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Offence: failure to secure regular attendance at school of registered pupil.
(1) If a child of compulsory school age who is a registered pupil at a school fails to attend regularly, his parent is guilty of an offence.
The Supreme Court considered that "regularly" in this provision could mean: (a) evenly spaced; (b) sufficiently often; or (c) in accordance with the rules. Subsequently, it was decided that the meaning was "in accordance with the rules prescribed by the school". Therefore, the school can set out the rule that a child must attend "regularly" insomuch as that a pupil is expected to attend every day of the school year unless exempted due to one of the statutory reasons for authorised absence.
So, does this mean that the recourse for legal satisfaction for those parents choosing to take their children on holiday during term time is over? It can be argued that the answer is "no" as there are two Acts of Parliament on the statute books that may be of help in this matter, namely the Human Rights Act 1998 and the Equality Act 2010. The argument set out below will put forth how these two laws allow some parents to be able to claim that, by not being allowed to take their children out of school during term time for a family holiday, they are suffering discrimination.
The Human Rights Act 1998
The Human Rights Act 1998 safeguards fundamental rights for all citizens of the United Kingdom. One of those rights is set out in The First Protocol, Article 1 and concerns the "peaceful enjoyment of...possessions", protecting a person's right to peaceful enjoyment of their property without interference from the state:
The First Protocol
Article 1
Protection of property
Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by general principles of international law.
The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.
"Property" includes money and, according to the above, a UK citizen has the right to "enjoy" their money and spend it it as they wish providing the disposal of that income is within the bounds of the law.
Also contained in the Human Rights Act 1998 is Article 14 which sets out the boundaries for the prohibition of discrimination:
Article 14 Prohibition of discrimination
The enjoyment of the rights and freedoms set forth in this convention shall be secured on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.
So, from Article 14, it can be argued that a UK citizen is protected from being discriminated against on the basis of their "property", or, therefore, the level of their income.
The Equality Act 2010
The Equality Act 2010 was enacted to bring together all the existing laws at that time that dealt with discrimination, harassment and victimisation. It sets out the personal characteristics that are protected by law and the behaviour which is unlawful:
Chapter 1
Protected Characteristics
4 The protected characteristics
The following characteristics are protected characteristics-
age;
disability;
gender reassignment;
marriage and civil partnership;
pregnancy and maternity;
race;
religion or belief;
sex;
sexual orientation.
So, if a person is treated differently to others on the grounds of one of the above protected characteristics, they can claim discrimination.
Argument
In the case of taking a child out of school during term time in order to take a family holiday, how can a parent claim discrimination if they are then subsequently fined by the local education authority and face prosecution in the courts if they refuse to pay the fine? As outlined above, the Human Rights Act 1998 and the Equality Act 2010 safeguard UK citizens from discrimination and, using these statutes, some parents can claim that they are directly discriminated against by not being allowed to take their children on term time holidays.
Human Rights Act 1998
Prices for holidays rise dramatically during school holidays and many parents find the cost of taking their families away when schools are closed prohibitive. Below a certain level of income, the only way that these families can enjoy the luxury of time away, something that wealthier families take for granted, is to take their children out of school during term time and risk the chance of a fine or prosecution.
As indicated earlier, the Human Rights Act 1998 gives "every natural or legal person" the right to "peaceful enjoyment of his possessions", which includes his "property". Money is included in the definition of "property" and the Act allows a person to dispose of their income without interference from the state. Therefore, a parent should be able to choose what to spend their money on without fear of a local authority dictating how or on what that income should be spent. So, if a parent has a level of income such that they can only afford to pay for a family holiday during term time due to the prohibitive hike in prices when schools are shut and the local education authority forbids it, then the parent can claim abuse of their human rights:
- Under The First Protocol, Article 1, a local authority is interfering with a person's right to peaceful enjoyment of their property (money) if it dictates when a family holiday can be taken and, therefore, how a person must spend their money
- Under Article 14, by dictating when a parent can take a family holiday, a local authority is discriminating against a person by virtue of that person's property (level of income)
The Equality Act 2010
As stated above, a person can claim discrimination under the Equality Act 2010 if they are treated differently due to a protected characteristic. One of those protected characteristics is "religion or belief" which includes lack of belief in a God.
One of the statutory reasons for authorised absence is taking a child out of school in order to celebrate a religious festival of a religious body to which the parent belongs. All faiths and creeds are catered for in this reason for authorised absence apart from those who do not hold a belief in any deity. If someone is an atheist, then they do not have a set date in the calendar when they can celebrate their "belief". Therefore, if an atheist family joins a body set up to celebrate their lack of belief in a God and then wish to take time off during term time to celebrate their atheism, and the local authority forbids it, then the parent can claim discrimination under the Equality Act 2010 due to being treated differently due to their "religion or belief"; this is also protected under the Human Rights Act 1998, Article 14 (see above).
Conclusion
A parent can claim discrimination by a local authority if that parent has a level of income such that they are unable to afford to pay for a family holiday during the school holidays and the local authority fines them for taking their child out of school during term time when the cost of a family holiday is cheaper. In this case, the local authority is dictating how a parent must spend their money and is, therefore, interfering with the parent's peaceful enjoyment of their property in direct contravention of the Human rights Act 1998, The First Protocol, Article 1 and Article 14.
A parent can claim discrimination by a local authority if that parent is an atheist, belonging to a atheist body and, in taking their child out of school in order to observe that atheism, the local authority deems that absence to be unauthorised. In this case the local authority is interfering with the parent's right of "prohibition of discrimination" on the grounds of their "religion or belief" in contravention of the Equality Act 2010, Chapter 1, Protected Characteristics and the Human Rights Act, Article 14.
I am not a lawyer and do not have a law degree. However, anyone can peruse the Acts of Parliament and determine how that Act should be interpreted in a particular circumstance. Lower income families will always suffer at the hands of so-called "market forces", but when those "market forces" directly dictate that their family cannot enjoy a holiday together purely because the travel industry wants to squeeze more profit out of their customers during school holidays, then it seems that the poorer families have a legitimate claim for discrimination. I have set out above arguments for using current legislation to counter this inequality, however, it is for richer persons than I to take this argument through the courts to determine whether my arguments have foundation in law.
