Brighton dad fails in high court bid to overturn school holiday fine – but the fight goes on

Posted On 23 May 2016 at 1:15 pm

A Brighton dad who challenged a ban on term-time holidays at the High Court says he hopes another father’s success at quashing his fine will help convince the government to change its policy.

Noah Myers
Noah Myers argued that putting schools in a position to effectively  judge whether someone has broken the law or not, with no right of appeal, breached his human rights after one of his son’s schools reported him to the council for taking them to Poland to see their American cousin compete internationally.

Last month, he heard that his high court bid was unsuccessful, but this month another father, Jon Platt, has his fine quashed by using the different argument that he should not have been fined for taking his daughter out of school as her overall attendance through the year was good.

Mr Myers says he is now preparing for another challenge while waiting to see how this decision affects government policy before deciding whether to take his battle onto the European Court.

Christmas recycling

He said: “Under the existing approach, schools are compelled to make value judgements on who and what ought to be important in family life without regard to academic merits or the wellbeing of the child.

“In my case, the local authority and school jointly determined (without my consultation) that my children’s cousin did not justify support simply because she was a cousin.

“Not only is this approach deeply insulting, but it raises significant questions over civil liberties and whether this degree of intrusion is justified (or sensible).

“The perceived merit of cousins is  a very flimsy basis for a criminal decision and  makes a complete mockery of the criminal justice system – especially as there is no right to appeal, submit evidence or contest a decision outside judicial review.

“My hope is that the local authority does what it can to encourage more credible and less intrusive decisions, but the root of the problem is in central government.”

Mr Myer’s view that the government needs to look again at its approach to unauthorised absence chimes with the city council’s lead councillor for education, Tom Bewick.

In an open letter to education secretary Nicky Morgan, Mr Bewick said: ” I was very disappointed at the knee-jerk reaction to the ruling by your officials.

“Instead of saying that you would reflect on the ruling and look to consult on the matter with representatives of local authorities, head teachers and parents, you decided to issue an immediate statement promising simply to implement an even more punitive regime in future.

“Before you rush into new legislation, I would encourage you to reflect on this recent case and others like them, where exasperated parents have increasingly lost confidence in your department’s ability to respond to the broader emotional, health and well-being of children who may, on occasion, be taken by their parents out of school during term-time.

“The current definition of ‘exceptional leave’ is clearly not working and neither has this definition it seems satisfied the courts.

“The guidelines before 2013 placed more discretion with headteachers, in consultation with parents, about what overall was in the best interests of their child’s education and the wider school community.

“I would strongly encourage you therefore to introduce a far less punitive, more flexible approach to unauthorised term-time absences in future. That would leave council resources and our courts to focus on real offenders.”

Mr Myers’ case was not accepted, in part because it was passed to a third party, the Parents’ Union, but also because the judge said they had not shown that the decision had breached Article 8 of the Human Rights Act, which protects individuals’ rights to a private family life.

Mr Myers believes that the judge did not fully consider the arguments and that the arguments and evidence can be bolstered.

He is also considering arguing that the limited right to appeal and contest the head’s decision breaches his right to a fair trial.

Mr Myers’ sons attended Stanford Infants and Stanford Junior School. Both schools marked the absences as unauthorised, but only the junior school asked the city council to instigate a fine.

While he waits to see what the government does next, Mr Myers says he will continue to campaign with the Parents’ Union, which also opposes the forced academisation of schools and what it sees as the alienation of parents in the education system.

  1. Noah Myers Reply

    The case we brought was that the school improperly interfered with Family Life without adequate justification (Article 8) and that the law encourages schools to do so. The story has an error.

    We came up short, not so much on the merits of the case, in my opinion but in how the case was presented. There were many layers of arguments and evidence across all levels of government (school, LA and Central Gov’t), that should have been put across in the application stage in order to satisfy the judge. Confusion arose as to whether the school or law was being contested. To seek a protective cost order and limit financial risk, pro-bono legal support is important, but that implies less experience. We’ll be better prepared for the next one…but hopefully we won’t need it! A revision to the current law needs to provide a more sensible way to contest a decision.

  2. Noah Myers Reply

    For readers with a legal mindset, the issue of locus standi also loomed large (ie whether a case could be passed to a third party and a Ltd company). Had the judge accepted this, it may have had implications across the entire judicial review process, so it was a hard sell. The appeal decision came out just days before the Jon Platt hearing and my theory is that they looked at the two cases and went with the more straightforward case
    .

  3. jt Reply

    I am disputing a fine issued recently. My daughter attends school regularly, and we went away to see her father who she had not seen for 6 years. Today I requested that the penalty be revoked as it is void. I am not sure I can proceed if the council refuse, it does not look good for a single to go through with courts etc, too risky

  4. jt Reply

    Oops, I mean a penalty notice, btw the schools don’t get any extra funding, just wondering what this is all about, surely the penalty should go back to the schools, just a thought…just wondering how it is spent, Brighton is a huge area, a nice money spinner, and easy earner, rant over

  5. Noah Myers Reply

    I suspect the LA is waiting for guidance, but I would ask them in writing to stop the FPN clock in the meantime. They can withdraw the penalty if new information arises or they have made an error so there is scope for a correction and I would surprised if they didn’t withdraw the FPN.

    In the meantime I suggest that you check out https://www.facebook.com/groups/320889104722130/ where parents are sharing their experience and offering advice (parents are lawyers too). I would also refer to Jon Platt’s website at JMP Partnership which offers helpful resources. There are several potential ways to raise a challenge if the FPN is not removed.

    I am not sure that fining is a money spinner. I understand that other Councils are losing money and many feel there are better ways to use resources. (Even spending money on tutoring in limited cases of high risk leave would be preferable to the present system as fining a parent doesn’t help a child or a teacher).

    Penalty income should not go back to the schools however. There is already a potential conflict of interest due to Ofsted targets and income from penalties would exacerbate this and undermine a Head Teacher’s credibility, which would not be healthy.

    Good luck.

  6. jt Reply

    Thank you kindly. I have not paid the fine, as I have not committed a crime,and also having the same view of a breach of human rights, Article 8. Brighton council informed me that I should appeal to the school governors, as they had spoken to the headteacher, who has decided to stand by her decision not to authorise the absence. The school, and Brighton Council do not seem to share the view that seeing a father in another country is exceptional, and that my child’s attendance was 100% for 3 years. My case is on a point of law, ie attendance, and a right to see her father. I will check out the sites you kindly showed me, I also wish you luck with your case.

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