QUEEN'S BENCH DIVISION
London WC2A 2LL
B e f o r e :
MR JUSTICE OPENSHAW
|HAMPSHIRE COUNTY COUNCIL||Claimant|
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The Defendant was not represented and did not attend
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"If a child of compulsory school age who is a registered pupil at a school fails to attend regularly at the school, his parent is guilty of an offence."
It is provided in sub-section (3) that -
"The child shall not be taken to have failed to attend regularly at the school by reason of his absence at the school -
(a) with leave, [or]
(c) on any day exclusively set apart for religious observance by the religious body to which his parent belongs."
That defence is not directly in issue in this case.
a) The child concerned recorded 53 unauthorised absences from school during the period stated and had thus failed to attend regularly at his school.
b) The respondent had made substantial and significant contact with the school by both telephone and e.mail regarding her son's absence from school. This was established by the evidence of Sharon Allsop, Education Welfare Officer. The respondent also had co-operated entirely with the school and the various other agencies that had become involved in the situation.
c) The child concerned had behaved violently towards the respondent in that:
i) He threw furniture at the respondent and his sisterii) He hit the respondent and threatened to hit his sisteriii) He threw a computer monitor at the respondent
d) The respondent has discussed her son's behaviour at home with the Education Welfare Officer on numerous occasions.
e) It was accepted by both parties that the child concerned was taking controlled drugs and abusing alcohol on a regular basis and the education welfare officer had participated in referrals with the respondent and the school to numerous services and agencies with a view to trying to get the child concerned back to school. The police and the youth offending team were also involved.
f) The behaviour of her son over the last two years had caused the respondent to seriously consider taking her own life and she had taken an overdose in the past.
g) The respondent had taken every reasonable step to try and get her son to go to school."
"7 We were of the opinion that -
a) The respondent had acted reasonably at all times. She had sought and obtained help and had taken every step that a reasonable parent might be expected to take. It was impossible for the respondent to physically force her son to attend school.
b) The respondent acted as she did because she reasonably perceived a threat of serious physical injury that she or her daughter might face from her son if she tried to force her son to go to school. This was a realistic and imminent fear bearing in mind that her son had both used and threatened violence towards her and had also threatened violence towards her daughter. The level of the actual and threatened violence was continuing to escalate. The respondent's concerns were heightened further by her son's use of both alcohol and controlled drugs.
Accordingly we were satisfied that the respondent acted under duress of circumstances."
"Whether on the evidence adduced before us we were entitled to find that the respondent had acted under duress of circumstances in not ensuring her son's regular attendance at school."
"Unless and until Parliament provides otherwise, the defence of duress, whether by threats or from circumstances, is generally available in relation to all substantive crimes except murder, attempted murder and some forms of treason."
What Lord Justice Rose said in that case was cited, in turn, by Lord Justice Brooke in Re A (Children) (Conjoined Twins: Surgical Separation)  Fam 147 at 235, which is one of the authorities referred to by the justices in the case stated.
"Imminent peril of death or serious injury to the defendant or those to whom the defendant had responsibility is an essential element in the defence and that the perils operated on the mind of the defendant at the time that he commenced the otherwise criminal act so as to overbear his will."
" ..... first, English law does, in extreme circumstances, recognise a defence of necessity. Most commonly this defence arises as duress, that is pressure on the accused's will from the wrongful threats or violence of another. Equally however it can arise from other objective dangers threatening the accused or others. Arising thus it is conveniently called 'duress of circumstances'.
Second, the defence is available only if, from an objective standpoint, the accused can be said to be acting reasonably and proportionately in order to avoid a threat of death or serious injury.
Third, assuming the defence to be open to the accused on his account of the facts, the issue should be left of the jury who should be directed to determine these two questions: first, was the accused, or may he have been, impelled to act as he did because, as a result of what he reasonably believed to be the situation he had good cause to fear that otherwise death or serious physical injury would result; second, if so, would a sober person of reasonable firmness, sharing the characteristics of the accused, have responded to that situation by acting as the accused acted? If the answer to both those questions was yes, then the jury would acquit the defence of necessity would have been established."
(Court re-convened for the following)