Judgement in the appeal, Isle Wight Council and Platt.
Lady Hale will explain the judgment of the court.
Under section 444 subsection 1 of the Education Act 1996, if a child of compulsory school age, quote, fails to attend regularly, end quote, at a school where she is a registered pupil, her parent is guilty of a criminal offense. There are some exceptions. For example, if the child is absent from school with leave, or on a day set apart for religious observance by the religious body to which her parent belongs. There is also procedure for issuing a parent with a penalty notice, under which a parent can avoid prosecution by paying the fixed penalty. In this case, a child’s father asked the head teacher for permission to take the child out of school for a holiday in April 2015. The head teacher refused this request and warned him that a penalty notice would be issued, if the child was taken on holiday. As it happens, the child's mother had taken her on an unauthorized holiday in February, had been issued with a penalty notice and had paid it. Despite the refusal of permission, the father took the child out of school for 7 days in April. He was issued with a penalty notice. He failed to pay and was prosecuted in the local magistrate’s court. They ruled that he had no case to answer. Because before the holiday, her attendance was 95 percent and afterwards it was 90.3 percent. That decision was upheld in the High Court. The council now appeal to this court. The case depends upon the meaning of the word regularly, in section 444 subsection 1 of the 1996 Act. There are at least three possible meanings. First, evenly spaced, as in, he attends church regularly, every Sunday. Second, sufficiently often, as in, he attends church regularly almost every Sunday. Or third, in accordance with the rules, as in, he attends church when he is required to do so. It cannot mean evenly spaced, because this would enable attendance every Monday to count as regularly, even though attendance every school day, is required by the school rules. Many might think that it means sufficiently often, as did the High Court in this case, and in an earlier case which the High Court followed. But there are many reasons to think that this is not what parliament intended. Before the Education Act 1944, which introduced the present wording, it was quite clear that a parent could be guilty of the offense if the child missed a single day at school. The 1944 Act was intended to increase the scope of compulsory education not to reduce it. An open ended defense of reasonable excuse was replaced with much narrower exceptions. But allowing parents the flexibility, inherent in the concept of sufficiently often, would mean that they were not liable even if there were no reasonable excuse for the absence. The exception for a day set aside for religious observance also suggests that otherwise that one day’s absence would be enough to constitute the offense.
Above all. This definition is far too imprecise to found a criminal offense. Over what period is the sufficiency of attendance to be judged? How much is sufficient? Are the reasons for the absence is to be taken into account? How can a parent know whether taking a child out of school on any particular day will or will not be an offense?
All the reasons why ‘sufficiently often’ cannot be right point towards the conclusion that the correct meaning is, in accordance with the school's attendance rules. I should emphasize that this case is not about what those rules should be or how much discretion the head teacher should have to authorize absence. That is a matter for the appropriate school authorities. The High Court was concerned that this interpretation means that a single day’s absence can lead to criminal liability. But there are several answers to this.
First, there are many examples were what may seem like minor or trivial breaches can lead to criminal liability. It is an offence to steal a milk bottle, to drive at 31 miles an hour when the limit is 30, or to fail to declare imported goods which are just over the permitted value. If appropriate, these can be dealt with by a sensible prosecution policy, by a fixed penalty notice scheme if there is one, or by an absolute or conditional discharge in court. Second, this was not thought an objection to the law as it undoubtedly was before the 1944 Act. Third, this interpretation enables everyone to know where they stand, to know what is and is not an offense which the other interpretations do not. There are also good policy reasons for this interpretation.
Unauthorized absences have a disruptive effect. Not only on the education of the individual child but also on the work of other pupils and of their teachers. If one pupil can be taken out, whenever it suits the parent, then so can others. Different pupils might be taken out at different times multiplying the disruptive effect.
Any educational system expects people to keep the rules. Not to do so is unfair to those obedient parents who do keep the rules whatever the cost or inconvenience to themselves. It follows that the appeal must be allowed. It would not be fair to parents, such as the mother in this case, who have paid the fixed penalty, simply to make a declaration as to the meaning of the word regularly in this context.
The case will be returned to the magistrate's court with the direction to proceed as if the submission of no case to answer had been rejected. The father will be guilty of the offense unless he can establish one of the statutory exceptions. But the eventual outcome of the case will be a matter for the magistrates to decide.
The court is now adjourned.
Source: UK Supreme Court
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