Term-Time Family Holidays - The Reprise

One of my early blogs (over a year ago now – yikes!!!) looked at the phenomenon of term-time family holidays.  I looked at the legal framework and the circumstances in which headteachers could authorise school absences so that families could take holidays during the school term; invariably to keep costs down. 

 

That has proven to be my most popular blog to date, the subject matter being of interest to all working families with children still of school age.

 

In this follow-up piece, I look at changes over the last year to the legal landscape so far as term-time holidays are concerned.  I look at how schools are applying rules introduced last autumn, and moves afoot in Parliament to look at this issue afresh. 

 

What’s Changed?

The baseline legal requirements are the same as a year ago.  Parents have a legal obligation to ensure their children receive what is described as a “suitable full-time education”.  A child must be educated when he or she is of “compulsory school age”:  currently, this means between the ages of 5 and 17 (the upper age will increase to 18 from next year).

 

Headteachers were entitled under the then rules to authorise pupils to be absent for up to ten days each year (and in rare situations, for longer periods) in “special circumstances”.  This was intended to cover life’s unexpected eventualities that might require a child to be away:  illness, bereavement or inability to get to school due to bad weather.  In addition, many headteachers were approving absences under this power so that children could go on a family holiday during the school term. 

 

It was this latter accommodation by headteachers that lead to a legal change on 1 September 2013, with the entry into force of the Education (Pupil Registration) (England) (Amendment) Regulations 2013.  These Regulations do away with the ten-day threshold, as well as the qualifier “special circumstances”.  Instead, headteachers now may only grant leaves of absence in “exceptional circumstances”.

 

I’ll come on shortly to look at whether in reality there is any difference between circumstances that are “special” as opposed to “exceptional”.

 

It’s worth noting that this legislative change was snuck in through the back door.  The Regulations were put before Parliament on 4 April 2013.  There was no request to debate them.  They passed under a negative resolution – which means that they would pass so long as Parliament did not vote against them.  Parliament would have had an opportunity to discuss the Regulations, had anyone tabled an early-day motion, but nobody did.  There was no discussion and the changes wrought by the Regulations became law by stealth.

 

The Regulations also amend the procedures for issuing penalty notices to each parent who fails to ensure their child’s regular attendance at school.  The fine is £60 if paid within 21 days; or £120 if paid within 28 days.  These time periods for payment are shorter than previously.  As before, prosecutions may follow if payment is not made (together with other measures outlined in my earlier blog). 

 

Why is this an issue? 

Primarily due to cost.    Prices sky-rocket during the school holiday periods.  They did a year ago.  They did apparently in the 1960s, when a motion was introduced in the House of Commons expressed thus:  “That this House, recognising the need to extend and adjust the holiday period so as to relieve congestion at the peak period, asks Her Majesty’s Government to set up a committee to examine the question urgently with special reference to the educational, tourist trade and transport interests concerned, and the problem of summer time, with the power to recommend early action.”

 

And nothing has changed…  A Telegraph Travel price checking survey conducted in February 2014 confirmed that parents pay on average between 30% and 40% more for a week’s break during the school holiday period.  A week’s break could be up to 62% more expensive in August than during term time in July.

 

Beyond cost, the issue affects a smaller cohort of families where parents cannot readily arrange their time off so it falls in step with school holidays.  For example, members of the armed forces and those with particularly specialist professions whose absence would leave vital facilities inadequately staffed.

 

What’s happening in practice? 

This seems to differ from school to school.  Some appear to be approaching term-time absences to accommodate family holidays in the same way as they were prior to September 2013, on a case-by-case basis.  After all, all that has really changed is that the test is now one of “exceptional” circumstances rather than “special” ones.  To many, this might look like a matter of semantics.

 

But others appear much more anxious.  In a recent debate by the Commons Backbench Committee (more of which in a moment), an example was cited of a headteacher who wrote in the following terms:  “As from 1^st September 2013 any holidays during term time will not be authorised, unless there are exceptional circumstances, for which there are set criteria.  This is Government policy…”  This was in response, which was refused, to a request to take a child on holiday for a week, following her diagnosis with a brain tumour. 

 

The letter from the headteacher in this particular example cited reads into the new law provisions that are not there.  There are not set criteria for authorising term-time holiday absences.  That some headteachers are proceeding under the misapprehension that there are is troubling. 

 

What’s the solution?

