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.

 

French authorities failed British mother in Cross-Channel custody dispute

The European Court of Human Rights found today that the French authorities had failed to have sufficient respect for the family life of a British mother and her two children.

The case, Raw and Others –v- France (Application No. 10131/11), concerned steps taken (or not taken) by agencies of the French State to give effect to decisions about the return of the children to their mother’s care. 

Background

The mother, Samantha, was a British national.  She had two children – Austin and Dylan – by her former partner:  they were born in 1995 and 1997, respectively.

The parents separated in 1999.  Samantha then left France (where the family were living) in 2001 and travelled to the UK. 



Samantha Raw



A French Judge dealing with the family’s circumstances decided that parental authority should be exercised jointly by both Samantha and the father.  Further, the French court decided that Dylan and Austin should live with Samantha in England.  A regime of contact (access) by the children to the father in France was defined.



It was under that contact regime that the children went to France in December 2008 to stay with the father.  Whilst there, the father presented the children at a local police station.  He complained the children were suffering in Samantha’s care.  He said they feared returning to England, and had recounted to him instances of ill-treatment.  According to the father, Dylan had threatened to harm himself or attack Samantha if he were forced to go home.

      

Court Proceedings

The father started proceedings first in time.  Dealing with his application, a French Judge made an interim order, in January 2009, in favour of the father providing for Dylan and Austin to live with him.  He heard from the children and said the unhappiness they expressed justified the decision.  The French Judge also commissioned a series of enquiries intended, amongst other things, to establish the parenting abilities of each parent.  A report was prepared by a psychologist and a welfare assistant, which recommended that Dylan and Austin be looked after by the father.

London's High Court of Justice

This side of the Channel, Samantha attended before the High Court in London in January 2009.  The English court determined that the father had wrongfully retained Dylan and Austin in France.  It directed the father to return them to Samantha’s care. 

Armed with that decision, Samantha made an outgoing request under the 1980 Hague Convention on the Civil Aspects of International Child Abduction (“the Hague Abduction Convention”).  That Convention, which is supplemented within the EU by Council Regulation (EC) No 2201/2003 of 27 November 2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility (“Brussels II revised”), confirms that the default response to an intercountry child abduction is the return of the child/ren to the country where they ordinarily live.  Only in unusual cases should that default response be disengaged. 

Back in France, in early February 2009 a Judge considered Samantha’s application under the Hague Abduction Convention.  That Judge decided that the default response was the right one, and that Dylan and Austin should go home to their mother. 

Austin and Dylan

But nothing then happened, and in March 2009 Samantha complained about the failure on the part of the French authorities to return the children.

The father sought to challenge the decision that the children must return home, but his appeal was refused in April 2009.  The French Appeal Court found that the children’s objections to going back to the UK were not sufficient to prevent their return.

Enforcement (or not)

Over a further month passed before a meeting was arranged between Dylan and Austin and Samantha, in early June 2009.  The children reacted in a very hostile way to their mother:  Dylan attacked her physically and Austin was shouting and crying and refused to meet with her. 

Not much seems to have been done then for months and months, and in October 2009 Samantha’s lawyer complained about the French authorities’ refusal effectively to bring about the children’s return home.

The Public Prosecutor in France finally met with Samantha in April 2010 (so, for those not following the chronology as closely as they might, A YEAR after the decision that the children must be returned).  That meeting was to “take stock” of the situation.  The Prosecutor apparently informed Samantha that, although the Judgment ought to be executed, he would not order its enforcement, considering that, “given the children’s ages and personalities, it would not be apt to implement it”.

Communications between officials in the UK and France continued into Summer 2010, with the former confirming Samantha was available to come to France to collect her children.  However, nothing further was done on the Continent.

In December 2010, Austin secretly contacted Samantha and asked her to come to collect him, which she did.  She returned with Austin to the UK.  Dylan, however, remained with the father.

D turned sixteen in January 2011, which meant he could no longer be subject to an order under the Hague Abduction Convention (which only applies to children under the age of sixteen).  He continues to live with his father in France.

Samantha’s Complaint to the European Court

Arising from the way that the French authorities had responded to the children’s predicament, Samantha complained that her rights under the European Convention on Human Rights (“ECHR”) had been breached.

In particular, she asserted her rights under Article 8.

The original text of the Human Rights Convention

Article 8 is headed “Right to respect for private and family life”, and reads as follows:

“1.       Everyone has the right to respect for his private and family life, his home and his correspondence.

“2.       There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”

Samantha’s application was lodged in January 2011.

The European Court’s Decision

In ruling on Samantha’s application, the European Court reiterated that the ECHR must be applied in accordance with principles of international law.  With regard to the positive obligations imposed by Article 8 in reuniting a parent with his or her children, these had to be interpreted in the light of the Hague Abduction Convention and the UN Convention on the Rights of the Child.  These instruments emphasised the paramount nature of the child’s interests.

The court commended how rapidly the French authorities reacted once the procedure under the Hague Abduction Convention had been started.  It also noted that the French authorities had used various methods to convince the father to cooperate in organising the children’s return to the UK.  As the meeting between Dylan and A and their mother in June 2009 had failed so completely, and had deeply affected the children, the court considered it understandable that the French authorities had decided that, as things stood, a return to Samantha in the UK could not take place.

The European Court noted that the French authorities had nonetheless pursued efforts, in collaboration with agencies in the UK, to bring about the return.  So, an assurance was forthcoming that the children would not be handed over to their mother on return and would not have contact with her.  The assurances continued that the father could remain with the children pending a decision locally on residence.

However, then the French responses to the situation became less laudable.  The authorities there, the European Court noted, gradually reduced their activity.  Thus, no steps likely to implement the children’s return were taken between the autumn of 2009 and April 2010.  Even then, the extent of the French authorities’ action was to invite the father to make contact for the purpose of arranging a meeting.  He did not respond.  It did not appear that the authorities took any significant steps after that date.

The European Court in Strasbourg, France

The court was not critical of the French authorities’ decision not to resort to forcible execution of the children’s return, and not to enlist the police to help bring that return about.  However, it considered that coercive measures could and should have been taken against the father.  In not taking those coercive measures, the French authorities had been remiss.

Of the children’s views, the court recognised that the difficulties encountered arose from the attitude of the children themselves.  They had clearly stated their refusal to return to Samantha in the UK.  The European Court considered, however, that that attitude was not necessarily immutable.  That this was so was shown by Austin’s decision to return home to live with Samantha.  The court further observed that, although the children’s opinions had to be taken into account when applying the Hague Abduction Convention and Brussels II revised, their objections were not necessarily sufficient to prevent return.

A European Court courtroom

The court concluded that the French authorities had not taken all of the measures that they could reasonably have taken to bring about Dylan’s and Austin’s return to the UK.  By 5 votes to 2, the court held that there had been a violation of Article 8.

France was ordered to pay €5,000 by way of non-pecuniary damage and €5,500 towards costs and expenses.

The decision is not yet final.  Within three months, any party may request the referral of the case to the Grand Chamber of the Court.  If that is done, a panel of five Judges will consider whether the case needs further examination.