Barnfather v Islington Education Authority
| Jurisdiction | England & Wales |
| Judge | Mr Justice Maurice Kay,Mr Justice Elias |
| Judgment Date | 07 March 2003 |
| Neutral Citation | [2003] EWHC 418 (Admin) |
| Docket Number | Case No: CO/4139/2002 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 07 March 2003 |
[2003] EWHC 418 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEENS BENCH DIVISION
DIVISIONAL COURT
Royal Courts of Justice
Strand,
London, WC2A 2LL
The Honourable Mr Justice Maurice Kay
The Honourable Mr Justice Elias
Case No: CO/4139/2002
Tim Owen QC and Ms Quincy Whitaker (Instructed by BSB Solicitors) for the Claimant
Jonathan Auburn (instructed by Legal Services, L. B. Islington) for Defendant (1)
MR B Hooper & Clive Lewis (instructed by Treasury Solicitors) for Defendant (2)
On 6 February 2002 the Appellant was convicted at Highbury Corner Magistrates Court of an offence under section 444(1) of the Education Act 1996. She was fined £75 and ordered to pay prosecution costs of £50. Section 444(1) provides:
"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."
The Appellant was not present in the Magistrates Court when she was convicted. She subsequently appealed to the Inner London Crown Court. The appeal was listed to be heard on 8 July 2002 by His Honour Judge Van der Werff and two lay justices. Counsel for the Appellant raised a preliminary issue as to whether the offence as prescribed by section 444(1) is compliant with the European Convention on Human Rights and Fundamental Freedoms (ECHR). The case for the Appellant was and is that section 444(1) is not ECHR compliant because it is a strict liability offence which does not require proof of any knowledge or fault on the part of the parent. The Crown Court ruled that the offence is ECHR compliant. However, the appeal to the Crown Court remains unresolved because of the present appeal to the Administrative Court by Case Stated in relation to the preliminary issue. The questions posed by the Case Stated for the opinion of this court are:
"1. Is section 444(1) of the Education Act 1996 as interpreted by the higher courts prior to the enactment of the Human Rights Act 1998 compatible with the provisions of the European Convention on Human Rights?
2. If not, can the section be reinterpreted compatibly with the Convention pursuant to section 3 of the Human Rights Act 1998 and, if so, how?"
The statutory framework
Section 7 of the 1996 Act is headed "Duty of Parents to Secure Education of Children of Compulsory School Age". It provides:
"The parent of every child of compulsory school age shall cause him to receive efficient full time education suitable –
(a) to his age, ability and aptitude, and
(b) to any special educational needs he may have,
either by regular attendance at school or otherwise."
By section 8 compulsory school age runs from the age of 5 to the age of 16.
Section 444 is designed to encourage compliance with and to punish non-compliance with the section 7 duty. The offence under section 444(1) has been part of the relevant legislation since 1944. However, it has recently been supplemented by the enactment of an additional offence under section 444(1A) which was inserted into section 444 as a result of section 72(1) of the Criminal Justice and Court Services Act 2000. The new offence under section 444(1A) is defined as follows:
"If in the circumstances mentioned in subsection (1) the parent knows that his child is failing to attend regularly at the school and fails without reasonable justification to cause him to do so, he is guilty of an offence."
Thus, the offence under section 444(1) is the less serious offence and can properly be described as an offence of strict liability. The new offence under section 444(1A) is more serious and requires proof of knowledge on the part of the parent and an absence of reasonable justification. The respective seriousness of the two offences is reflected in the provisions for punishment. The maximum punishment in relation to section 444(1) is a fine "not exceeding level 3", which is presently fixed at £1000 on the standard scale. The maximum punishment in relation to the offence under section 444(1A) is a fine "not exceeding level 4", that is £2500, and/or imprisonment for a term not exceeding three months.
By section 446, proceedings for an offence under section 444 can only by instituted by a local education authority. Section 447 provides:
"(1) Before instituting proceedings for an offence under section ….444, a local education authority shall consider whether it would be appropriate (instead of or as well as instituting the proceedings) to apply for an education supervision order with respect to the child.
