A Place in the Sun – Home or Away?
A record 350,000 parents in England were fined for taking their children out of school on unauthorised holidays last year, figures show.
The statistics from the Department for Education (DfE) reveal that holidays accounted for almost 90% of the 399,000 cases of parents being given a penalty notice by local authorities for their children’s unauthorised school absences.
Child arrangement orders regularly have holiday arrangements incorporated into them, however what is the approach to be taken if one parent wishes to have an order that they are able to take the child on holiday during term time, especially if the other parent disagrees.
Children Act 1989
Section 1(3)(b) provides for the Court to consider the child’s ‘physical, emotional and educational needs’ when making an order. An order for the child to leave education to go on holiday could be said to be an interference with their educational needs.
However from an emotional point of view, a holiday could well be said to be incredibly beneficial.
A single father decided to take his 6 year old daughter out of school during term-time for a 10 day holiday (missing 7 days of school). The School sent a Fixed Penalty Notice Referral Form and in due course a Fixed Penalty Notice for £60 was issued. This then jumped to £120 when the father refused to pay.
Regulation 7(1A) of the Education (Pupil Registration)(England) Regulations (SI 2006/1751)(as amended by SI 2013/756) provides that leave of absence for any purpose may only be given where there are “exceptional circumstances”.
Criminal proceedings were issued against the father for an offence under Section 444(1) of the Education Act 1996. This stipulates that “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.” The father pleaded not guilty on the basis of his daughter’s excellent attendance record generally throughout the school year. Her unauthorised holiday absence did not mean that she failed to attend school regularly.
Following Mr Platt’s success in the Magistrates Court and the High Court the matter came before the Supreme Court.
In considering the meaning of the word “regularly” within Section 444(1) of the Education Act 1996 (“If a child…..fails to attend regularly….”), Lady Hale gave three possible definitions:-
- “At regular intervals” – ie: akin to somebody regularly attending church on a Sunday.
- “Sufficiently regularly” – ie: the meaning ascribed by the Magistrates at first instance and on appeal to the High Court, that is, taking account of the pupil’s attendance at school generally over a prolonged period of time.
- “Regularly in accordance with the rules.”
Lady Hale discounted the first of these definitions as applicable to school attendance. Attending school at regular intervals (ie: weekly) would plainly be insufficient. She concluded that the correct definition of “regularly” in relation to school attendance is “In accordance with the rules.”
This creates far greater certainty for parents wishing to take the children out of school during term time. The decision emphasises the importance of ensuring regular school attendance, which is the responsibility of parents, and it reduces the ability to avoid conviction if prosecuted for failing to ensure regular attendance caused by unauthorised absence, including by reason of term-time holidays.
Incorporation into a Child Arrangement Order
When looking to provide for an order allowing one parent to take the child away during term time careful consideration should be given to whether the Court should, or even has the power to, order and therefore sanction a course of conduct which has a criminal liability under s.444(1) Education Act 1996. Given the wording of the Education Act even as the ‘left behind’ parent you could also be exposed to such a sanction, even if you resisted the holiday.
In addition, and with the careful words of Lady Hale in ‘Platt v IOW’ it appears that those wishing to persuade a Court that a holiday during term time is in the Child’s best interests pursuant to s.1(3) CA 1989 may be facing an uphill struggle. It is therefore extremely important to seek early legal advice when considering applications of this nature.
Patrick has a particular expertise in financial proceedings arising from relationship breakdown. He advises and represents clients with assets from the very small to the substantial in all aspects of financial remedy proceedings as well as under Schedule 1 CA 1989 and TOLATA 1996.
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