England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT

		Royal Courts of Justice Strand London WC2A 2LL
		13 May 2016

LORD JUSTICE LLOYD JONES:

1. This is an appeal by way of case stated from a decision of the Isle of Wight magistrates on 12 October 2015. The facts as set out in the case stated are as follows:

"1. On the 20th July 2015, information was laid and a summons issued that the respondent, between the 13th April and 24th April 2015, being the parent of [M], date of birth 24th May 2008, a child of compulsory school age who was registered at Bembridge Primary School, failed to attend the school regularly contrary to S444(1) of the Education Act 1996.

2. The respondent appeared before the Isle of Wight Magistrates' Court sitting at Newport on the 10th August 2015 and entered a Not Guilty Plea. At that hearing, the charge was amended in that the dates now read between 13th April and 21st April 2015.

3. The Preparation for Effective Trial form was completed on the 10th August 2015 and signed by the Prosecutor. This recorded the following:

(a) That the statement of Karen Pothecary, the Education Welfare Officer could be read.

(b) That Mr Platt accepted that [M] was absent from school between the 13th and 21st April and that the issue for the court to decide was whether the child had attended school regularly.

(c) An additional issue noted on the form is that the child's living arrangements were inaccurately recorded in the witness statement.

(d) The trial was listed for the 12th October 2015.

4. Prior to the trial being called on Mr Spoors, solicitor for the respondent, provided the case of London Borough of Bromley v C, [2006] EWHC 1110 (Admin) upon which he intended to rely, to the court and the Isle of Wight Council prosecutor. Both advocates asked for a short period of time to have discussions and invited the justices to read the case whilst that took place.

5. The IWC prosecutor outlined the case setting out the policy applied by the school, the criteria considered when dealing with requests for authorised absence, and that in this case a fixed penalty notice had been issued.

6. We heard no live evidence from the prosecution. The statement of Karen Pothecary was read pursuant to Section 9 of the Criminal Justice Act 1967 and the exhibits referenced in her statement. [Those exhibits included the policy applied by the school in deciding whether to authorise the absence, the fixed penalty notice and subsequent increase notice for non-payment, the letter before action regarding non-payment of the fixed penalty; the attendance record for the child; an e-mail sent by Mr Platt setting out the background in more detail; and the response from the Education Welfare Officer informing Mr Platt that they intended to pursue prosecution.]

(a) The facts set out in the statement were that [M] is a registered pupil at Bembridge Primary School, that her father is Jonathon Platt and that [M] lives with her mother. That Mr Platt was responsible for removing [M] from school and taking her on holiday.

(b) The school sent a referral pack to the Education Welfare Officer on the 29th April which included the holiday request form and accompanying letter from Mr Platt completed on the 30th January 2015, the response from the headmistress refusing to authorise leave on the 9th February and the warning that a fixed penalty would be issued if he took the holiday.

(c) The code of conduct was considered to ensure the correct procedures had been followed. The fixed penalty was authorised for issue, and the notice was sent to Mr Platt on the 14th May 2015 with a deadline for payment of the 3rd June 2015 accompanied by an invoice. This was followed by a further invoice on the 4th June 2015 as the enhanced payment of £120 was now required with a deadline for payment of the 10th June 2015.

(d) On the 10th June, the increased fixed penalty had not been paid. On the 1st July 2015 a letter was sent by Miss Pothecary to Mr Platt advising him that if the fixed penalty remained unpaid the matter would proceed to prosecution.

(e) Mr Platt then phoned the officer and said he would e-mail in an explanation and a reply was sent explaining why the notices had been sent and that the matter was now to be directed to the court.

(f) The document exhibited at KP07 was [M]'s attendance record which showed an analysis of her attendance between the 1st September 2014 and the 7th July 2015.

(g) The email from Mr Platt was read to the court and clarified that the living arrangements for [M] were split 50:50 between her mother and father. It confirmed that at the time the application was made for unauthorised absence [M]'s attendance was 100%. This was confirmed by the form signed off by the head teacher included in the referral pack.

