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19 Mar 2019

Danielle Reece-Greenhalgh examines the Education Act 1996 and criminal sanctions in the Financial Times

My husband splits his time working between the US and the UK. However, I moved back to the UK with our children a few years ago for reasons of their education. My daughter is at a public school and my son is at one of the leading state schools in the county.

We want to take the children to the US for two weeks during term time so they can spend time with their father, but I’ve heard we could be fined by schools if we take “unauthorised absences”. Our children have an excellent attendance record and we only want to take them out of school for two weeks. Could we face a fine?

Danielle Reece-Greenhalgh, an associate at Corker Binning, says the Education Act 1996 provides the framework for the provision of education in the UK. Under this legislation, the local authority is obliged to identify any children who are not in full-time education. However, legal responsibility ultimately lies with the parents to ensure their child’s regular attendance, and criminal sanctions apply to those who fall short.

Parents are automatically guilty of an offence if their child fails to attend school regularly. The offence is punishable by a fine of up to £1,000, and applies whether or not the parents knew about the absence. It is a defence to prove that a child could not attend by reason of sickness, unavoidable cause, or where the child had permission from the school not to attend or the absence fell on a day of religious observance. “Unavoidable cause” generally encompasses emergencies relating to the health or wellbeing of the child.

Parents who knowingly fail to secure their child’s regular attendance at school without reasonable justification are guilty of a more serious offence, for which a fine of up to £2,500 and/or a term of imprisonment of up to three months can be imposed. In addition to the limited defences outlined above, it is also possible for parents to argue “reasonable justification” for failing to ensure their attendance. “Reasonable justification” is undefined and depends on the particular facts, but will cover only exceptional situations.

What constitutes “regular” attendance was recently considered by the UK Supreme Court. The court held that regularity should be determined “in accordance with the rules prescribed by the school” and could include a block of time rather than regular occasions over an extended period. Furthermore, the discretion available to schools to authorise term time holidays has been curtailed in recent years.

In lieu of immediate prosecution, local authorities or the schools themselves (only in the case of state schools) will often issue penalty notices. This typically offers the option of paying a fine within a specified period in order to avoid criminal proceedings. Non-payment of the fine within that period can result in a court summons. The application of the penalty notice scheme varies between different local authorities.

The difference between the two schools is likely to be a practical one, relating to the margin of discretion afforded to you when asking for permission for term-time absence. If your US travel plans are opposed by the schools and you decide to press ahead anyway, the absences will be recorded as unauthorised.

A two-week period of unauthorised absence with your knowing consent is likely to prompt investigation, and you should be prepared for the prospect of further action, in relation to both your son and your daughter, including penalty notices and potentially criminal prosecution.

Read the full article in the Financial Times, behind a paywall, here.

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