When the law is an ass, kick it!

Image: Jackie and Hazel at the Hostel Mostel in Sofia

In our previous article, When Jon met Jackie, we promised an update on the outcome of Jackie Turner’s court case following her prosecution, along with Hazel’s dad Max, for daring to decide, as mere parents, on the best interests of their own child for three weeks in school term time when Hazel enjoyed a unique backpacking adventure in Europe.

The bad news is that the family lost their case and both parents were punitively fined as a result of what we can only describe as a maliciously motivated attack on parental responsibility. The fact that such a disproportionate financial penalty will have a highly detrimental impact on Hazel’s “wellbeing” seems to be lost on Herefordshire Council, whose own employee had misleadingly assured Jackie prior to the trip that temporary deregistration (which would have removed the possibility of parental prosecution on non-attendance grounds) would be unnecessarily “disruptive” to Hazel’s education. Risible, or what?

Jackie has meanwhile received so much support from the public and positive exposure in the media that term-time holidays are set to stay a very hot topic. Jon Platt, the recently victorious term-time holiday litigant from the Isle of Wight who provided invaluable advice to Jackie prior to her court case, now plans to hire a top QC to represent him at the upcoming hearing of an appeal brought by his council, at taxpayers’ expense, seeking to overturn an earlier decision in his favour.

By way of clarification, we had argued in our previous post that Herefordshire Council’s prosecution should fail on several grounds, but after closer scrutiny of the 1996 primary English education legislation and available defences to the charges brought under section 444(1), we were forced to conclude that Jon Platt’s defence was the only one that would stack up and would hinge on the magistrates’ ruling on “regular” and individual circumstances of “fact and degree”. Jackie’s prosecution was brought under a section where strict liability applies and where the burden of proof favours the LA, so the defences are essentially certificated (child’s) sickness, distance (although that isn’t clear cut) and regularity. In court, Jackie argued valiantly and articulately as a lay litigant in person against the council’s taxpayer-funded legal representative (so much for equality of arms) that regularity should be construed over more than a single term, but as Jackie herself explains:

“…the bench did not accept that regularity of attendance should be calculated over a full academic year, and decided a single term was enough. As a result, Max and I were convicted and charged £1400 between us.”

The story was covered well by the Herefordshire Times:

“Education officer Lorraine Ralph said Turner would not have faced any legal repercussions had she de-registered Hazel from school for the three weeks, something the defendant was considering. However, the parent was warned by the officer this may disrupt her education and that there would be no guarantee a place would remain at the same school when she returned.”

In other words she was misled into believing the maximum repercussions would be penalty fines of £60 for each parent. Our previous article, Deregister or be damned, and the outcome of Jackie’s case should serve as a reminder to parents in England who are planning a term-time holiday that it is always going to be a safer option to formally remove a child from school to provide “education otherwise” if they are to avoid heavy fines, a criminal record and/or prison, since delegating what is in law their parental responsibility to a council school means losing thair parental rights to decide what is in their own children’s best educational interests.

The Herefordshire Times article goes on:

Cllr Jonathan Lester, the council’s cabinet member for young people and children’s wellbeing, issued a statement saying: “We certainly don’t want to prevent children from experiencing new challenges and cultures which can enrich their development, but it’s imperative that this doesn’t interfere with their education and that parents do this in partnership with their child’s school.”

This “wellbeing” proponent really ought to read some John Taylor Gatto, John Holt or Ivan Illich, but his world view might be badly shaken and his “job” obviously relies on remaining dumbed down and questioning nothing. He needs to understand that any “partnership” where one party bullies the other due to an inbuilt power imbalance is essentially an abusive relationship.

“We are pleased that the court agreed with our assessment and would encourage other parents not to take their children out of school unless in exceptional circumstances and with the full agreement of the headteacher.”

We, unlike bullying apologists, would encourage parents in England to formally deregister their children from school, temporarily or permanently, to take back control and resume full responsibility for their children’s education. If schools didn’t provide free childcare, far fewer parents would use them in the first place.

[Short interlude for Lily Allen]

The One Show also belatedly covered Jackie’s story and the wider campaign. A video clip can be viewed on Facebook.

Jackie has meanwhile had time to reflect on the case and has shared two positive aspects that she believes can be taken from the trial. In her own words,

“Firstly, the bench accepted that term-time holidays are not against the law of themselves, but only if they constitute irregular attendance. They appeared to accept 85% attendance as a relevant threshold for regular attendance, but for more recent absences, after the Sep 15 year started, the Department of Education defines persistent absenteeism as under 90% instead of 85% so possibly courts may follow – although yesterday’s bench were unswayed about accepting the duration to measure attendance over should be a whole academic year because that’s what DofE statisticians state to be the appropriate and most statistically reliable duration, they said this was not case law and so irrelevant. However, the point is that if a parent is certain that their child’s absence for the term when the holiday took place was less than 10% of possible attendances, then they have an absolutely cracking chance, I believe, of making a case at court that would win. In a thirteen week term, this amounts to about six and a half days absence. I think that any parent receiving a fine or prosecution for a holiday resulting in six school days absence or less should seek advice and go to court. I don’t see how LA’s could prove irregular attendance in these circumstances, assuming the rest of the year had decent attendance to and no other aggravating circumstances. I’d love to see a bunch of parents all over the country going for such cases in court.

