Term-Time Family Holidays

Introduction

Every working parent knows this story.  Holiday prices skyrocket during high season – in other words, the school holidays!  Flights and accommodation can be up to twice as expensive as during the school term.  So, the very time when children are most able to go on a family holiday is the time one is least affordable.  Many parents find themselves having to overlap the family holiday with part of the school term.  Otherwise, there would be no prospect of a family holiday at all.  And the issue is all the more profound for children of separated parents, already under financial strain to run two homes and fund two family holidays, instead of one.

A survey of 2,000 parents conducted by a travel insurance firm in 2012 revealed the following about term-time holidays:

·                  55% of respondents had taken a child on holiday during the school-term;

·                  20% had sought permission for a term-time absence, which had been refused;

·                  12% had lied to take their child out of school for a term-time holiday.  The most common excuses deployed were illness, visiting sick relatives and attending a family wedding;

·                  57% of respondents took their children out of school for a term-time holiday because it was cheaper;

·                  32% were unable to afford a family vacation during the school holidays;

·                  26% said they, or their partner, could not get time off work during school holidays;

·                  43% would take their child out of class for a week for a term-time holiday.

The Legal Framework

What is the legal position?  Well, 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”.  This means between the ages of 5 and 17.  From 2015, compulsory school age will be expanded to include children between 5 and 18 (under the Education and Skills Act 2008).

Parents of a child of compulsory school age must register him or her for school (or else make arrangements for home-schooling).  Once registered, the parents have a legal responsibility to make sure the child actually attends school.  If there are truancy issues, the school and the Education Welfare Service (EWS) will provide support initially to address those. 

If truancy continues, the approach may become more punitive.  Parents may be issued with a Penalty Notice for unauthorised absences.  A Penalty Notice may be issued by the headteacher, the police or the Local Authority.  The fine is presently £60 if paid within 28 days, and £120 if paid within 42 days.  Parents who do not pay in time may be prosecuted. 

Other more serious measures include a School Attendance Order, an Education Supervision Order; and / or court prosecution.  The Department for Education (DfE) has published guidance on the support and sanctions available to reinforce the parental obligation to ensure school attendance.   

  

Authorised Absences

Headteachers are entitled to authorise pupils to be absent for up to ten days each year (and in rare situations, for longer periods).  This is intended to cover life’s unexpected eventualities that may result in a child being away:  illness, bereavement or inability to get to school due to bad weather.

However, many headteachers were and are approving absences under this power so that children could go on a family holiday.  This so incensed the Education Secretary that, last February, he announced a proposal to abolish the right of headteachers to authorise absences at all.  A spokesperson at the DfE was quoted as thus:

“Any time out of school has the potential to damage a child’s education.  That is why the government will end the distinction between authorised and unauthorised absence.  This is part of the government’s wider commitment to bring down truancy levels in our schools.  There will be stricter penalties for parents and schools.”

The DfE’s stance appears in the meantime to have mellowed.  It maintains that headteachers are not entitled to authorise absences for holidays during term-time.   However, there are no current plans to introduce a blanket-ban on headteachers approving term-time absences. 

The Schools’ Approach

Despite the government’s hard-line approach, it seems that some headteachers are adopting a more pragmatic and realistic stance.  This is borne out by the anecdotal experiences of our clients, by statistics and by local policies on term-time holidays.

Looking at the statistics, in Spring 2012, 25,525 half-days in primary school were missed due to authorised holidays (11.5% of all primary absences).  In secondary schools, the figure was 7,521 half-days for the same period (3.2% of all secondary absences). 

Exact polices differ from region-to-region, and from school-to-school.  Some examples of this variance include the following: 

·                   Melinda Tilley, Oxfordshire County Council Education Cabinet Minister (quoted in September 2012 in the Oxford Mail), says whether headteachers approve term-time holidays “… totally depends on what they’re doing with those days that they aren’t at school.

“If a child is going with its (sic) mum and dad to see his or her grandparents, that’s educational in a way and certainly something that’s good for the child.  It is so much cheaper to go on holiday during term-time and I think we should be tackling it from the other end because holidays, flights and everything else are way overpriced in school holidays.”