(h) The email also made it clear that at the time the holiday was booked, he had sought permission of his ex-wife to take the girls on holiday. It would appear that on the day he made that booking his ex-wife also booked a holiday for herself and the girls during term time in February for which she had not sought his permission. The reply from Miss Pothecary made it clear that those circumstances were taken into account by the school and as a result the penalty notice for Mr Platt related solely to the absence in April and not for the absence in February.

(i) The attendance record exhibited showed only two periods of unauthorised absence. Those were the week commencing the 9th February 2015 amounting to 10 sessions; and the 7 day absence from the 13th April 2015 to the 21st April 2015, amounting to 14 sessions.

7. At the conclusion of the prosecution case the defence submitted that there was no case to answer on the basis that an essential element of the prosecution case was missing namely that the child had failed to attend school regularly. In this case, the child had attended regularly. The attendance register showed attendance at 92.3%.

8. The case of London Borough of Bromley v C was referred to. The defence submitted that Mr Platt was being prosecuted because he took his child out of school for a holiday. It was contended this case confirms that it is not a crime to remove a child from school for a holiday. The offence under S444 Education Act 1996 is whether the child has failed to attend regularly. The application form completed by Mr Platt says that 90-95% attendance is satisfactory. If the attendance percentage was in the 80s that would be a different issue. The Act does not define 'regularly'.

9. The prosecution argued that there was a case to answer. That it was a question of fact and degree as to whether the child had attended regularly and that effectively for every 4.5 days' attendance there was half a day's absence.

10. The prosecutor reminded the court of the e-mail sent by Mr Platt. It was submitted that Mr Platt was aware that [M] was absent in February and understood that the child needed to attend school. The prosecutor made it clear that Mr Platt would not have authorised that absence and had little choice. The mother had done that and the mother had been penalised.

11. The prosecutor submitted that in April 2015 Mr Platt had then taken his daughter out of school for 14 sessions and thinks that is acceptable. He argued that it is either one thing or the other. It was submitted that if you take the two periods together from February and April, the child was absent for a total of 24 sessions.

12. Although we had sight of the attendance register, we asked whether a breakdown of the attendance percentages were available for the time period up to the 12th April and as at 21st April. The prosecutor advised the court that up to the 12th April 2015, the attendance rate was 95%, at the end of the 21st April it was 90.3%.

13. We were advised by our legal adviser that there are only two situations in which we could find no case to answer, the relevant situation to this case being the submission that an essential element of the prosecution case was missing. Namely, had the prosecution established a prima facie case that [M] had failed to attend school regularly.

14. It was made clear that we were not looking at whether we would acquit or convict on the evidence laid before the court, but whether a reasonable, properly directed tribunal could convict on the evidence.

15. The case law referred to was explained in the following terms and was on par in that the absences in that case did not fall under the exemptions set out in the Education Act 1996. On that basis, the question the court has to ask is, 'has the child attended school regularly?' The judgment makes it clear that the attendance record is a starting point when considering that question and that magistrates are bound to consider the respondent's explanation for the recorded absences and decide whether there was regular school attendance in light of all the evidence. We had not heard evidence from Mr Platt, but the explanation was available from the evidence presented by the Council.

16. We retired to consider the submission of No Case to Answer.

17. We ruled that there was no case to answer. In making this decision we only took into account the period of 13th April 2015 and 21st April as set out in the charge. Although the February absence was highlighted by the prosecutor in his half time submissions, the case had been presented on the basis that the respondent was not responsible for removal in February.

18. Our reasons were as follows: Although we have regard to the policies and issues the school has to consider, when assessing whether an essential element of the offence is missing and whether a reasonable tribunal could convict on the evidence before the court, the question we have to ask ourselves is whether [M] was a regular attender.

19. Before the holiday with Dad, her attendance was 95%, afterwards it was 90.3%. We have seen the attendance sheet which shows no further unauthorised absences that term.

