West Sussex County Council v C (Rev 1)

Under Education Act 1996, section 444, “unavoidable cause” is construed strictly. It ordinarily requires an emergency or comparable event that actually prevents school attendance. A child’s wilful truancy, chaotic lifestyle or refusal to attend does not by itself satisfy the defence, even where the parent has made substantial efforts. Those efforts may be relevant to mitigation or to the separate defence of reasonable justification, but they do not establish an unavoidable cause. The two defences must be kept distinct, and unavoidable cause should be considered first. On the facts, the case was remitted with a direction to convict of the lesser offence.

The respondent was prosecuted under section 444(1A) of the Education Act 1996 after her 15-year-old daughter repeatedly failed to attend school. The magistrates accepted that the respondent knew of the non-attendance and had failed to engage properly with the educational welfare officer, but found that the child’s chaotic lifestyle was an unavoidable cause and that the respondent’s mental-health difficulties provided reasonable justification.

The local authority appealed by way of case stated. The questions were whether the finding of unavoidable cause was wrong in law, whether the respondent had failed to cause regular attendance, and whether she should have been convicted of the lesser offence under section 444(1).

1. Appeal allowed. The magistrates’ answers were wrong in law. The case was remitted with a direction to convict the respondent of the lesser offence under section 444(1).
2. Section 444 creates two alternative offences. Subsection (1) is a strict-liability offence, subject to the statutory exceptions and the defence of sickness or unavoidable cause. Subsection (1A) is more serious and additionally requires knowledge of the non-attendance and failure, without reasonable justification, to cause regular attendance.
3. “Unavoidable cause” must receive a strict interpretation. It ordinarily requires something in the nature of an emergency which actually prevents attendance. A child’s decision to leave home, refusal to attend, wilful truancy or chaotic lifestyle does not amount to an unavoidable cause. A parent’s efforts may provide mitigation, but cannot constitute a defence to subsection (1) unless the statutory test is satisfied. The court followed the approach in Jenkins v Howells [1949] 2 KB 218, Bath and North East Somerset District Council v Warman [1999] ELR 80, and London Borough of Islington v D [2011] EWHC 990 (Admin).
4. Reasonable justification and unavoidable cause are distinct. Acceptance of reasonable justification does not establish unavoidable cause. If unavoidable cause is raised, it should be considered first, because it negatives the underlying fact of regular non-attendance. Only if that defence fails should reasonable justification under subsection (1A) be considered.
5. The power under section 444(8B) should be exercised in the interests of justice where the serious offence is not made out but the lesser offence is. The circumstances justified remittal with a direction to convict.

Magistrates’ court: The respondent was acquitted after the justices found an unavoidable cause under section 444(2A) and reasonable justification under section 444(1A).

High Court (Administrative Court): On the local authority’s case-stated appeal, the court answered all three questions “yes” and remitted the matter with a direction to convict under section 444(1).