UPDATE JUNE 2017: THE SUPREME COURT HAS HEARD THIS CASE AND PUBLISHED JUDGMENT IN APRIL 2017, UPHOLDING THE ORIGINAL FINE AND DISAGREEING WITH JON PLATT’S LEGAL CHALLENGE (MORE) IN JUNE 2017 THE ORIGINAL CASE WAS RE-HEARD IN THE MAGISTRATES COURT AND JON PLATT WAS FOUND GUILTY OF FAILING TO ENSURE REGULAR ATTENDANCE
The previous year the case was heard at the High Court in May 2016. Judgment was published here
The High Court found the Bromley judgment of 2006 “persuasive”, and took no further steps to define “regular attendance”
On June 9th 2016 the Department for Education said it would pay for the Isle of Wight to challenge the judgment at the Supreme Court, and in early October, Mr Platt was also awarded legal funding. As explained here, the decision to grant the representation order was made by the High Court and was done so independently of the Legal Aid Agency. The granting of such orders is NOT means tested.
The latest School Attendance Advice, November 2016 says “Head teachers should only authorise leave of absence in exceptional circumstances. If a head teacher grants a leave request, it will be for the head teacher to determine the length of time that the child can be away from school. Leave is unlikely, however, to be granted for the purposes of a family holiday as a norm.“ (This paragraph remains unchanged from October 2014, read more here.)
Mr Platt said he would help other parents pursue refunds against fines.
Mark Jackson for the Isle of Wight Council argued that Mr Platt’s daughter had failed to attend school regularly for the specific time while she was on a family holiday between 13 and 24 April 2015 when her attendance was 0 per cent.
In response, Lord Justice Lloyd Jones said:
“I do not consider that it is open to the authority to criminalise every unauthorised holiday by the simple device of alleging in the information that there has been no regular attendance in a period limited to the absence on holiday. If that were carried to its logical conclusion, it would be open to the authority to bring a prosecution under section 444(1) in respect of an unauthorised absence from school without lawful excuse of one day by limiting the period of irregular attendance alleged in the information to that one day.”
“Under section 444 an offence is committed if a child does not attend school regularly. This court in C [London Borough of Bromley v C  EWHC 1110] considered that that was a question of fact and degree, a matter for judgement by the court. That decision in C is not strictly binding on this court, but it is persuasive authority and, in any case, in my view it is correct.”
“I am unable to accept Mr Jackson’s submission that consideration of Regulation 2 of the 2013 Regulations makes the intention of Parliament clear. First, the regulation is, of course, secondary legislation. Secondly, the regulation does not have the effect of amending the statute. In my view, the nature and scope of the offence created by section 444(1) remain unchanged. In particular I would reject the suggestion that Regulation 2 has the effect that any absence without statutory excuse necessarily constitutes an offence under section 444(1).”
“In this case, the question whether attendance had been regular could not be ascertained solely by reference to the period of absence. It was necessary to have regard to the period of absence in a wider context of attendance. The magistrates were bound to consider whether there was regular school attendance in the light of all the evidence including the school’s record of attendance. In this case, I note that the education authority placed before the court M’s record of attendance from 1 September 2014 to 7 July 2015. I consider that the magistrates correctly had regard to that wider picture. Moreover in all the circumstances of this case I am unable to say that their conclusion was not one reasonably open to them.”
“I should record that in his wider case, set out in his outline submissions, Mr Greatorex points to the absence of a definition of “regular” and submits that the provision is far too vague to be the basis of a criminal offence, let alone an offence of strict liability. He submits that section 444(1) is not sufficiently clear and certain for a parent to know before taking a child out of school whether he or she is committing a criminal offence.”
“It is not necessary for the court to consider these issues in order to dispose fairly of this case. Had the court considered it necessary to do so, in my view we should have had to consider whether the Department of Education should be served as an interested party in order that it might have the opportunity to make submissions on these wider issues.”
“I would therefore answer the question posed by the magistrates in the case stated as follows:”
““The magistrates did not err in law in taking into account attendance outside the offence dates 13 April to 24 April 2015 as particularised in the summons when determining the percentage attendance of the child.”