We have been campaigning on this issue for some time now and been involved in supporting a lot of parents in a lot of different circumstances. This is a summary of our experience so far of helping parents get permission.
If you need term time absence, we believe your best chance is to win your argument right at the beginning. Some 84,000 fines have been issued to parents this year. The Headteacher at your children’s school may feel under great pressure to hit attendance targets and may also have been persuaded by the Department for Education banging on that all term time absence is bad, so it is worth thinking very carefully about how you put your case to win them over. Some Headteachers have a blanket ban on term time holidays and include all sorts of family events in that, other Headteachers are happy to exercise their discretion if they’re happy you are not being reckless about your child’s learning. Having a chat with the school about their view before you put anything in writing might help you to understand what their concerns (if any) are.
Have a look at the National Association of Headteachers Guidance on this which you can find here. Your Headteacher is not bound to follow it but if your situation fits some of the examples in there, it might help your case to refer to it.
Let the school know you want the absence as soon as you know your dates. When you write to the school, outline what you are doing and why you believe it is in your child’s best interest. Say why it is not possible to take the absence at any other time. Ask the school to let you know what they are concerned your child will miss and say you will ensure your child covers those topics. Outline what benefits you think your child will get from the experience. For children in key stage 2 you could quote the following from a government publication in 2011:
“The likelihood of pupils achieving the expected KS2 level, not only differ greatly by the amount of absences accrued, but also by the different reasons behind these absences (Chart 4.4). The proportions of pupils achieving the expected level stay relatively similar for increasing levels of absence due to authorised family holidays, religious observance and study leave. However, long term absences due to exclusions or illnesses tend to be associated with significantly lower proportions of pupils achieving this expected level.” (Chart 4.4 page 58) Go to the full report here.
If the school refuses, ask them to outline in detail how they came to their decision in your child’s case and what evidence they have that your child in particular will be harmed by the absence and how you can appeal the decision. You can point them to the information below about their obligations under the Human Rights Act. If you want to fight the case, let us know straight away and we can see if we can help. Waiting until you receive a fixed penalty notice is often too late.
The Human Rights Act
The Parents’ Union understands that under s3 of the UK’s Human Rights Act 1998, public bodies must take into account their obligations under the European Convention of Human Rights. Schools and local authorities are public bodies.
Article 2 of Protocol 1 of the European Convention on Human Rights (ECHR) states “No person shall be denied the right to education. In the exercise of any functions which it assumes in relation to education and to teaching, the State shall respect the right of parents to ensure such education and teaching in conformity with their own religions and philosophical convictions.”
Article 8 covers the rights to respect for private and family life and lays down the limited circumstances in which the State may interfere with it, which relate to there being a danger to moral or physical wellbeing.
Article 14 of ECHR requires that people are not discriminated against. This includes the failure to take into account disabilities.
In coming to any decision regarding absence from school, the school must take into account the individual circumstances of the child and the family and its obligations under the provisions outlined above.
There is as yet no legal proof that this is the case. To get this proof, a case needs to be tested in the courts through the process of “Judicial Review”. That is what we are trying to achieve on behalf of Noah Myers.
If you believe you have a strong case which we could help you with, please get in touch. The Judicial Review process must be started within 3 months of the school’s final decision to refuse the absence.
We cannot suggest that you initiate a Judicial Review action on your own as court proceedings may be complex and costly for you and the school. However, your school may be unaware of their obligations as outlined above and you may wish to draw their attention to this page.
Fighting a Fine
If you are thinking of fighting a fixed penalty notice, ideally you need a solicitor. You will be taken to court under s444(1) of the Education Act. It is important to note that the magistrates are not allowed to consider whether leave should have been given ie in defending your decision not to pay a fine, you can’t say the school was wrong not to allow the absence. The magistrates only consider whether there has been “regular” attendance at school notwithstanding any unauthorised absence.
There is a case which had an appeal by way of “case stated“ from the magistrates court. This case can be seen here.
Fighting the fines in court can be difficult and even if you get a conditional discharge you could face between £500 and £1000 of costs being awarded against you. 16,000 parents were taken to court under s444(1) last year. We are aware of three cases where the parents have won (two in the Isle of Wight and Kerry Capper), a handful where press coverage led to the case being dropped (eg the Haymores) and lots where the parents have lost. Jon Platt in the Isle of Wight won his case most recently and Jon gives his arguments here, which are based on the case above. This does give rise to hope but we would caution against thinking his case automatically means you needn’t bother paying a fine – do have a good look at the details of the case and please be aware that the Isle of Wight Council has submitted an appeal against the decision before you cheerfully dash to court. If we can add you to the list of successes, please let us know!