London Borough of Bromley v C

For an offence under section 444(1) of the Education Act 1996, the question is whether the child attended school regularly. The offence is one of strict liability. The court must consider all relevant evidence, including the school attendance record, which is admissible but not conclusive. Unauthorised absence is not automatically determinative, but regular attendance is a question of fact and degree. Leave means leave granted by the school, not leave which a magistrates’ court considers justified. Absence caused by sickness or another unavoidable cause is excluded by section 444(3). A parent’s reasonable justification is relevant to the separate offence under section 444(1A), not to the section 444(1) offence.

The London Borough of Bromley appealed by way of case stated from the magistrates’ decision acquitting a parent charged under section 444(1) of the Education Act 1996. Three children had substantial recorded absences, including two unauthorised holidays. The magistrates accepted explanations for many absences and concluded that the children had attended regularly.

The appeal concerned whether the magistrates could look beyond the school’s attendance record, whether unauthorised holidays necessarily established irregular attendance, and the possible relevance of the local education authority’s transport and schooling duties under section 444(4).

1. Appeal allowed. The acquittal was quashed and the matter remitted to the magistrates with a direction to convict. The court expressed the view that an absolute discharge was the appropriate disposal in the particular circumstances.
2. The school attendance certificate was admissible under section 566 of the Education Act 1996, but was not conclusive. The magistrates were entitled, and required, to consider all relevant evidence, including the parent’s explanations for recorded absences.
3. For an offence under section 444(1), the issue is whether the child attended regularly. That offence is one of strict liability. The questions of the parent’s knowledge and reasonable justification arise under the separate offence in section 444(1A).
4. “Leave” for section 444(3)(a) means leave granted by the school. It was not for the magistrates to decide whether an unauthorised holiday ought to have been justified. Absence caused by sickness or another unavoidable cause may be excluded under section 444(3).
5. An unauthorised holiday does not automatically establish irregular attendance. The question remains one of fact and degree. However, 18 absences out of 114 possible attendances, amounting to about 16 per cent, meant that only one conclusion was reasonably open: the children had not attended regularly.
6. The questions concerning section 444(4) were not answered in the abstract because the magistrates had not relied on that provision and had not resolved the relevant factual findings. The court also emphasised the need for magistrates to distinguish the charge alleged, identify material findings, and explain the reasoning linking those findings to the statutory test.

• High Court (Administrative Court): The appeal by way of case stated from the Bromley Magistrates’ acquittal was allowed. The acquittal was quashed and the case remitted with a direction to convict.