More on School Non-Attendance

As previously discussed here on Magistrates' Blog, section 444(1) of the Education Act 1996 makes it an offence for a child of compulsory school age to fail to regularly attend the school at which they are registered.

Offences stemming from unauthorised holidays taken during term time represent a large majority of cases before the court.

It is now very unusual for the head teacher of a school to authorise a child's holiday during term time. In the event that permission is refused, it is nearly always the case that the parent will remove their child from school and go on holiday regardless.

In those circumstances the head teacher has to decide whether or not to let the matter slide or refer it to the relevant local authority's education welfare service. If satisfied that an offence has been committed, the education welfare service will then issue a fixed penalty notice to the parent or parents concerned (in the case of joint parental responsibility, each parent can be held liable).

A fixed penalty is a conditional offer of an out of court disposal. For a first offence, the fixed penalty is currently £80 if paid within 21 days. This increases to £160 if paid later than that. A second or subsequent offence within the space of 3 years attracts a larger fixed penalty.

A parent will only be prosecuted if they reject or ignore the offer of a fixed penalty. Prosecution tends to happen via the Single Justice Procedure (SJP), which I have discussed at length elsewhere. It therefore follows that a parent will normally only appear before the court if they have rejected or ignored the offer of a fixed penalty and entered a not guilty plea via the SJP.

Invariably a lot of these parents have a gripe with the school concerned and think it has acted unreasonably by having the matter prosecuted. A lot of them misunderstand the legislation, particularly with regard to what constitutes regular attendance.

The Supreme Court, in Isle of Wight Council v Platt [2017] UKSC 28, has provided a definitive interpretation of the meaning of regular attendance for the purposes of section 444. The court determined that regular attendance meant "in accordance with the rules prescribed by the school".

In other words, regular attendance requires a child to attend school on every day it is open to pupils, unless they have a legitimate reason for not doing so. An unauthorised holiday is not a legitimate reason for non-attendance.

This means that a child with 99% attendance could be deemed not to have attended school regularly, if they were absent for any period of time without legitimate reason. A parent can be prosecuted on that basis.

As this is a Supreme Court judgment it is not open to the Magistrates' Court to interpret in any different way.

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