·                   the EWS for Shropshire Council has produced a leaflet highlighting the impact on a child’s education of absences during the school term.  It is clearly intended to discourage parents from arranging holidays during term-time. 

·                   Devon County Council has produced a form for parents designed to request a leave of absence during the school term, to include for a term-time holiday;

·                   Cambridgeshire County Council’s policy discourages parents from arranging family holidays during term-time.  It says absences will be authorised only in exceptional circumstances.  A holiday that is a unique, one-off never-to-be-repeated occasion which can only take place at the time requested might be exceptional.  Permission is likely to be refused if the reason given is that the holiday is cheaper in term-time.

These are just a random selection of guidelines from around the country.  Many are available online.  The common themes emerging are these:  term-time absences are generally discouraged; ultimately, the headteacher is entitled to exercise discretion to approve an absence of up to ten days; factors a headteacher might take into account when considering whether to approve a term-time absence include: 

o                    the child’s previous attendance history;

o                    the child’s age;

o                    the stage of the child’s education

o                    the time of year (does it clash with SATS, exams, etc?), and

o                    the nature of the trip (how is it exception?).

  

School Work and Catching-Up

There is no legal obligation on schools to set work for children absent during term-time.  The approach to this issue, as with authorising absences in the first place, varies from region-to-region.

For example, the East Riding of Yorkshire Council puts the obligation firmly on parents in its policy.  It is the parents who must, if term-time absence is authorised, ensure their child catches up on any missed school work. 

Milton Keynes Council has produced workbooks for children who will be away from school for extended holidays.  The focus is on making the holiday itself an educationally rewarding experience.  Parents are expected to help children complete the workbook during the vacation.

Term-Time Holiday Top Tips for Parents

1.                Find out now, well in advance of it becoming an issue, what your child’s school’s policy is on term-time holidays.

2.                If you are considering arranging a holiday during the school term, seek permission early, and before any booking is made and before any money changes hands.   

3.                Where parents are separated, any request for an authorised absence from school should be discussed (and ideally agreed) before the school is approached.

4.                If permission is given, be prepared to help your child catch-up on any school work missed.  Most schools, even though there is no positive obligation, will help with this.

5.                Consider whether and how the holiday can help further your child’s education and imagination.  The Milton Keynes’ workbooks provide some excellent pointers for how this can be done.

6.                Timing is everything:  important activities tend to congregate around end of term – exams, school plays and concerts, etc.  Have the school calendar very much in mind when considering when you might take a term-time holiday.

7.                Children get jet lag in the same way adults do.  If the holiday is a long-haul one, make sure you take into account the time it will take for your child to readjust on his or her return home.  Allow for a couple of days so that body clocks can recalibrate before returning to school.

8.                Be honest with your child’s headteacher.  If the holiday is planned to allow your child to be part of a family event – a wedding, an anniversary, or an important birthday – then say so.  This may prove the difference between an absence being authorised or not. 

9.                If permission for a term-time holiday is not given, consider the following to make a vacation during the school holidays more affordable: 

 

(a)               look for all-inclusive packages - with the cost of food, drink and entertainment included, costs will be relatively capped and there should be few surprises;

(b)               investigate less popular destinations – these may have all of the features and activities of more popular ones, but at a fraction of the cost;

(c)               compare air travel prices from all UK airports - driving or taking the train to a different airport might be significantly cheaper than flying from the nearest one to home. 

(d)               if in self-catering accommodation, go native!  Follow the locals’ lead, and shop at local markets and stores to help keep costs down. 

The closing message for parents is to ask your child’s headteacher for permission early.  This will ensure holiday plans are not ruined if an eleventh-hour request to approve a holiday is refused. 

Relocation Applications and the 1996 Hague Convention

Jordans’ Family Law featured on St Valentine’s Day (14 February 2013) a précis of a decision by Mr Justice Hedley on 7 December 2012.

