Bromley London Borough Council v C
| Jurisdiction | England & Wales |
| Judge | MR JUSTICE SULLIVAN,LORD JUSTICE AULD |
| Judgment Date | 07 March 2006 |
| Neutral Citation | [2006] EWHC 1110 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | CO/9540/2005 |
| Date | 07 March 2006 |
[2006] EWHC 1110 (Admin)
IN THE HIGH COURT OF JUSTICE
DIVISIONAL COURT
QUEEN'S BENCH DIVISION
lord Justice Auld
Mr Justice Sullivan
CO/9540/2005
MR J HALL (instructed by London Borough of Bromley, Legal & Democratic Services) appeared on behalf of the CLAIMANT
MR R DIXON (instructed by Robin Murray & Co, Swanley) appeared on behalf of the DEFENDANT
This is an appeal by way of case stated from a decision of the Bromley Magistrates on 14th September 2005. The facts as set out in the case are as follows:
"1. On 15th day of March 2004, 3 informations were laid by the Appellant against the Respondent alleging the commission of offences contrary to Section 444(1) Education Act 1996 as amended by section 72(1) Criminal Justice and Court Services Act 2000 that:
"Between 3rd November 2003 and 6th February 2004 being the parent of a child of compulsory school age, registered as a pupil at [the school], failed to secure the regulation attendance thereat."
The informations were laid in relation to three children: namely [G], born 1st November 1996, [B] born 1st November 1996 and [E], born 7th March 1995.
2. We heard the said informations on 14th September 2005 and found the following facts:
(a) The Appellant is a Greater London Borough and is the Local Education Authority within the meaning of section 12 Education Act 1996;
(b) The Respondent is the parent of the three children with the duty to cause them to receive efficient full-time education suitable to their age, ability and aptitude within the meaning of Section 7 Education Act 1996;
(c) Recorded level of attendances for each child was as follows:
(i) [E] —72 actual attendances out of 114 possible attendances
(ii) [G] —74 actual attendances out of 114 possible attendances
(iii) [B] —78 actual attendances out of a possible 114 attendances;
The Head Teacher's certificates of attendance for each of the three children is appended to the case.
(d) The performance of each of the three girls educationally was, and is, above average. One of the children is receiving extra tuition within the gifted programme;
(e) At the time of registration at [the school] the three children were residing with the Respondent who had been allocated temporary accommodation in Hayes by the London Borough of Bromley. The Respondent's previous home had been repossessed during the course of divorce proceedings. Subsequent to registration at the school the Respondent was further re-housed by the London Borough of Bromley in temporary accommodation in Orpington, a distance now in excess of 8 miles each way and, therefore, not within walking distance of the school;
(f) During the relevant period the journey to school by public transport would, therefore, have entailed lengthy travelling time and expense for three children and accompanying adult;
(g) No arrangements were made by the Authority for the children's transport to and from their school in accordance with Section 444(4)(b)(i) Education Act;
(h) Due to the distance to school, and the time and expense of using public transport, the only practical means of transport available to the Respondent was by private motor vehicle;
(i) The Respondent was advised by the Appellant to consider registering the children at one of two nearer schools, but no suitable arrangements to enable them to become registered pupils at a school nearer to their home were made by the Appellant within the meaning of Section 444(4)(b)(iii);
(j) The Respondent chose to keep the children registered at [the school] to ensure an element of continuity in their lives in anticipation that she would be moved again as their accommodation was temporary. She considered that the children were performing well, had friends there and were known to the teachers;
(k) During the relevant period recordable absences for reasons of sickness were as follows: [E] 3; [G] 3; [B] 1;
(l) The Respondent had provided medical notes for further absences which had not been passed to the school by the children. These days were therefore recorded as unauthorised absences;
(m) The Respondent suffers from Sciatica and when medical certificates were provided to the school some of the absences attributable to this were treated compassionately and not recorded as unauthorised absences;
(n) The Respondent had taken the children out of school for a holiday during the week commencing 3rd November [2003]. The holiday included participation in a dance finals competition which the Appellant believed was important to the children's social development. Application for leave to take this holiday had been refused by the school and was, therefore, recorded as 10 unauthorised absences for each child;
(o) The Respondent also won a holiday competition but she did not seek leave from the school to take the children on this holiday resulting in a further 8 unauthorised absences for each child for the week commencing 3rd January [2004];
(p) All other recorded absences, other than those for medical reasons described above, were attributable to the Respondent's car breaking down or to bad traffic conditions and, whilst the children did attend school on those days, they attended too late for their attendance to be recorded on the register, the registration period ending after 30 minutes.
3. It was contended by the Appellant that:
(a) There was no duty on the Appellant to make suitable arrangements for the children's transport in accordance with Section 444(4)(b)(i) as it was the choice of the Respondent that the children remained registered at [the school];
(b) The unauthorised leave of absence by reason of the two holidays itself amounted to failure to secure regular attendance;
(c) The children only attended school as described at paragraph 2(c) above.
4. It was contended by the Respondent that:
(a) The true level of attendance was: [E] —80 out of a possible 114; [B] —81 out of a possible 114; [G] —79 out of a possible 114;
(b) Apart from the two holidays, non attendances were due to the sickness of the children or the Respondent, lateness occasioned by distance travelled or car breakdown and, therefore, this did not amount to a failure to secure regular attendance in accordance with Section 444(3)(b);
(c) That the local education authority had failed to discharge its statutory duty in accordance with section 444(4)(b)(i) and that duty remained regardless of whether it was the Respondent's choice to continue the children's registration at [the school] following her move.
5. We were referred to no authorities.
6. We were of the following opinion:
(a) The Respondent had not failed to secure regular school attendance;
(b) The Respondent ought to have exercised more care regarding absences for holidays during school term but the absences were, in our view, justified;
(c) The Respondent had provided good and cogent explanations for other absences recorded on the school record of attendance.
Questions for the consideration of the High Court:
(a) Having accepted the Respondent's explanations for recorded absences were we wrong to take those explanations into account to determine whether or not the Respondent had, in fact, failed to secure regular attendance or were we bound by the record of attendance actually recorded by the school?
(b) Does the taking of an unauthorised holiday of itself amount to failing to secure regular school attendance?
(c) Where a parent has moved home through lack of choice, is there a continuing duty on the Local Authority to make suitable arrangements in accordance with Section 444(4)(b) and, if so,
(d) does that duty cease if that parent exercises a choice to leave the children enrolled at their original school where there are nearer schools to their home?"
The relevant provisions of section 444 of the Education Act 1996 are as follows:
"(1) 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.
(1A) 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…
(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.
(5) In subsection (4) 'walking distance' —
(a) in relation to a child who is under the age of eight, means … (two miles), and
(b) in relation to a child who has attained the age of eight, means … (three miles).
In each case measured by the nearest available route…
(8) A person guilty of an offence under subsection (1) is guilty on summary conviction to a fine not exceeding level 3 on the standard scale.
(8A) A person guilty of an offence under subsection (1A) is liable on summary conviction -
(a) to a fine not exceeding level 4 on the standard...
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