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Who should have the final say on term time holidays – the Head Teacher or the Parents?

Who should have the final say on term time holidays – the Head Teacher or the Parents?

Published: 10 February 2016

In recent times, the press have been highlighting a growing dissatisfaction among parents who receive a fine for taking their children out of term time for a holiday.

Prior to reforms in September 2013 parents could apply to the Head Teacher for a leave of absence for a maximum period of 10 days in ‘special circumstances’. In England, post reforms there must be ‘exceptional circumstances’ before leave can be approved.

The Department for Education argues that missing school time can be harmful to a child’s education and can have a lasting effect on their life chances. This is not universally accepted.

The Local Government Association have called for a ‘common sense approach’ to be adopted. I would endorse this approach because the ‘exceptional circumstances’ test, in my view, provides an artificially high hurdle for parents.

Despite the reforms - figures disclosed under a Freedom of Information request made by the Press Association in 2014/2015 confirmed Local Education Authorities issued 50,414 fines for term time absences. This was a 25% rise from 2013/2014 and 173% rise since 2012/2013.

Independent fee paying schools are not subject to the ‘exceptional circumstances’ rule, although they may have a code of conduct or policy in place for parents.

One particular case of interest is Mr Platt who refused to pay a fine for taking his 6 year old daughter out of school to have a holiday at Disney World, Florida. Mr Platt successful defended a charge under Section 444 of the Education Act whereby it is an offence if a child fails to go to school regularly. The focus being whether the child attended school regularly, not the reasons for the absence. Mr Platt’s daughter, who had a 100% attendance rate before the holiday, was said to have attended ‘school regularly’.

The Isle of Wight Council has since appealed to the High Court to seek clarification on what constitutes ‘regular attendance’ – so until this has been considered it is very much a case of ‘watch this space’.

The Department for Education do not accept Mr Platt’s case sets a legal precedent which is reflected in local authority guidance to parents. For example, the London borough of Barnet takes a particularly robust view stating ‘Taking school holidays in term time is unacceptable’.

If you do take your child out of school for a term time holiday (unless approved by the Head Teacher) you are likely to receive a fine of £60 per child per absence (so in theory both parents could be fined), which rises to £120 if not paid within 28 days. If you fail to pay the fine within 28 days then you may be prosecuted and could receive a fine up to £2,500, given a Community Order or receive a jail sentence of up to 3 months.

Whilst some parents may feel a £60 fine is far cheaper than the cost of holidays in the peak of the school holidays one needs to exercise some degree of caution because a fine is an alternative to prosecution and thus a parent could potentially face court proceedings, receiving a criminal record and higher financial penalties.

In my opinion, the policy adopted by the Department for Education needs to be revisited so that parents can exercise their own discretion and perhaps the test of ‘special circumstances’ with a limit of 10 days per year should be reinstated. This would give both parents and Head Teachers some degree of flexibility without being seen to open the floodgates on term time absences from school.

This article was written by Terrence Trainor, Head of Family Law at Fletcher Day. For more information or advice on any aspects of family law, please contact Terrence in our family law team.

The contents of this article are intended for general information purposes only and shall not be deemed to be, or constitute legal advice. We cannot accept responsibility for any loss as a result of acts or omissions taken in respect of this article.