The High Court case concerned an application by a Russian mother to relocate with the parties’ one-year-old daughter back to her native Russia.  The child’s father opposed the application, and sought a shared care arrangement.

The jurisprudence and current trends in relocation cases are dealt with comprehensively elsewhere, and are not the focus of this blog.

According to the summary (I have not been able to track down a full copy of the Judgment yet), the mother was given permission to relocate.  This was conditional upon her obtaining an order from the Russian court enshrining the contact proposals the court had accepted as being in the child’s interests.

Lord Justice Wilson (as he then was) observed in Re R (Leave to Remove: Contact) [2010] EWCA Civ 1137, [2011] 1 FLR 1336 the tension between granting a parent permission to relocate, but then attaching to that permission a contact order.  He said (at para [22]):

“Although a contact order is, as I have noticed, now occasionally made by way of attachment to a grant of leave, it is contrary to principle.  A contact order would be an order taking effect until further order of the English court.  But, on a grant of leave, the English court is, if only for practical reasons, surrendering its control over the child to the foreign court … [I]t would of course be to the court in Perth that the father would turn; for any further order of the English court would not have effect in Australia.  With the leave of the English court, he would be likely to present the judge’s judgment to the judge in Perth and seek an order for contact with L along the lines therein set out … this court [does not] automatically require a foreign, mirror order to be in place before the child leaves England and Wales.  In the circumstances in which the court has some doubt about the applicant’s bona fides in relation to the other parent’s contact, that precaution is often taken; but, in circumstances, like the present, in which the judge reached the firmest conclusion about the mother’s commitment to contact, it would not be usual to put her to the expense and delay of obtaining a mirror order.”

Late last year, the 1996 Hague Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in respect of Parental Responsibility and Measures for the Protection of Children (‘the Hague PR Convention’) entered into force in this country.

The Convention is intended to harmonise the approach between Contracting States on matters affecting – as its title suggests – the protection of children.  It does this in relation to matters of jurisdiction (which country’s courts and agencies should take measures to protect children), applicable law (which rules of law they ought to apply when doing so) and recognition and enforcement (the intention being a measure taken in one Contracting State should almost always be recognised in another).

The Hague PR Convention is in force throughout almost all of the EU Membership (excepting Belgium and Italy), much of the rest of Europe, and countries further afield, such as Australia and Morocco.  More Contracting States are expected to come on board in the months and years ahead.  The Russian Federation has approved of the Hague PR Convention and it enters into force there on 1 June 2013.  A full status table is available on the Hague Conference website.

If the Hague PR Convention had entered into force between the UK and the Russian Federation, it would have neatly sidestepped in the recently-reported case the tension identified by Wilson LJ.  The English court could have made a contact order at the same time as giving permission to relocate.  That contact order would have been (except in exceptional cases) automatically recognised and capable of enforcement in Russia (Articles 23, 26 and 28 of the Convention).  The father could have sought advance recognition of the contact order from the Russian authorities to ensure there were no obstacles in this regard (Article 24), prior to his daughter moving.  There would have been no need for the mother to obtain a separate order from the Russian court embodying the contact proposals. 

The Ministry of Justice has recently published a guide on how the Hague PR Convention will operate practically, and it is critical reading.   

It is still early days for the Hague PR Convention, but it promises to be an extremely valuable tool – especially as more Contracting States sign up to it – for those working to ensure the best outcomes for children in families where there are transnational issues. 

Nyet Spasiba! – Marriage Equality puts Anglo-Russian Adoptions in Doubt

In the aftermath of the historic Commons’ vote on Tuesday paving the way for marriage equality, Russian officials have said that British couples might be precluded from adopting Russian orphans. 

Quoted in The Telegraph, the human rights envoy at the Russian Foreign Ministry said, "The British and French parliaments have legalised same-sex marriages.  This narrows the chances of citizens of these countries adopting Russian children.”

According to Russia Today, Pavel Astakhov, Russia’s Children’s Rights Ombudsman, said same-sex couples in France would not be allowed to adopt Russian children.  Presumably, the same will be true of British same-sex couples. 