20. The document supplied on refusal of leave stated that satisfactory attendance is 90-95%."

2. The magistrates then certified the following question for consideration by the High Court:

"Did we err in law in taking into account attendance outside of the offence dates (13th April to 21st April 2015) as particularised in the summons when determining the percentage attendance of the child?"

3. I should note at this point that I understand the second sentence of paragraph 17 to indicate that the court proceeded on the basis that it was only the absence between 13 and 21 April 2015 for which the respondent was responsible.
4. The relevant provisions of section 444, Education Act 1996 are as follows:

"(1) 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.

(1A) If in the circumstances mentioned in subsection (1) the parent knows that his child is failing to attend regularly at the school and fails without reasonable justification to cause him to do so, he is guilty of an offence.

(2)Subsections (3) to (6) below apply in proceedings for an offence under this section in respect of a child who is not a boarder at the school at which he is a registered pupil.

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

(a) with leave,

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

(c) on any day exclusively set apart for religious observance by the religious body to which his parent belongs.

...

(8)A person guilty of an offence under subsection (1) is liable on summary conviction to a fine not exceeding level 3 on the standard scale.

...

(9)In this section 'leave', in relation to a school, means leave granted by any person authorised to do so by the governing body or proprietor of the school."

5. With regard to the school's power to give leave of absence, Regulation 2 of the Education (Pupil Registration) (England) (Amendment) Regulations 2013, SI 2013/756, amended Regulation 7 of the Education (Pupil Registration) (England) Regulations 2006, SI 2006/1751, so as to provide that leave must not be granted unless the school considers that leave of absence should be granted due to the exceptional circumstances relating to that application.

London Borough of Bromley v. C

6. The magistrates were referred to the decision of the Divisional Court of the Queen's Bench Division in London Borough of Bromley v C [2006] ELR 358. In that case, C was the parent of three girls. Informations were laid by the local education authority alleging the commission of offences contrary to section 444(1) of the Education Act 1996. Records showed that out of 114 possible attendances in each case, E had 72 attendances, G had 74 and B had 78. Only a few absences were for reasons of notified sickness. Some were due to C's sciatica, but these were treated compassionately as not unauthorised absences. A further 18 absences per child were due to holidays for which leave of absence was refused or not sought. All other absences were due to late arrival at school consequent on car breakdowns or bad traffic conditions. The magistrates concluded that the respondent had not failed to secure regular school attendance, that the absences for holiday in term time were justified although the respondent should have shown more care, and there were good and cogent explanations for the other recorded absences. On an appeal by case stated by the local education authority, the magistrates asked a number of questions including the following: (a) whether they were wrong not to take into account the respondent's explanations regarding absence in deciding whether there had been regular school attendance or whether they were bound by the school's record, and (b) whether the taking of an unauthorised holiday itself amounted to failing to secure regular school attendance.
7. The Divisional Court held that it was common ground that the answer to the first question was no. The record of attendance recorded by the school was merely the starting point. It could be received as evidence by virtue of section 566 of the 1996 Act, but that did not provide that the record had to be treated as conclusive. The magistrates were therefore entitled, indeed they were bound, to consider the respondent's explanation for the recorded absences and to decide whether there was regular school attendance in the light of all the evidence including the school's record of attendance.
8. So far as issue (b) was concerned, the court considered that the real question was whether any reasonable bench of magistrates could have concluded that there was regular attendance by the three children if 18 out of a possible 114 attendances had been missed because of two unauthorised holidays. Sullivan J expressed the matter in this way:

"15. Although the magistrates posed the question in the abstract, 'Does the taking of an unauthorised holiday of itself amount to failing to secure regular school attendance?', the real question is whether any reasonable bench of magistrates could have concluded that there was regular attendance by these three children if 18 out of a possible 114 attendances had been missed because of two unauthorised holidays."