“Secondly, every LA is bound by statute, under the Penalty Regulations 2007, to write a Code of Practice for issuing fixed penalty notices. In the Code of Practice they have to write the circumstances that penalty notices will be issued and how many can be issued, etc. They are legally bound to keep to their own Code of Practice. It turned out in court that neither Herefordshire county’s educational legal officer nor the solicitor knew what was in their Code of Practice – this document says that penalty notices are issued for more than ten sessions – five days – absence over a thirteen week period. They both believed it said ten sessions or more. Now, Max and I received and paid a Penalty Notice for five days’ absence in June 2013. This was incorrectly applied, it wasn’t more than ten sessions over a thirteen week period. The Code of Practice says where a penalty notice has been incorrectly given, any money paid will be refunded. I am going to ask them to pay our money back! I would urge all parents who have paid fines or have been issued with fines to find their LA’s Penalty Notice Code of Practice online, or get it sent to them under a Freedom of Information request if it’s not readily available, and see how what it says – how many sessions have to be missed before they can give a penalty notice. This will vary from LA to LA. My guess is that there are many that have been incorrectly given, especially as our Education Legal Officer didn’t know what it said herself! Ask for your money back if they have breached their own Code of Practice, or get them to withdraw current penalties! I am going to!”

Jon Platt agrees with her analysis, describing it as “absolutely spot on”. He says:

“Magistrates aren’t bound  to calculate the % over any specific period as it stands, but if the High Court, in due course, concludes it must be over a full academic year, then that will be the end of these fines.”

Demonstrating the same mettle she was renowned for as a former home educator in Scotland when fighting the corner of her own and other families, Jackie is minded to expose the postcode lottery of the school fines (and arbitrary prosecution) regime by creating and publicising a ‘league table’ of local authorities in the form of a spreadsheet comparing the permissible number of sessions per period before penalties are triggered:

“Parents will see how stupidly arbitrary the system is. Besides, our case has shown that really fines are an optional alternative for LA’s, who may decide to prosecute without the option of a paying a penalty without having to justify any reasoning whatsoever, on a pure whim. Which makes a mockery of the fines system and any pretence of consistency or objectivity.”

Jon Platt has meanwhile set up a crowdfunding page to raise money for top legal representation as a groundswell of parents rails against a schooling system which they pay for and which is supposed to serve them, yet deliberately penalises and vilifies those who make legitimate parenting decisions in the best interests of their own children.

It also disproportionately disadvantages those on limited incomes, making them even poorer, as well as those whose annual leave entitlement has to be taken at times laid down by their employers. Only a council jobsworth would have the gall to claim that a child’s “wellbeing” will be improved and her best interests served by criminalising caring parents.

Writing the day before the trial, Jackie summed up her thoughts on the past year’s events. Does this mother sound like a criminal, or is she just a decent parent who takes an active interest in, and a hands-on approach to, her child’s education? (Answers on a postcard to the head of Herefordshire Council’s Jobsworth Department).

“This day last year, Hazel and I were enjoying the sights of Budapest in the first stage of our three week backpacking trip around Central Europe, a once in a lifetime opportunity that I grabbed when the opportunity arose. This time tomorrow, Max and I will be in court defending this trip as we have been prosecuted, without any opportunity of paying a penalty fine, for Hazel’s absence from school. She was nine and in Yr4. She went on to have only a couple of days further absence for sickness during that academic year, and achieved ‘working at’ or ‘exceeding expectations in’ all the year’s criteria by the end of the year. Yet Herefordshire Council still believe it’s in the public interest to take this to court and spend taxpayers’ money to do so.

In what way do they believe putting our family through the stress and potential financial hardship of a court case is in Hazel’s best interest? Despite our best efforts to minimise the effects on her, the repercussions to our family have taken their toll. But this isn’t about the child’s best interest, educational or otherwise, it’s about controlling parents and making parents believe that without complete submission to the whims of state and school their children’s fates are compromised and they are being bad parents.

There is so much evidence that this is not true. Home educated children consistently out-perform their schooled peers and my child’s school performance, and those of thousands of other parents’, show that a holiday once in a while against a background of positive parenting and otherwise regular attendance has no effect whatsoever on the outcome of a child’s educational career. Parents, we need to stand up for ourselves and our ability to know what’s best for our own children and not be punished for making decisions in their best interests.”

So it’s official: the law is an ass, and Herefordshire Council deserves only contempt and disdain from parents across the land who are doing their level best for their children. It’s now over to the indefatigable Jon Platt to kick all the dumb asses into gear!


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