He cited in support of this policy the Russian constitution’s definition of marriage as a “union of a man and a woman.”

“The official position on gay marriages is stated in Russian official documents, the family code and the constitution,” he said. “They put it straight that the marriage is a union of a man and a woman. We do not have anything else. Period.”

These proclamations follow a ban on adoption by US couples, passed in December 2012.  The justification for the ban was said to be a concern that Russian children were being abused by their adoptive parents in the US. 

Commentators believe, however, that the ban is a reaction to the US approval of a law allowing Russian officials suspected of human rights violations to be sanctioned.

 

One Russian legislator, Leonid Kalashnikov, who was not present for the vote on the US adoption ban, described the law as “vindictive”.

In a quote appearing in the Los Angeles Times, Kalashnikov said, "The Kremlin didn't really want to spoil relations with the United States but couldn't leave an unfriendly act unanswered.  So they let off steam by using the fate of thousands of orphans as a lever of political pressure."

According to New York’s Russian Children’s Welfare Society, there are currently more than 700,000 orphans in Russia.  This figure is increasing annually at a rate of 113,000 children.

Tragically, some of those hundreds of thousands of vulnerable children will be denied a chance to experience a loving family environment, on account of antediluvian views about how worthy or otherwise people might be as parents based upon their sexual equipment.  A view which, incidentally, runs contrary to all credible studies on topic, which consistently show the sexual orientation of adoptive or foster parents makes precisely no difference to the quality of the parenting they provide (see, for example, the results of a study published in November 2012 by psychologists from the University of Central Los Angeles on outcomes depending on whether adopted children were placed with gay, lesbian or heterosexual parents).

This truism has fortunately been recognised for some time in this country.  The now defunct Adoption Act 1976 did not allow same-sex couples to adopt.  This was overcome by courts making adoption orders in favour of one of the couple, in the knowledge the child would live with them both.  I was involved in several cases where this work-around was used to ensure the best interests of the child concerned were met. 

And the overhaul of our adoption laws in the form of the Adoption and Children Act 2002 confirmed that adoption orders could be made in favour of civil partners, or two people (whether of differing or the same sex) living together in an enduring family relationship. 

Nyet Spasiba indeed, Russia. 

Men yearning to become single-parent fathers

Jake Docker and his three week old twin daughters Pippa and Millie

According to a report last weekend in Sydney’s Daily Telegraph, a growing number of Australian men are becoming single fathers via overseas surrogates. 

Support group, Surrogacy Australia, said single men were longing to be fathers.  They were not deterred by a commercial surrogacy ban introduced in New South Wales in 2010.

The report featured the story of Jake Docker, 27.  Jake had just recently brought home his three-week-old twin daughters Pippa and Millie, born to an Indian surrogate in early January.

Said Jake:  "I just wanted to be a dad as long as I could remember… It was now or never, go it alone or don't do it at all, so I only just scraped in.”.

Mr Docker, who is gay, said there was no other way for him to pursue fatherhood in Australia.

Hundreds of Australian couples - gay and heterosexual - and single men have opted for Indian surrogates because they are a quarter of the price of an American surrogate, which can cost up to AU$200,000.

Surrogacy Australia spokesman Sam Everingham said: "We are seeing hundreds of men lining up for surrogacy overseas, some are gay, some are heterosexual but I've been amazed by the number of single men walking through our doors. They are taking on the responsibility of having a kid on their own, but women have done it for decades."

What is the situation in England and Wales?  Well, the law does not prohibit single people of either gender pursuing surrogacy.  However, they cannot then seek a Parental Order under the Human Embryology and Fertilisation Act 2008; that route is only open to a couple who are married or in a civil partnership, or who are living in an “enduring relationship”.  So, single people who have a child through surrogacy need to look to other mechanisms to ensure they are legally recognised as the parent or carer for their child.  The most obvious alternative is adoption proceedings, which themselves may be protracted and difficult.  

It seems anachronistic that a single person is entitled to adopt a child, but cannot be recognised as a parent.  This makes surrogacy unavailable as a route by which a single person may fulfil a yearning to have a child.  This differing approach based upon the relationship status of the individuals concerned cannot be justified, and must be reconsidered.

