School term time absence, the High Court and Cornwall.
Following the recent High Court decision over penalty notices I wanted to share my views on the issue and explain the situation in Cornwall.
The recent High Court case between the Isle of Wight and Mr Platt centred on the issue of ‘reasonable attendance’ and whether the father had failed in his duty to ensure regular school attendance (under section 7 of Education Act 1996). As he was able to show that his daughter had a 93% attendance rate at the time the FPN was issued, with a 100% attendance rate before then, this was accepted by the court and the case was thrown out.
This judgement was supported by another case in Swindon, where the court ruled the parents had not failed in their duty, as their child had achieved regular attendance over a 6 month period. This was despite the fact that the child’s attendance level over the three-period used as the basis for the prosecution was 87%.
As I have said previously, Head teachers decide whether to issue a penalty notice – not the Council. Head teachers are also responsible for deciding on whether to authorise term time leave.
A FPN is only issued when certain criteria is met. The Council issues FPN on behalf of schools – this helps ensure that the criteria for issuing penalty notices is applied consistently and fairly across Cornwall. It is also the Council which takes a case to court of parents fail to pay a fine.
We have historically taken a pragmatic approach to this issue. Where some local South West authorities have issued over 1600 fixed penalty notices since 2013 we have issued a total of 63 FPN. 11 of these were subsequently withdrawn.
During 2015/16, only 35 of the 51 notices issued were for so called “holiday absence”. The increase followed a review of our Code of Conduct policy following a request by some schools which had experienced parents taking their child out of school in the summer term and then again in the autumn term.
Our previous Code of Conduct required at least 20 unauthorised absences (10 days) within one academic year, providing the parent has been warned within that year or had a prior offence. The new Code now requires 10 unauthorised session absences (5 days) within 100 sessions (10 weeks), but the warning / prior offence should be within a calendar year.
A key issue is that the courts base their judgement on the legislation, not on our Code of Conduct or on our definition of low attendance. The Government talks about a 90% figure but this is not set in law. The courts have the final decision on what is classed as low attendance and, therefore, whether a parent has failed in their duty under Section 7.
Our Code of Conduct ensures that over a period of 100 sessions, a child would have attained only 90% or less attendance to meet the threshold for issuing a FPN. We also ask schools to submit attendance data for two terms prior to the offence, so we can be sure that the fixed penalty notice would not be issued against a parent whose child normally attends perfectly well.
We advise schools to treat such cases as first offences and to warn parents before taking the case to court. If we do go to court, we would provide evidence of up to 6 months of attendance to demonstrate failure in their duty over a longer period.
The Government says it is now going to change the law. I see this as a knee-jerk reaction in a case where Mr Platt had proved in court that he had not failed in his duty under section 7.
We all know children should attend school. However, there are perfectly valid reasons as why to it might be in the best interest of the child to be granted leave in term time, which a head teacher can allow.
We have a fair and balanced policy in Cornwall and always try and work with parents before issuing penalty notices or going to court. But we will use these options if we need to.