Noah Myers was fined for taking his son out of school for a couple of days to support a cousin participating in an international sporting event. He took his other son out of a different school at the same time, that school wouldn’t authorise the absence either but didn’t fine him. Noah paid the fine but wants to challenge the decision to refuse permission for absence through the “judicial review” process. Noah has asked The Parents Union to take up his case.
This is potentially a big step in the campaign to reverse the changes to the school attendance regulations.
There has been an endless stream of cases on term time absence in the courts and in the media over the past year or more but this one is different. Very different.
In all the other cases, the local authority has been prosecuting the parents – taking them to court under s444(1) of the Education Act for failing to ensure their children’s attendance at school. That’s pretty much a strict liability offence which means if the children weren’t in school, the parents are found guilty even if the court has sympathy with their reasons. At best the court can give unconditional discharge and not impose a fine – as one magistrate on a Radio 4 You and Yours programme reported doing.
Other parents like Stewart Sutherland and his wife have been fined around £1,000 despite the fact they applied for the holiday before the new rules came into force and he is given no choice over when to take his holiday by his employer. Kerry Capper was the first case we are aware of where the court found not guilty: Kerry had kept her daughter off because she feared a recurrence of her cancer.
But as I say, this case is different because it is the first time where it is the local authority being taken to court by the parent – or rather by The Parent’s Union on behalf of the parent. We are effectively challenging the lawfulness of the decision by the school not to authorise the holiday. Our webpage sets out why we think the way the regulation is implemented may be unlawful and that will form the basis of our challenge.
This is a first for the campaign to reverse the term time holiday regulations: over the past year or so, there have probably been about 10 attempts to bring such a case but in each case either the school has capitulated and authorised the holiday or has quietly shelved the issue so that fines were not issued and the parents have felt that has been enough to achieve their aims. This is the first case where the school and local authority have stood up to our challenge.
There are several stages to the process. So far, we have advised Brighton & Hove Council that we are taking over the case and are preparing the paperwork to submit to the court. Assuming that they continue to defend their position, the next stage will be that we make the application to the court and a judge will make a decision based on the paperwork alone as to whether s/he will grant permission for our case to be heard in court. We will also be making an application for protected costs so that if we lose, there will be a cap on how much of the local authorities costs we will have to pay.
If the judge decides not to grant permission for the hearing, we have the option to appeal but will have to look at the reasons given before deciding whether that is a feasible option. Even if we decide not to appeal, we will be looking for another case to try again with.
If the judge gives permission for the case to proceed, we will need to raise £800 for the application to go ahead and will need a contingency fund to cover costs in the event they are awarded against us at the hearing stage. We expect the hearing will be less than a day in court but clearly both sides will need to do a lot of preparation in advance and that’s what racks the costs up. It is not unheard of for these to reach the £50,000 mark.
If we win at the hearing stage, the full impact of the decision will depend on the judges reasoning but at the very least it should flag to schools and local authorities that they must be mindful of the Human Rights legislation when making decisions so we would anticipate a move away from the sort of blanket decision making we have been seeing to date. It will also increase pressure on government to review the regulations.
But, one step at a time….