Fighting it in court

The legal issues in respect of refusal of permission for term time absence are in fact human rights issues.  In forcing your child to go to school under the threat of fines if your child does not go to school it is an interference in family life.

Article 8 of the European Convention of Human Rights says:

ARTICLE 8

Right to respect for private and family life

1. Everyone has the right to respect for his private and family life, his home and his correspondence.

2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic wellbeing of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others. ARTI

Article 8 is what is called a qualified right.  This is as opposed to absolute rights such as the right to life or a fair trial.

The key words are: Necessary in a democratic society ...  or the economic wellbeing of the country  ... for the protection of health or morals, or for the protection of the rights and freedoms of others.

The idea of the legislation is that it protects the right of the child to education and potentially benefits the economic wellbeing of the country.  Where this argument falls apart for the government relates to the research that looks at the effect of absence on KS2 by type of absence.   More recently the government has published research that looks at the average effect of all types of absence on attainment which unsurprisingly is bad.

However, back in November 2011 the government published a report (DFE-RR171) which looked at the effect of different types of absence and on page 58 it says: "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. “ 

What this means is that refusing permission for an authorised family holiday is in fact a contravention of human rights unless they can find some very obvious specific reason otherwise (say a holiday that lasts 2 months where no-one is trying to do any home education or something like that).  That is because the interference in family life is not "necessary".

So, we know why it is unlawful.  What can be done about it.

The first thing is that what really needs challenging is the decision to refuse permission.  Once you have taken your child on holiday you have broken the law if you don't have permission.  It is difficult to indirectly challenge that decision so it is normally best to pay the fine, but to challenge the refusal.

First you need to appeal to the governing body.  

Then you need to look at challenging the decision through judicial review.  You really need help with this, but the first step can be to send a letter called the pre-action protocol for judicial review letter.  It is best to talk to us before doing this, but this is an example.

                                                                                                (put your address here)

 

(put the school's address here)

(put the date here)

Dear Sir/Madam

Pre-action protocol for Judicial Review

Please read the following letter in accordance with the pre-action protocol for judicial review.

  1. To:  (put the schools name here)

  2. Claimant: (put your name here)

  3. Reference: (put a reference if you want one)

  4. Matter to be challenged: The refusal to authorise leave for our child/children (put names and dates)

  5. The Issue:

The school is a public authority and in making decisions needs to take them in accordance with the 1998 Human Rights Act. Section 3 of that act requires that decisions are taken in accordance with the European Convention of Human Rights (ECHR).

Article 8 of the ECHR includes the right to respect for family life and enjoy each other’s company.  Refusing to give permission for absence is an interference in that right.

Article 8 of the ECHR gives a qualified right where it must be shown that the inferference in that right is "necessary in a demoncratic society" for one of a number of purposes.   This has not been shown.

The original regulations that guide this decision making are the The Education (Pupil Registration) (England) Regulations 2006. These were amended by The Education (Pupil Registration) (England) (Amendment) Regulations 2013/756 with effect from 1st September 2013. Both of these sets of regulations are secondary legislation. Secondary legislation can be struck down by the courts when it contravenes the European Convention of Human Rights. Hence it is ECHR Article 8 that takes precedence and the decision should comply with Article 8.  This decision does not.

It should be noted that the only published research that considers the effect of different types of absence is Research Report DFE-RR171 published by the Department for Education in November 2011. In that report it indicates (page 58) “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. “

Since that point the government have published research covering all types of absence unnecessarily conflated which unsurprisingly indicated that absence as a whole has a negative affect on KS2 outcomes.. However, it remains that the government's research indicates that “authorised family holidays” are not seen as affecting KS2 outcomes. Hence this decision cannot be justified on the argument that it would impact the educational outcomes for my (child/children).

Hence the decision is unlawful and should be changed to one giving permission.

[there can be more arguments here, but the above is a good start]  

6.The details of the action that the defendant is expected to take:  To change the decision to one of giving permission.

7. Legal Advisors:  I am/We are litigants in person.

8. Address for service of court documents

(put your address here)  

9. Interested parties

There are none.

10. Timescale for a response

Within 14 days of this letter.



 

 

Precedents

There is a case which had an appeal by way of case stated from the magistrates court. This case can be seen here http://www.bailii.org/ew/cases/EWHC/Admin/2006/1110.html

It is important to note that the magistrates are not allowed to consider whether leave should have been given. (para 16);

The magistrates only consider whether there has been "regular" attendance at school notwithstanding any unauthorised absence. 

It is important to understand this as fighting the fines in court is likely to lose and even if you get a conditional discharge you could face between £500 and £1000 of costs being awarded against you.   We are aware of two cases where the parents have won, one where the case was withdrawn and lots where the parents have lost.

That is why we believe the only good route of challenge to the decision to refuse leave for term time absence is challenging that decision specifically. 

 

Barnfather v Islingtion
Sutton LB

 

 

 

 

 

tpu
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...


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