The law on "holiday fines" hasn't changed

"The future of holiday fines was called into question last week, when a father won a court battle after refusing to pay a £120 fine for taking his six-year-old daughter out of school."

BBC News, 21 October 2015

"That was a magistrates' court, and it doesn't set any precedent elsewhere"

Nick Gibb MP, Minister of State for Schools, 21 October 2015

The Today programme earlier featured a discussion about parents taking their children out of school to go on holiday.

This follows reports about the "landmark legal battle" of one Jon Platt, who having taken his daughter to Disney World during term time was reportedly issued a fine that he refused to pay. Mr Platt successfully defended himself against charges of failing to ensure that his daughter attended school regularly.

While the proceedings may have been a battle, they weren't "landmark" in any legal sense. They may highlight a possible legal problem with so-called "holiday fines", but Mr Platt's case can't set a precedent to that effect.

Magistrates' courts don't set a binding legal precedent

From what Mr Platt says, the crime he would have been charged with is "failure to secure regular attendance at school".

The law says that "If a child of compulsory school age who is a registered pupil at a school fails to attend regularly at the school, his parent is guilty of an offence".

Relying again on the reporting of Mr Platt's situation, it seems the magistrates' court decided that he had "no case to answer" on this charge. This means that the prosecution either had no evidence that Mr Platt's child wasn't attending regularly, or the evidence was too weak for a conviction even before being challenged by the defence.

That's likely to be the end of the matter so far as Mr Platt's case is concerned. What this doesn't do is set a legal precedent for anyone else being prosecuted for this offence.

As textbook The English Legal System puts it, "no court below the High Court sets a precedent for anyone".

The next magistrate faced with a case of failing to secure regular attendance at school will ask the same question as before: has the Crown proved beyond a reasonable doubt that the child's attendance wasn't regular? No lawyer will refer to Mr Platt's case; it's irrelevant to that question.

It's true that outside the legal system, a "precedent" just means something that's happened that can be used to justify the same thing happening in future. In that very general sense, you could describe the case as a "precedent", but not in court. It doesn't change the law.

Why was there a fine if there couldn't be a conviction?

Mr Platt's original fine was in fact a "penalty notice". These are, in England, an alternative to prosecution for failure to ensure regular attendance.

But the trigger for a penalty notice seems to be different to what's required for a successful prosecution. The government thinks that they "can be used where the pupil's absence has not been authorised by the school".

This includes "one-off instances of irregular attendance such as holidays taken during term time without the school's permission", according to the official guidance.

Isle of Wight Council says it was simply following this guidance.

Official guidance followed by councils may not accurately reflect the law

It's possible that the guidance doesn't accurately reflect the law. The legal power to issue penalty notices ties them to cases of failure to secure regular school attendance—they can be issued where there is "reason to believe" that offence has been committed. It doesn't seem to give an additional power to give a penalty notice where there is a "one-off" absence.

On this, Mr Platt says that "There has been precedent set in the High Court that says that unauthorised holiday in term time is not in itself a breach of the legislation if the child has attended school regularly". Unlike the magistrates, the High Court can set legal precedents.

The High Court did indeed say in 2006 that "it does not automatically follow that there will not have been regular attendance merely because there has been an unauthorised holiday. The question will be very much one of fact and degree in each case".

Local authorities may have taken a different view because of recent changes to the rules on when schools can authorise absence. Previously, schools could allow pupils to take up to 10 days holiday in term time in "special circumstances". The Department for Education abolished this because it was concerned that this was becoming routine; now holidays get no special treatment.

But that didn't change the overall law on regular attendance. Holidays may not be authorised as often, but taking them without authorisation still has to add up to irregular attendance (perhaps in combination with other absences). That may be why the case against Mr Platt was dismissed.

That doesn't change the law, or directly affect other parents in court over attendance, but it may flag up a legal problem with local authorities' approach to penalty notices in practice. On the other hand, the magistrates in this case might have made a mistake, and the guidance may be correct. It would take a higher court than the magistrates' to clarify this.

Update 2 November 2015

The Isle of Wight Council has announced that it's asking the High Court to clarify the law, saying that it "received clear advice that the magistrates may have failed to interpret and apply the law correctly in making their decision".