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have issued over 1600 fixed penalty notices since 2013 we have issued a total of 63 FPN.  11 of these were subsequently withdrawn.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.

4 comments

  • Gilly Zella Martin

    One could say that having six weeks consecutive summer holiday is more disruptive to a child’s education. Why not more evenly distribute the holiday time across the year.

    Do the teacher strike days class as an unathorised absence!

  • Tess Herbert

    Teachers strike days do not count as an absence, they have a special attendance code of their own, and do not contribute towards a child’s overall attendance figure.

  • Gilly Zella Martin

    Oh right, thank you, I am therefore just wondering who monitors a teacher’s attendance rate if the school is an academy.

  • Lagora Fran

    Why didn’t they just stick to what it was years ago, a parent could fill in a holiday form and could take the child out of school term time for two weeks providing it’s attendance rate was normally good. All this unnecessary red tape because of a clueless government. Many people in Cornwall work in the tourist industry or have a partner at Culdrose and are limited as to when they can take their holidays. Alright for David Cameron he can afford to go on holiday when he likes.
    Don’t think teachers should be allowed to strike either, it’s one rule for them and one for parents. What message does it give out to the children anyway. No you can’t have a day out of school with your child when it’s father comes back on leave but you can when the teachers want to strike. Nobody monitors teachers attendance except internal monitoring. Strange too the children can miss school for Flora Day, another dip in the rules. The government now says it’s going to change the law, this government can’t stick to anything much without doing uturns no wonder the school systems in the state it is. First they’ve all got to become academy’s now they haven’t. What next!!! Why not make the school holidays the same as the average employee, four or five weeks a year, if they’re so worried about the children’s education. Of course the teachers wouldn’t like that.

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