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.

 

Surrogacy: What happens if you change your mind?

Last month, Wisconsin’s Supreme Court was called upon to decide whether surrogacy agreements were enforceable contracts there.

The case concerned a commissioning mother, Monica, who had entered into a surrogacy agreement with David and Marcia.  Monica agreed to carry a child for them, after being artificially inseminated with David’s sperm. 

Each party took legal advice and a written contract was prepared.  It provided that Monica’s parental rights would end on the child’s birth. 

Monica subsequently changed her mind, and litigation followed.  David sought an order for specific performance of the agreement – in short, requiring Monica to do what she had agreed to do.

David’s application initially failed.  The Judge decided the agreement was null and void.  This was because it did not comply with local requirements for the voluntary termination of Monica’s parental rights.

At a trial in 2011 to determine the child's best interests – he was by then three years old - a Judge ordered that Monica should have custody, but that David should have access.   That access was to be for six hours every other weekend for two years, and then for the whole of every other weekend after that.

David and Marcia appealed.

Monica tried to argue that the whole contract should be void because it went against public policy.  By majority decision, the Supreme Court disagreed. 

It found that the surrogacy contract must be considered in the judge's determination of custody and access, unless its terms were contrary to the child's best interests.  To that extent, the surrogacy agreement was an enforceable contract, save for the provision terminating Monica’s parental rights. 

Of Monica’s arguments to seek to avoid the contract, the court’s majority decision observed: 

"There are no facts in the record to indicate, nor does Monica argue, that the contract should be void or voidable due to misrepresentation, mistake, duress, undue influence or incapacity."

The majority Judgment (given by Justice Annette Ziegler) continued:

"Enforcement of surrogacy agreements promotes stability and permanence in family relationships because it allows the intended parents to plan for the arrival of their child, reinforces the expectations of all parties to the agreement, and reduces contentious litigation that could drag on for the first several years of the child's life".

Chief Justice Shirley Abrahamson agreed the first instance Judge had erred by ignoring the contract.  However, she disagreed with the majority’s conclusion that such contracts should be enforced "unless contrary to the best interests the child."  She wrote:

"The majority opinion has no hesitancy in declaring that public policy supports the enforcement of such contracts. Yet the validity of surrogacy contracts, in whole or in part, is at this very time being debated across the globe."

The decision was especially significant, because Wisconsin has no statutes or case law that directly addresses enforceability of surrogacy arrangements.  The court called on the State government to take the lead in enacting legislation to regulate surrogacy and surrogacy agreements.

Back on this side of the globe, surrogacy agreements are not enforceable as contracts in the UK.  Commissioning parents who enter into a surrogacy arrangement may seek a Parental Order.  The effect of such an order is to transfer parent rights and entitlements from the surrogate mother (and any other legal parent, which may include her partner in some circumstances) to the commissioning parents.

But one of the prerequisites for a Parental Order is that the surrogate mother (and any other legal parent) gives consent freely and with full understanding of the process and its implication.  The consent must be unconditional.  The surrogate mother is entitled to change her mind, and consent given before the child is at least six weeks old is not valid. 

What happens here if the surrogate genuinely changes her mind?  This was an issue considered by our High Court in London about two years ago.  Mr Justice Baker had to settle arrangements for a baby girl.  She had been conceived following a surrogacy arrangement.  The surrogate mother changed her mind when the child was seven days old, and wished to keep the child.

The Judge decided that the baby should continue to live with the surrogate mother and have contact – which she had already been having – with the commissioning father.  That, the Judge determined, was the arrangement that was in her best interests, and the only issue the court had to resolve.  Putting the enquiry in another way, in which home was she more likely to mature into a happy and balanced adult and to achieve her fullest potential as a human? 

Ultimately, the Judge reached his conclusion based on his assessment of the capacities of the various adults to meet the child’s needs.  He decided that to remove the child from the surrogate mother would cause emotional harm.  The Judge believed the commissioning father lacked insight into the importance of the child’s relationship with her. 

Of the change of heart by the surrogate mother, Mr Justice Baker observed that in some cases a promise to give up the baby might indicate a lack of commitment to the child, calling into question the mother’s capacity to care.  However, in the circumstances of this case, the court should not attach undue weight to the surrogate mother’s original promise to give up the baby.

Statistically, changes of heart by the surrogate or commissioning parents are rare.  Surrogacy UK estimates that only about 2% of surrogacy arrangements break down.  

 

What the Wisconsin case and the decision of Mr Justice Baker here in England each demonstrate is the need, in that small cohort of cases where the arrangement breaks down, for urgent legal advice from an expert in surrogacy.