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.

 

“A fast car and an open road” – non-disclosers and adverse inferences

Today's blog comes from guestblogger Margaret Heathcote.  Follow Margaret on Twitter @Auntie_Ag

The “Scot Young Show” has returned to Mr Justice Moor’s court at the Royal Courts of Justice this week for its possible finale, the substantive hearing in a financial remedy application first made four years ago by his estranged wife, Michelle.  Such is the media and public interest in this long-running saga that reporting restrictions have been lifted.  No doubt we will read all about it in the coming days and weeks in the Metro on the way to work, or catch-up online over lunch.

The bare facts are not that unusual:  the Mr and Mrs Young (now aged 51 and 48, respectively) married in 1995.  They separated in 2006.  They have two daughters.  There appears to be no doubt that telecoms and property tycoon Mr Young was a man of (as it is always so nicely understated) “considerable wealth”, that wealth running to many, many millions of pounds.  By way of illustration, it is said he gave Mrs Young a £1 million Graff diamond ring for her 40^th birthday – by my calculation only a matter of months before they separated.   The court must have been reasonably confident that Mr Young had substantial resources as he was ordered to pay interim maintenance to his wife for her and their daughters’ of £27,500 per month – a whopping £330,000 net per year. 

 

Unfortunately for Mrs Young, her husband did not comply with this order.  He says that the days of mansions, yachts, and diamonds are now long gone and that almost immediately after he and Michelle separated, he lost all his money in a property venture in Moscow. 

I have not had the benefit (that it seems many legal practitioners in and around London have had) of seeing Mr Young’s Form E; but I would hazard a guess from what has been reported in the press that it paints a picture of a man with no assets at all, and probably considerable debts.  What is known is Mr Young has failed to produce the documentation that was ordered to produce to prove that his Form E account was true.  So dissatisfied was Mr Justice Moor with Mr Young’s conduct that he took the unusual step of committing him to prison for contempt.  It is rumoured that Mr Young came to court prepared to take the long walk, carrying his toothbrush and other essentials in a Louis Vuitton carry-on case.

Mrs Young, like so many ladies before her who have found themselves under the media spotlight in divorce proceedings, is always referred to as a “former model”.  She says that her husband’s pleas of poverty are a pack of lies, that he has spitefully pursued a deliberate and cynical campaign to hide his assets from her and the Court and that his failure to comply with the interim maintenance order has left her penniless, dependent on Housing Benefit and sharing a bed with her younger daughter.  Like Blanche Dubois before her, she has been forced to depend upon the kindness of strangers, or, in her case, good friends (such as Sir Philip Green) to make ends meet.

 

Undoubtedly her husband’s conduct of the financial remedy proceedings has left Mrs Young in a very different position than she was in at the time of their separation.  She has, perhaps understandably, left no stone unturned in trying to demonstrate her husband has been lying and is, in fact, well able to meet her financial claims, even if generously interpreted. 

We will see soon whether she has been successful, or if she will be forced to fall back upon the adverse inferences that Mr Justice Moor may very well draw from Mr Young’s conduct.  Media reports tell us that Michelle would apparently now be prepared to settle for a capital sum of £300 million. 

The last high profile divorce case in which the Court (and the media) took a comparable interest was that of Mr and Mrs Prest, culminating in the recent litigation between Mrs Prest and the Petrodel group of companies in the Supreme Court in June of this year. 

That case again concerned a long marriage between parties in their fifties, who had children together.  Mr Prest, like Mr Young, was a man of “considerable wealth” who maintained in the face of his wife’s claims on divorce that it was all smoke and mirrors, and that the fabulously wealthy lifestyle they had enjoyed (and which he still appeared to enjoy) was an illusion.  Cometh the hour, he said, he was in reality a man of very considerable debts if not actually of straw. 

Mrs Prest did not believe him, and nor did Mr Justice MacFarlane (as he then was).  Mrs Prest received an award of £17 million as against her husband’s wealth, estimated by the Judge to be in the region of £40 million. 

That decision was appealed, on the basis that the properties which Mr Prest was found by Mr Justice MacFarlane to effectively own (and, crucially, the sale of which was required to fund the award to Mrs Prest) were not in fact properties in which he was (in the words of the legislation) “entitled, either in possession or reversion”.  Rather, those properties belonged to a series of properly constituted and legitimate companies, which could not be subject to the Order made. 

 

The Court of Appeal agreed with Mr Prest and was fairly damning in its assessment of the workings of the Family Division of the High Court and its general lack of intellectual rigour. 

Mrs Prest appealed to the Supreme Court, which found a way of both agreeing with the Court of Appeal’s construction of the statute whilst also finding that Mrs Prest should receive her original award.  A “fudge” some would say; others, “justice in action”.  Accordingly, Mrs Prest should (with a good following wind) one day actually receive the award to which she was found to be entitled.

One may wonder why these (and other) men strive so very, very hard to deny their wives and children the financial security and support they enjoyed during their marriages.  Perhaps, however, one does not have to wonder for very long.

At the heart of this cohort of cases is the failure of (at least) one party to make full and frank disclosure of their financial assets and affairs, with a view to undermining the financial claims of the other.  Neither Messrs Prest or Young has (so far as I am aware) made any great fist at creating a convincing account of their financial collapse, but has rather adopted a stance as far as their wives and the Courts are concerned of:  “Here is my story; catch me [out] if you can!”

I am extremely indebted to the very distinguished panel of the recent London Region Resolution debate (speaking to the motion “The decision in Prest –v- Petrodel doesn’t change anything”) on 24 October 2013 comprising:  Jeremy Posnansky QC of Farrer & Co LLP (acting as solicitor for Mrs Prest) and Mr Stephen Trowell of 1 Hare Court (Junior Counsel for Mrs Prest), and Mr Tim Amos QC and Amy Kisser of QEB (Leading and Junior Counsel for the Petrodel Group of companies in the Supreme Court) for clarifying the facts of the latter case and (perhaps more importantly) bringing together from it lessons to be learned for the future.

All presentations were both enlightening and (essential for anything which has to hold an audience’s attention after work for more than five minutes at a time) entertaining; rather more so, I suspect, than they had been in the Supreme Court.  However, their grasp not only of their cases but of the niceties of the legal debate was illuminating.

For me, the lessons to take away were the following:

1.            The safest defence against a Court making adverse inferences in relation to the ownership of assets is to make full disclosure and to tell the truth. 

Well, I’ve given that advice over many years now, with varying measures of success.

2.            Absent full disclosure or truth telling, the Court can and will draw adverse inferences about the ownership of assets.

Yup, that happens! 

3.            Such adverse inferences will be drawn in favour of the more truthful or needy party (usually the wife).

Again, yup!

(And perhaps most importantly)

4.            The Court will, whenever possible, ensure that the interests of justice are served and will find a way to ensure that in the family courts at least, “shits lose”.

Well, that’s a relief!  Business as usual after all.

I would presume to predict that Mr Justice Moor is likely to draw adverse inferences from the failure of Mr Young to make full and frank disclosure of his financial resources, or to comply with that duty to the court in its discharge of an inquisitorial role in pursuing that disclosure.  I presume also to predict that it is likely that those adverse inferences will be drawn in Mrs Young’s favour. 

 

However, I would also presume to predict that, even if an award is in due course made in Mrs Young’s favour, there may still be (as there was for Mrs Prest) a long road ahead of her before she sees any money.