Bath and North East Somerset District Council v Jennifer Warman
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE ROSE,MR JUSTICE MITCHELL |
| Judgment Date | 19 November 1998 |
| Judgment citation (vLex) | [1998] EWCA Civ J1119-5 |
| Court | Court of Appeal (Civil Division) |
| Date | 19 November 1998 |
| Docket Number | CO/1862/98 |
[1998] EWCA Civ J1119-5
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
CROWN OFFICE LIST
(DIVISIONAL COURT)
Royal Courts of Justice
Strand
London WC2
Lord Justice Rose
-and-
Mr Justice Mitchell
CO/1862/98
MS K STEYN (instructed by Messrs Stone King, Bath) appeared on behalf of the Appellant.
Thursday 19th November 1998
This is a prosecutor's appeal by way of case stated against a decision of the Bath and Wansdyke Magistrates. On 11th June 1998 they acquitted the respondent, Mrs Warman, in relation to an information which alleged that she was the parent of a child of compulsory school age who had failed to attend school regularly over a period of six months, prior to the date of the information, contrary to section 444 of the Education Act 1996.
The girl was born on 8th October 1981. Her sixteenth birthday in consequence fell at or about the midpoint of the Autumn term in 1997. She was undoubtedly, as the Justices found, of compulsory school age at the period to which the information related. She was one of ten children born to her mother, the respondent. Eight children live at home, six at this time were of compulsory school age and all, save the eldest, the girl featuring in this information, attended school regularly. In June/July 1997 the girl in question, as I have said then being a few months off her sixteenth birthday, left home to live with her long-term boyfriend. The Justices found that she went to live some considerable distance away in Devon. They further found that her mother did not know where she was living until Christmas 1997, by which time of course the girl was over sixteen. The attendance certificate before the Justices (dated 3rd February 1998) showed, as I have indicated, that the girl failed to attend school at all during the 1997 Autumn term. The Justices found that the mother objected to her daughter leaving home but could not stop her. She did not contact the police or the social services because on a previous occasion, when another daughter had left home, she had contacted the police but they had taken no action as they did not consider her to be at risk. In view of this girl's age, her mother did not consider her to be at risk.
There was a meeting between the mother and the Education Welfare Officer on 26th November 1997 in Bath at which the mother explained that her daughter had left and she did not know where she was. She was asked to contact the Education Welfare Officer if her daughter contacted her. When she contacted her at Christmas, the mother did contact the Education Welfare Officer and there followed a meeting in mid-January attended by the girl and her mother. The girl impressed the Education Officer, the Justices found, as being confident and self-assured and she gave the assurance that she was living in Devon and had no intention of continuing her education there or anywhere else. In fact, by the time the matter came before the Justices, the girl had returned home, then being pregnant. The Justices were referred to Jenkins v. Howells [1949] 2 KB 218 and they concluded, as appears from paragraph 3 on page 6, of the Case that, in the light of that authority, any unavoidable cause within the provisions of the statute must be one which effected the child. They say this:
"We thought that to be the position in this case, in that it was the child who had deliberately removed herself away from the family home and who had decided not to tell her mother of her whereabouts."
In consequence, as I have said, they dismissed the information. They pose two closely related questions for the opinion of this court to which, in a moment, I shall return.
The relevant provision under which the respondent was prosecuted is now contained in section 444 of the 1996 Education Act which is a consolidating statute. It provides, in its material part, as follows:
(1) If a child of compulsory school age who is a registered pupil at a school fails to attend regularly at school, his parent is guilty of an offence.
(3) The child shall not be taken to have failed to attend regularly at the school by reason of absence from the school—
…
(b) at any time when he was prevented from attending by reason of sickness or any unavoidable cause."
On behalf of the appellant authority Miss Steyn submits that the facts found by the Justices did not give rise to unavoidable cause. The reasonableness of the mother's actions and the fact that she had, as she plainly had on the finding of the Justices, lost control of this mature young woman are, submits Miss Steyn, irrelevant. Unavoidable cause is not to be equated with the reasonableness or otherwise of the parents' behaviour. So far as this child was concerned, there was nothing to prevent her from attending school. The fact that she chose to leave home and live elsewhere did not give rise to an unavoidable cause.
In support of those submissions, in addition to Jenkins and Howells, to which I have referred, Miss Steyn drew the court's attention to two authorities. The first, Spiers v. Warrington Corporation [1954] 1 Q.B. 61 was an occasion for the consideration of the provisions of section 39 of the 1944 Education Act. It is to be noted that the provisions of section 444(3)(b) of the 1996 Act which, as I have said, was a consolidating statute, are identical to the provisions of section 39(2)(a) of the 1944 Act. Lord Goddard CJ at page 67 said this, having referred to the circumstances in which section 39 came to be enacted:
"It appears to the court highly probable that the reason for that was that it was considered desirable to abolish the decision in Maher's case [he was there referring to London County Council, ex parte Maher [1929] 2 KB 97] and to substitute for it a new section which would not leave it open to justices to find any reasonable excuse parents might set up, but to confine the excuses for not sending a child to school to the reasons set out in subsection (2)(a), (b) and (c). That is the only construction which this court feels able to put upon section 39(2).
We were reminded of Jenkins v. Howells, which was heard in 1949, and in which I was sitting with Oliver and Cassells JJ. I do not hesitate to say that if it had been open to us to find that there was a reasonable excuse for not sending the child to school, we would have found it. It was a very hard case, but we felt that the statute was too strong; we could not go into the question of reasonableness."
In Crump v. Gilmore (1969) 68 LGR 56 Lord Parker of Waddington CJ, sitting with Ashworth J and Cantley J at page 59 referred to the facts of that case which related to twelve
"absences from home and it is found that on one occasion the child went to Southampton, on another occasion to Waterloo and yet another she ran away and hid in a barn. In addition to that the Justices go on to hold that the parents had no knowledge until afterwards of these 12 absences. Further that the parents had taken all reasonable steps to ensure that the child had left home in the morning to attend school and...
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Isle of Wight Council v Platt
...strictly construed: it did not cover the decision of a 15-year-old child to leave home to live with her boyfriend (in Bath and North East Somerset District Council v Warman [1999] ELR 81) or where a 15-year-old girl did not go to school because she was bullied there and her mother kept her ......