According to Education Secretary Michael Gove, the answer is to stagger term dates.  The logic goes that, if different schools have different term dates, the logjam of demand that causes prices to skyrocket will not occur.  Said Gove last month, “There's no need to sacrifice your child's education in order to secure a cheaper holiday,” he said. “Schools now have the freedom to change their term dates in order to allow students and families the opportunity to go on holiday at different times.”  The Education Secretary’s proposal has the support of two of the country's biggest travel associations, ABTA and the Association of Independent Tour Operators (AITO). 

 

Some parents are adopting a more proactive response.  A petition started by Donna Thresher, an Essex mother, in March 2013 propounds that: “All children who have a good attendance record should be allowed the opportunity to enjoy quality time with their parents on an annual holiday of up to 10 days once per year.”

 

It goes on:  “Good parents or parents that work full time should not be criminalised for wanting to enjoy an affordable annual family holiday.”

 

That petition began life prior to the legislative change in September 2013.  Said Ms Thresher after the new regulations came into force:  “The original petition still stands in its own right but we do feel that the change in legislation has impacted the costs even further”.

 

That petition attracted some 170,000 signatures, significantly more than the 100,000 required to be considered for a debate under the Government’s e-petitions initiative.

 

Ms Thresher is not alone.  A group called “Parents Want a Say” has a number of e-petitions on its website relating to holidays and term-time absences.

 

And so it was that the Commons Backbench Committee came to debate the issue on 24 February 2014.  Both the transcript and a video of the debate are available, and make for engaging reading and viewing, respectively.  There appears to be a degree of appetite on the part of many MPs to ensure that the issue is managed with an element of common sense and that headteachers (rather than Parliament) are the final arbiters when it comes to authorising – or not – holidays during school term. 

 

Particularly outspoken on point is Liberal Democrat MP, John Hemming, who said there had not been enough debate on what was a "big issue".

 

"The problem is half-terms all tend to be the same, leading to a very big demand for holidays all at the same time,” he said. “And reducing the flexibility of people to take their children out of school adds to that."

 

What emerges from the debate, and whether any further legislative amendment is tabled, remains to be seen…

 

Practical Tips

I offered a series of tips in my earlier blog on topic.  To those, I add these three:

 

1. Contact your school now to ascertain how it approaches the changes introduced in September 2013 to the question of term-time absences.  Is there a policy ban on any term-time holidays?  Does the school have a view about what might comprise “exceptional circumstances”?
    
2. Be vocal!  Many parents have – as the recent Commons Backbench Committee debate shows – already contacted their MPs to highlight how their particular circumstances bring them into conflict with the perception by some headteachers that there is a blanket-ban on term-time absences.  As the petitions of Ms Thresher et al show, a groundswell of support can make politicians sit up and take notice.  And with next year being an election year, there might just be a willingness to be more receptive to this issue than otherwise.  Sign the online petitions.  Write to your MP.  Share your particular experiences.
    
3. Shop around and be flexible about where you might want to go.  The Telegraph Travel survey showed that, when different destinations were chosen, the price rises during school holiday periods were far less pronounced.

 

Contact after Adoption - Is it still the exception?

A Judge in the High Court has taken the unusual step of making an order providing for an adopted child to have a continuing relationship with his birth family.

The child – referred to as P-M in the Judgment – was seven.  He had lived with his foster mother since he was four months old.  She applied for an adoption order in relation to him. 

Before the court at the same time as the adoption application was an application by P-M's maternal grandmother for a contact order.  P-M’s half brother and sister were staying with her.  She had been having contact once a month with P-M by agreement.  She wanted a order confirming that that arrangement would continue.  The application was supported by P-M’s own legal team.  It was opposed by the local authority, who expressed concern that too much contact would blur boundaries for P-M.

The Judge, Lord Justice Ryder (sitting as an additional Judge of the High Court) heard evidence from all of the relevant players.  He found that the foster mother had provided P-M with excellent care.  He observed that a contact order in favour of P-M’s grandmother could generate an anxiety of its own that could be antithetic to the hierarchy of needs which were the very reason for an adoption order.  He considered that, despite P-M's relationships with his maternal family being important, they must take second place to the primary relationship between him and his foster mother. 

However, ultimately he considered that contact was in the child’s interests and was necessary for his welfare to be safeguarded throughout his life.  He made an adoption order in favour of the foster mother and an order for limited contact.