Nevertheless, Sullivan J did go on to answer the question originally posed at paragraph 19, where he said this:

"I would readily accept the submission that it does not automatically follow that there will not have been regular attendance merely because there has been an unauthorised holiday. The question will be very much one of fact and degree in each case, but in the present case the holidays amounted to 18 unauthorised absences when set against a possible attendance of 114, or, expressed in terms of days, 9 absences out of 57 days, some 16 per cent of possible attendances."

9. Sullivan J then went on to consider whether a reasonable bench could have concluded on the facts of that case that attendance had been regular. In addressing this, he considered that the magistrates had to have regard to all the circumstances including the extent to which the children had attended the school apart from the unauthorised holidays. On the facts of that case, he concluded that the only possible conclusion was that they had not attended regularly.

Submissions

10. On behalf of the appellant authority, Mr Jackson places at the forefront of his submissions the fact that the summons alleged that M failed to attend school regularly between 13 and 24 April 2015. He submits that the question the magistrates had to ask themselves was not simply whether the child had attended school regularly, but rather whether the child had attended regularly during the period particularised in the summons, that is, between 13 and 21 April. He submits that none of the statutory exceptions applies in this case, that the offence is one of strict liability and that the only finding open to the magistrates was that there was no attendance during that period and that accordingly the offence is made out.
11. Mr Jackson goes on to submit that consideration of Regulation 2 of the 2013 Regulations makes the intention of Parliament clear. Parents, he says, cannot simply take their children out of school to take them on holiday or for any other unauthorised reason, and such applications should only be granted by the school in exceptional circumstances. The terms of the school's policy made clear that holidays in term time would not be authorised. Mr Jackson submits that the magistrates fell into error in taking account of attendance at any time outside the period specified in the information, because it could not have any bearing on the determination of whether there was regular attendance during that period. He submits that as attendance during the specified period was 0 per cent, no reasonable bench could have concluded that it was regular attendance.
12. On behalf of the respondent, Mr Greatorex advances a narrow case and a wider case. His narrow case can be stated very simply in three propositions. First, he submits that it is clear from the legal framework and the decision in C that the issue of regular attendance is one of fact and degree for the magistrates, and the only question of law on an appeal is whether the conclusion reached by the magistrates was one which was reasonably open to them. Secondly, he submits that as recorded in the case, M's attendance was 95 per cent before the holiday in question and afterwards it was 90.3 per cent. There were no further unauthorised absences that term and the school and the LEA's benchmark for satisfactory attendance was in the range 90 to 95 per cent. Thirdly, he submits that the magistrates were plainly entitled to conclude on those facts that there was regular attendance and that there is no basis on which such a decision could be said to be Wednesbury unreasonable.
13. At this stage of the proceedings, we confine ourselves to considering his narrower case.

Discussion

14. The decision of this court in London Borough of Bromley v C establishes that the question whether there has been regular attendance is a matter of fact and degree in each case. In particular, we note that in that case Auld LJ referred at paragraph 28 to the generous ambit of judgement available to magistrates in determining this question, although both members of the court found that that generous ambit had been exceeded on the facts of that case.
15. Mr Greatorex places particular reliance on the observation of Sullivan J that it does not automatically follow that there will not have been regular attendance merely because there has been an unauthorised holiday. In response, Mr Jackson submits:

"That the court held that it does not automatically follow that there will not have been regular attendance merely because there has been an unauthorised holiday does not mean that an unauthorised holiday cannot lead to a finding that there had not been regular attendance during the relevant period. The relevant period must be the period particularised in the summons."

16. The offence is committed if a child fails to attend school regularly without lawful excuse. Absence on an unauthorised holiday of itself does not necessarily constitute an offence in all cases. Clearly an unauthorised holiday could lead to a finding that there has not been regular attendance. However, as Sullivan J made clear in C, that absence on unauthorised holiday will have to be considered in all the circumstances of the case including attendance over a wider period than the period of absence. That worked to the disadvantage of the respondent in C and may work to the advantage of the respondent in the present case. I do not consider that it is open to the authority to criminalise every unauthorised holiday by the simple device of alleging in the information that there has been no regular attendance in a period limited to the absence on holiday. If that were carried to its logical conclusion, it would be open to the authority to bring a prosecution under section 444(1) in respect of an unauthorised absence from school without lawful excuse of one day by limiting the period of irregular attendance alleged in the information to that one day. On the appellant's case, there could be no answer to such a charge.
17. Mr Jackson on behalf of the authority does not shrink from this consequence. He points to section 7 of the 1996 Act, which provides:

"The parent of every child of compulsory school age shall cause him to receive efficient full-time education suitable --

(a) to his age, ability and aptitude, and

(b) to any special educational needs he may have,

either by regular attendance at school or otherwise."

Mr Jackson submits that any absence which is not covered by one of the exemptions in section 444 would mean that attendance is not regular attendance because it is not full-time. In this regard, he refers to the importance of full-time education and the damage to children's attainment which can be a consequence of non-attendance at school. We note that this was not the basis on which the case was put below. We also note that neither Mr Jackson nor Mr Greatorex appeared below.

More fundamentally, this is not what the statute says. Under section 444 an offence is committed if a child does not attend school regularly. This court in C considered that that was a question of fact and degree, a matter for judgement by the court. That decision in C is not strictly binding on this court, but it is persuasive authority and, in any case, in my view it is correct.

18. I should add in this regard that we have been referred by Mr Jackson to Hinchley v Rankin [1961] 1 WLR 421. In my view that decision does not assist because it is concerned only with the question whether late attendance at school constitutes attendance at all.
19. I am unable to accept Mr Jackson's submission that consideration of Regulation 2 of the 2013 Regulations makes the intention of Parliament clear. He submits that its effect is that parents cannot simply take their children out of school to take them on holiday or for any other unauthorised reason, and such application should only be granted by the school in exceptional circumstances. First, the regulation is, of course, secondary legislation. Secondly, the regulation does not have the effect of amending the statute. In my view, the nature and scope of the offence created by section 444(1) remain unchanged. In particular I would reject the suggestion that Regulation 2 has the effect that any absence without statutory excuse necessarily constitutes an offence under section 444(1).
20. In this case, the question whether attendance had been regular could not be ascertained solely by reference to the period of absence. It was necessary to have regard to the period of absence in a wider context of attendance. The magistrates were bound to consider whether there was regular school attendance in the light of all the evidence including the school's record of attendance. In this case, I note that the education authority placed before the court M's record of attendance from 1 September 2014 to 7 July 2015. I consider that the magistrates correctly had regard to that wider picture. Moreover in all the circumstances of this case I am unable to say that their conclusion was not one reasonably open to them.
21. I should record that in his wider case, set out in his outline submissions, Mr Greatorex points to the absence of a definition of "regular" and submits that the provision is far too vague to be the basis of a criminal offence, let alone an offence of strict liability. He submits that section 444(1) is not sufficiently clear and certain for a parent to know before taking a child out of school whether he or she is committing a criminal offence, and in this regard he draws attention to the observations of Elias J, as he then was, in Barnfather v London Borough of Islington [2003] 1 WLR 2318, at paragraph 57:

"I recognise that the penalties are small, being only a fine, and that is a factor which can properly be considered when determining whether an offence of strict liability is justified. However, in my opinion there is nonetheless a real stigma attached to being found guilty of a criminal offence of this nature. It suggests either an indifference to one's children, or incompetence at parenting, which in the case of the blameless parent will be unwarranted."

22. I draw attention to these submissions by Mr Greatorex without expressing any concluded view on them. It is not necessary for the court to consider these issues in order to dispose fairly of this case. Had the court considered it necessary to do so, in my view we should have had to consider whether the Department of Education should be served as an interested party in order that it might have the opportunity to make submissions on these wider issues. I would therefore answer the question posed by the magistrates in the case stated as follows:

The magistrates did not err in law in taking into account attendance outside the offence dates 13 April to 24 April 2015 as particularised in the summons when determining the percentage attendance of the child.

MRS JUSTICE THIRLWALL: I agree.