was sitting with Oliver and Cassells JJ. I do not hesitate to say that if it had been open to us to find that there was a reasonable excuse for not sending the child to school, we would have found it. It was a very hard case, but we felt that the statute was too strong; we could not go into the question of reasonableness."

In Crump v. Gilmore (1969) 68 LGR 56 Lord Parker of Waddington CJ, sitting with Ashworth J and Cantley J at page 59 referred to the facts of that case which related to twelve

"absences from home and it is found that on one occasion the child went to Southampton, on another occasion to Waterloo and yet another she ran away and hid in a barn. In addition to that the Justices go on to hold that the parents had no knowledge until afterwards of these 12 absences. Further that the parents had taken all reasonable steps to ensure that the child had left home in the morning to attend school and they had no knowledge that she had absented herself from the school until later. When the parents become aware that she was not at school they obtained police assistance to find her. Finally they say once the parents had become aware of her absences they had ensured one hundred percent attendance at school."

Lord Parker went on, lower down the same page:

"Section 39(1) is creating an absolute offence in this sense that it is unnecessary in order to create the offence to show any knowledge on the part of the parent of the child's absence or any neglect on their part to ensure that the child did regularly attend. Those are factors which, as the Justices' Clerk appears to have advised them, were matters wholly in mitigation and did not effect the offence at all."

The Lord Chief Justice concluded his judgment with the comment that:

"Although the matter was being remitted to the Justices with a direction to convict they might think it was a case for an absolute discharge."

The questions posed for the opinion of this court by the case stated are these:

"Whether on the facts found by us there was evidence to support our decision and in particular:

Whether as a matter of construction of Section 444(3)(b) of the Education Act 1996, a deliberate decision on the part of the child to remove herself from the family home and refuse to tell her mother her whereabouts, is capable of being an 'unavoidable cause' of the child's absence from school."

Miss Steyn submits that those questions should be answered in the negative. In my view, she is right so to do. However hard it may appear to be, in my judgment, the construction placed upon this statutory provision in the authorities to which I have referred, make the conclusion inescapable that the circumstances of this case did not give rise to unavoidable cause for the child's absence from school. It might be thought a little surprising that the mother in this case, having regard to the history of the family, insofar as it appears from the facts found by the Justices, was prosecuted in relation to this matter, bearing in mind that, as I have said, the girl was, albeit of compulsory school age, on the verge of her sixteenth birthday. She was also, as the Justices found, a girl of some maturity. One can well understand that it is of the highest importance that the parents of children should be persuaded to comply with the statutory obligation which bears upon them in the terms of the section of the Act to ensure that their children do go to school. But, for my part, I have some doubt as to whether, in the particular circumstances of this case, the prosecution of the mother for a criminal offence was a wholly desirable exercise. That said, for the reasons already given, there can be no doubt that the Justices were wrong in finding as they did.

Accordingly I, for my part, would remit the matter with a direction that they convict. I would echo the words of the Lord Chief Justice in Crump v. Gillmore. Although the question of penalty is a matter for them, the justices might very well think that the appropriate penalty, in the present case, is one of absolute discharge.

MR JUSTICE MITCHELL: I agree.

MISS STEYN: I am grateful, my Lord.

LORD JUSTICE ROSE: Thank you very much for your help,

Miss Steyn.

(Discussion with Associate)

LORD JUSTICE ROSE: Miss Steyn, the court's attention has very properly been drawn to the question of whether there should be a reporting restriction in relation to the identity of the child. I am bound to say that off the top of my head I am not sure what the answer is because she is now over 16. What we need is the Children and Young Persons Act, section 39, I think.

MR JUSTICE MITCHELL: Section 49 ...

LORD JUSTICE ROSE: I do not suppose you have your Archbold?

MISS STEYN: I am afraid I do not.

LORD JUSTICE ROSE: I do not suppose you thought about this. Would it inconvenience you to come back at

2 o'clock when you have had a chance to consider the matter?

MISS STEYN: No, my Lord.

(The Court Adjourned)

LORD JUSTICE ROSE: Yes, Miss Steyn.

MISS STEYN: My Lord, the relevant provision is set out in section 39 of the Children and Young Persons Act 1933. I have photo copies of that section. Would you like me to hand them up?

LORD JUSTICE ROSE: Thank you.

MISS STEYN: Section 39(1) gives the court power in relation to any proceedings in any court to direct that no newspaper report of the proceedings shall reveal the name, address or school, or include any particulars calculated to lead to the identification of any child or young person ...

LORD JUSTICE ROSE: This girl is a young person because she is under 18 but she is not a child because she is over 14.

MISS STEYN: That is right. The definition is section 107. It used to be 17 for a young person. It has been amended by the Criminal Justice Act 1971. Your Lordships do have a discretion to make a restrictive reporting order in this case.

LORD JUSTICE ROSE: I have had an opportunity of looking at one or two of the authorities and in particular there is a decision in ex parte Crook v. Godwin in 1995 in the Court of Appeal Criminal Division which deals with the procedure if we are to make an order but we have to have a good reason for making an order, do we not?

MISS STEYN: That is right. In this case there are a number of factors which might weigh against making an order. First, the age of the child in question, the young person in question although there is a discretion. The fact she is at the upper limit is obviously a factor which would go against making an order. But, also, she is not a victim of any crime, nor has she been convicted of any crime. Your Lordship's judgment does not in any way impugn her actions or embarrass her and so the need for privacy in this case may be less because of that. I am not sure whether they are any factors ....

LORD JUSTICE ROSE: You may not know and in a moment I will ask the gentleman of the press if he knows, was there any restriction or conversely any report of the proceedings in the Magistrates' Court?

MISS STEYN: I do not know whether there was a report. I do know there was no order made and no application was made for an order.

LORD JUSTICE ROSE: Because obviously if the name is already in the public domain that would be a very good reason for not making one.

MISS STEYN: Yes, my Lord. Unless I can assist you further. Those are my submissions.

(Rose LJ then addressed a representative from the Press)

LORD JUSTICE ROSE: You raised this, is there anything you would like to say about it?

PRESS REPORTER: No. I have nothing to add to what has already been said.

LORD JUSTICE ROSE: Do you happen to know whether there was, I do not know if you are a local reporter ...

PRESS REPORTER: I did not think that any order had been made today.

LORD JUSTICE ROSE: No. That is right. We certainly did not make an order.

PRESS REPORTER: I knew that a good reason is needed or,

as far as I have always been aware, there have to be exceptional circumstances. But it is entirely up to your Lordships' discretion. There is nothing more I can add.

LORD JUSTICE ROSE: Thank you very much. We shall not make an order. Thank you both for your help.

- - - - - - - -