A parent commits an offence under section 444(1) of the Education Act 1996 if a registered pupil of compulsory school age does not attend in accordance with the school’s rules, unless a statutory exception applies. The Supreme Court rejected the view that “regularly” means sufficiently often, so a high percentage attendance cannot excuse an unauthorised holiday. The father’s prosecution was returned to the magistrates.
The holiday and the charge
Mr Platt asked the head teacher for permission to take his daughter out of school for a holiday during term time. Permission was refused.
He nevertheless took Mary out of school from 13 to 21 April, seven school days amounting to 14 attendances. A fixed penalty notice for £60 was issued, and a further demand for £120 followed when it was not paid. He paid neither sum. He was prosecuted in the Isle of Wight Magistrates’ Court under section 444(1) of the Education Act 1996, which makes a parent guilty of an offence if a child of compulsory school age who is a registered pupil fails to attend regularly. The allegation concerned 13 to 21 April. He pleaded not guilty.
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At the close of the prosecution case the magistrates ruled that there was no case to answer. They noted that attendance was 95 per cent before the holiday and 90.3 per cent afterwards, and that a document supplied when leave was refused stated that satisfactory attendance was 90 to 95 per cent. They asked whether Mary was a regular attender and held that she was. The Council appealed by case stated. The magistrates asked whether they had erred by taking attendance outside the charged dates into account. The Divisional Court held that they had not, treating regularity as a question of fact and degree. It later certified whether attendance outside the period specified in the information is relevant to the offence.
The meaning of “regularly”
Lady Hale, with whom Lord Neuberger, Lord Mance, Lord Reed and Lord Hughes agreed, held that the essential question was the meaning of “fails to attend regularly”. She considered three possibilities: at regular intervals, sufficiently often, or in accordance with the rules.
Attendance at regular intervals could not be intended. It would make attendance every Monday regular although attendance every day was required, and it would not cover a child who was regularly late. In Hinchley v Rankin the court had held that there must be attendance for the period prescribed by the person on whom the duty to provide the education is laid.
The Divisional Court in this case, like the court in London Borough of Bromley v C, had assumed that “regularly” meant sufficiently often and that the question was one of fact and degree. Lady Hale held that this was not Parliament’s intention in 1944 or 1996. School attendance is compulsory and governed by rules. The Education Act 1944 had required parents to cause their children to receive efficient full-time education suitable to age, ability and aptitude, and had replaced an open-ended reasonable-excuse defence with a closed list of circumstances in which absence is permitted. Frequency over an unspecified period would also be too uncertain to found a criminal offence, because a parent could not know on a given day whether an absence would later be judged unacceptable. Unauthorised absence disrupts the education of the child, the work of the teacher and the learning of other pupils, and that disruption increases if different pupils are absent at different times. Other parts of section 444 point the same way: absence on a day set apart for religious observance is expressly disregarded, a boarder fails to attend regularly if absent without leave during any part of the term, and Parliament stated a numerical minimum where it intended one.
Attendance in accordance with the rules
Lady Hale concluded that “regularly” means “in accordance with the rules prescribed by the school”. A single missed attendance without leave or another permitted excuse can therefore be an offence. That strictness is not an objection. Minor criminal breaches are familiar and may be met by prosecution policy, a fixed penalty notice, or an absolute or conditional discharge. Section 444(1) creates an offence of strict liability, and a criminal prohibition must enable people to know where they stand. Leave granted by a person authorised by the governing body or proprietor is part of the definition of the offence rather than a defence. The same reading fits the parent’s duty under section 7 to cause the child to receive full-time education. Insofar as Crump v Gilmore and London Borough of Bromley v C adopted a different interpretation, they should not be followed.
The father asked the court only to declare the meaning. The Council and the Secretary of State for Education, who intervened, were concerned with the principle rather than the result of this prosecution. On the agreed facts, however, the father had a case to answer. The penalty notice had been properly issued and, having failed to pay it, he should have been convicted unless he could establish a statutory exception. Mary’s mother had taken an earlier unauthorised holiday, received a penalty notice and paid it. The case was therefore to be returned to the magistrates.
Verdict: The Court unanimously allowed the council’s appeal. Regular attendance meant attendance in accordance with the school’s rules. The magistrates were directed to continue the case as if they had rejected the submission that there was no case to answer.