The law and procedure on adoption is found mainly in the Adoption and Children 2002.  That Act imposes a duty on the court before making an adoption order to consider whether there should be arrangements for allowing any person to have contact with the child.  Courts are usually reluctant to make orders for post-adoption contact in the face of reasonable opposition from adopters.  Whilst relations with birth family members are important, the critical and most significant consideration is to ensure that the adoptive placement is as secure, stable and happy as possible.  For that reason, it is extremely unusual for a contact order to be imposed if the adoptive parent or parents oppose it. 

This is also consistent with the theory of adoption.  A child who is adopted legally becomes a member of the new family.  He or she stops legally being a member of his or her birth family.  The adopter/s obtain parental responsibility for the child.  Any person who had parental responsibility prior to the adoption order being made automatically loses it.  So, for all intents, the successful adoption process leads to the child becoming a permanent and full member of the new family. 

But for older children, who know and have important emotional ties with birth family members, it might well be in their interests for contact to continue post-adoption.  That was the conclusion Lord Justice Ryder reached here.  He decided that P-M's welfare throughout his life required the maintenance of a relationship with his maternal grandmother and sister through whom there would be a relationship with his extended birth family.  The contact should contribute to the child’s reassurance and stability - his feeling of identity - without creating a risk of disruption.  The key issue was which arrangement was best able to provide for P-M’s needs having regard to the effect on him during his life of ceasing to be a member of his birth family.

The Judge was keen to emphasise, however, that whilst on facts of the case adoption was not antagonistic to contact, if the court had to choose between adoption and contact, it would unhesitatingly favour adoption.

Going underground – When parents defy the court process

A few weeks ago, I wrote about a US international custody dispute.  That case involved a Virginian Amish-Mennonite pastor, who was sent to gaol for his part in abetting a parental child abduction.

The phenomenon is not unique to the US.  According to an article in Australia’s Courier-Mail on Tuesday, Church and domestic violence support groups there are actively helping parents breach court orders and go on the run with their children.  Those groups, the article reported, helped
recalcitrant parents operate under the radar and evade detection by the authorities.

One parent claimed a domestic violence group and others had helped a former spouse hide two children from the courts and police.  When six officers finally found the children - who had been missing for a month - they had been given new SIM cards for their phones and access to a number of different computers.  The parent who had illegally taken the children had limited funds at the time, so the implication was others were underwriting her financially.

The problems identified resonate with those we face here, too.  I’ve had a number of cases over the years which have required steps to be taken to find children taken by a parent in defiance of court orders.  For the most part, those steps have been successful.  Our courts are extremely sympathetic to requests for the disclosure of information to help locate missing children.  Any lawyer experienced in managing child abduction cases will know the classes of information that best pinpoint where and how parents seeking to evade detection are operating.

But I have had a small cohort of cases where even the most intensive efforts to find a missing child have not been successful.  Each of those has had the fingerprints on it of a network of supporters conspiring to help the abducting parent defy the court process.  Often family members are implicated, and in some instances punished, for their support – however well-intentioned – in helping a parent avoid detection.  This third party support is virtually inevitable:  it is neither easy nor cheap to run one’s life without leaving an information footprint of some description that can be used in the detection process.  These have been some of the most difficult and sad cases of my career.

 

Family law experts in Australia claim the problem there is compounded by the justice system being under-resourced.  The Courier-Mail article features comment from several sources to the effect that the issue is partly on account of courts not properly managing, and taking into account in their decisions, factors such as domestic violence or abuse.  Thus, it is claimed, parents have to take the law into their own hands. 

If those working in the Australian Family Justice System need an illustration of how underfunding fails children and families, they should have a word with me.  With the decimation of our Family Justice budget (with further swingeing cuts promised), and the all-but-in-name extinction of Legal Aid, most lawyers here agree that the service we are able to offer some of the most vulnerable is no longer fit for purpose. 

Rather pessimistically, I suspect we’ll see more and more cases of the type described above.  With parents increasingly denied effective access the court system, of course there will be the temptation to take the law into their own hands and go underground.  Some will do so with good reason, others will do so out of malice or spite.  If in the latter categories, under-resourcing represents a total failure of the left-behind parent. 

 

On either side of the equation, the individuals who will be most let-down will be the children affected. 

But we’re all in this together…

I’d like to hear what others think.  Can a parent ever be justified in going on the run with a child in defiance of court orders?  If yes, in what circumstances?  Likewise, is it ever justified for family members, churches, support groups and others to help parents in these situations evade detection and due process?  I’d also love to hear from parents who, having been through the court process and obtained an order, have nevertheless been denied a relationship with their child because the other parent has gone underground.