(2) the Court –
(a)….
(b) before which a person is charged with an offence under section 444,
may direct the local education authority instituting the proceedings to apply for an education supervision order with respect to the child unless the authority, having consulted the appropriate local authority, decide that the child's welfare will be satisfactorily safeguarded even though no education supervision order is made."
There are additional provisions in section 444 which impact on the meaning of "failure to attend regularly". They are as follows:
"(3) The child shall not be taken to have failed to attend regularly at the school by reason of his absence from the school
(a) with leave,
(b) at any time when he was prevented from attending by reason of sickness or any unavoidable cause, or
(c) on any day exclusively set apart for religious observance by the religious body to which his parent belongs.
(4)The child shall not be taken to have failed to attend regularly at the school if the parent proves –
(a) that the school at which the child is a registered pupil is not within walking distance of the child's home, and
(b) that no suitable arrangements have been made by the local education authority ….for any of the following-
(i) his transport to and from the school,
(ii) boarding accommodation for him at or near the school, or
(iii) enabling him to become a registered pupil at a school nearer to his home."
"Walking distance" is defined by sub-section (5). There is a further provision in relation to children of no fixed abode.
Finally, it is provided by section 444(8B) –
"If, on the trial of an offence under sub-section (1A), the court finds the Defendant not guilty of that offence but is satisfied that he is guilty of an offence under sub-section (1), the court may find him guilty of that offence."
The existing case law on section 444(1)
The authorities prior to the coming into force of the Human Rights Act 1998 consistently demonstrated the strict liability imposed by section 444(1) and its predecessors. In Jenkins v. Howells [1949] 2 KB 218 the pupil had been continuously away from school because her mother was a chronic invalid and it was necessary for the girl to assist with housework. When the mother was prosecuted pursuant to the corresponding provision in the Education Act 1944 she contended that her daughter's absence was the result of "any unavoidable cause" by reference to the predecessor of section 444(3)(b) The Divisional Court rejected that contention and held that "unavoidable cause", like sickness, must be in relation to the child and not the parent.
In Crump v. Gilmore (1969) 68 LGR 56 the justices had found as facts that the parents of a secondary school pupil had not known about relevant absences until after the event and that there had been no neglect on their part. The justices acquitted the parents but on an appeal by the prosecutor it was held that the offence under what is now section 444(1) is an absolute offence and it is unnecessary to show knowledge on the part of the parents of the child's absence or any neglect on their part. Such matters merely go to mitigation. The Divisional Court remitted the case to the justices with a direction to convict. The Divisional Court expressed a degree of sympathy with the parents. Lord Parker of Waddington CJ said (at page 60):
"I would only add that whilst sentence is not a matter for this court, it seems to me that if the justices believed the parents, as they apparently did, this would look as if it were a case for absolute discharge"
Cantley J added that:
"If they thought it appropriate, the justices could absolve the parents not only from any penalty but from any costs."
The most recent affirmation of these authorities was in Bath and North East Somerset Council v. Warman [1999] ELR 81. In that case a fifteen year old girl absented herself from school when she went to live with a boyfriend at an address which was not known to her mother. The justices acquitted the mother on the basis of "any unavoidable cause" but the prosecutor's appeal to the Divisional Court was allowed for the same reasons as in Jenkins v Howels and Crump v. Gilmore, both of which were followed. Lord Justice Rose said:
"However hard it may appear to be, in my judgment, the construction placed upon this statutory provision in the authorities to which I have referred, makes the conclusion inescapable that the circumstances of this case did not give rise to unavoidable cause for the child's absence from school."
Lord Justice Rose expressed some surprise that the mother had been prosecuted and added that:
"the justices might very well think that the appropriate penalty…is one of absolute discharge."
Faced with this line of authority, Mr. Owen QC on behalf of the Appellant in the present case, accepts that at this stage the case for the Appellant can only be put on the basis of the Human Rights Act 1998.
The human rights issue.
In a nutshell, Mr. Owen's submission is that section...
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