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This article was first published on LexisPSL Local Government on 24 January 2014. Click here for a free 24h trial of LexisPSL.

Taking the register--the risk of unauthorised school absences

24/01/2014 Local Government analysis: Claire Colbert, a senior associate in family law at Blake Lapthorn, and Tim Williamson of Blake Lapthorn's business regulatory team, look at some of the issues raised by the recent prosecution of parents for unauthorised school absences.

Original news
Parents fined for taking children on holiday during term time, LNB News 16/01/2014 35 Daily Telegraph, 16 January 2014: A Shropshire couple were fined 993 after taking their three children out of school to go on holiday. Stewart and Nathasha Sutherland appeared before Telford magistrates' court and avoided jail after pleading guilty to failing to ensure their children attended school regularly.

Are there legitimate reasons for taking children out of school early?
Historically the Education (Pupil Registration) (England) Regulation 2006, SI 2006/1751 allowed head teachers to grant absence for the purposes of family holidays during term time in 'special circumstances' (up to 10 school days per year or for longer periods of time in exceptional circumstances). Amendments to these regulations have been made by the Education (Penalty Notice) (England) (Amendment) Regulations 2013, SI 2013/757 which came into force on 1 September 2013. The reference to family holidays and extended leave has been removed as well as the threshold of 10 school days. It has been made very clear that head teachers are now not able to grant any leave of absence during term time unless this is in exceptional circumstances. Head teachers will determine the number of school days a child can be away if the leave is granted--however, examples of when the leave will be granted have not been provided. I would anticipate that this would include travelling to attend upon a terminally ill relative or a funeral, but it is very clear leave will not be granted for a family holiday.

What sanctions can parents face?

If consent has not been obtained from the school initially there is a fine by way of a penalty notice. The fine is 60 for the first five days and there is a 21-day period in which to pay this. After 21 days the fine increases to 120 if paid within 28 days. The timescales for payment of fines has decreased enabling the local authority to act faster on prosecution. The other sanctions payable are under the offence of failure to secure regular attendance at school by a registered pupil, and if a person is found guilty of this offence the penalties include a fine which should not exceed 2,400, or imprisonment for a term not exceeding 51 weeks.

Whose responsibility is it to report early absence?

If a parent wishes to take their child out of school then they must seek the permission of the head teacher. It is the parents' responsibility to ensure that children of compulsory school age attend school regularly.

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The law requires all schools, including independent schools, to have an admission register and, with the exception of schools where all pupils are boarders, an attendance register. All pupils (regardless of their age) must be placed on both registers. Schools must take the attendance register at the start of the first session of each school day and once during the second session. On each occasion they must record whether every pupil is: o o o o present attending an approved educational activity absent, or unable to attend due to exceptional circumstances

The school must use the appropriate national code for recording attendance. The national codes enable schools to record and monitor attendance and absence in a consistent way. They are also used for collecting statistics through the School Census System. This means that schools and local authorities can better understand the level of and the reasons for absence. The two relevant codes in relation to leave of absence are as follows: o o Code G--Holiday absence not authorised by the school Code H--Holiday absence authorised by the school

What should lawyers be advising parents?

Parents are advised the law is there for the local authority to enforce and it is therefore important that parents do not take children out of school during term time without being fully aware of the risk of both a penalty from the local authority, and possibly of prosecution including a fine of up to 2,400 and imprisonment for up to 51 weeks.

What should lawyers be advising schools?

The recent cases reported in the press have really highlighted the serious consequences that can follow from a parent taking their child out of school during term time. Time will tell whether or not this will have the desired effect. Schools must consider each leave request on its merits but it is now very clear that there is pressure on head teachers to refuse such requests. Head teachers must be able to demonstrate that they have considered the request fully and fairly and maintain full records on admission and attendance as required by law. Interviewed by Anne Bruce. The views expressed by our Legal Analysis interviewees are not necessarily those of the proprietor.