Mixed-race Adoption under the spotlight

Earlier this week, the British Association for Adoption and Fostering (BAAF) published their results of a three-year study into mixed-race adoption placements.

The study focussed on the experiences of 72 Chinese orphans who arrived from Hong Kong in the 1960s, and who were adopted by (mainly white) British parents.

The study, the first of its kind to look at transracial adoption in Britain, asked the adoptees to talk about their experiences from childhood through to middle age.

Reported in The Guardian, common feedback included “varying levels of racism, prejudice and feelings of belonging and difference within their adoptive families and wider communities.”

Many respondents also “felt alienated” and “struggled with conflicts of dual/multiple identities and had experienced race-based mistreatment.”

For some, childhood and adolescence were particularly traumatic, with 54% saying they “felt uncomfortable” after comments about how different they looked from their adoptive family.

Around three-quarters of those studied said they had wanted to look less Chinese as they grew up, while a smaller figure said “race-based bullying” and discrimination “had a substantial negative impact on their well-being.”

The news was not all grim:  one positive outcome of the study was that the adopted orphans tended to become more comfortable with their Chinese appearance as they matured.  Researchers also noted other positive patterns in comparison to other studies of both non-adopted and adopted women, with the former Hong Kong orphans exhibiting good levels of mental and physical health, educational achievement, positive family lives and relationships with adoptive families.

The publication of the study’s results could not be more timely.  The Coalition Government is blazing ahead with proposals to make it easier for prospective adopters to adopt children from different cultural or racial backgrounds.  Education Secretary, Michael Gove, has described as “misguided” the belief that children must be matched with parents of the same ethnicity.

The Department for Education’s stated position is as follows:

“We are changing the law to ensure black and minority ethnic children – who take on average a year longer to be adopted than white children – are not left waiting in care any longer than necessary. We want them to be with adoptive families where they can thrive and realise their full potential.”

So, which view is correct?  As with all such issues, the right approach is not a binary one.  Of course children should not be left languishing in the care system whilst a search wears on for years for the absolute perfect match in terms of prospective adoptive parents.  But nor can the placement of some of the most vulnerable children ignore the importance of race and culture in mixed race adoption.  Ethnicity, culture and background help to form a young person’s identity.  It would be folly to ignore these features, as collateral damage in the rush to ensure that an adoption is concluded sooner rather than later.  The balance has to be struck between delay and ensuring that any proposed placement is the best one, taking account of the various aspects that go towards making up the child or young person affected.

Israeli Supreme Court recommends framework for same-sex surrogacy

The Supreme Court of Israel

On Sunday 3 February, Israel's Supreme Court recommended the State clarifies legal procedures for same-sex couples seeking to have a child via surrogacy.  Currently, a legal framework for such couples does not exist.  The Court decided that this lacuna amounted to discrimination.

The Court of seven Judges was considering two cases involving gay male couples asking to be recognised as the parents of children born to surrogate mothers in the United States.

In Judgment, Supreme Court vice-president, Miriam Naor, criticised the current situation as discriminatory against gay couples.  She said:  “the law blocks access of many couples to surrogacy, not only same-sex couples.

 

“They are forced to go abroad because Israeli law does not allow them surrogacy procedure at home.

“These people – who are good and productive citizens – are not given any solutions in the current legislation”.

Responding to the decision, the Israeli State said it would consider the court’s recommendations, and review how to shorten and simplify the surrogacy process.

This might seem all very quaint and an exercise in catch-up when viewed through Western eyes.  However, it ought to be borne in mind that the situation in this country was not so different until recently.

Surrogacy in England and Wales is regulated by the Human Embryology and Fertilisation Act 2008.  Amongst other things, the Act says who may apply for a Parental Order (that is, an order that confirms a child born via surrogacy is the child of the commissioning parents). 

Until April 2010, only heterosexual married couples could seek a Parental Order.

Now, in addition to such couples, civil partners and unmarried couples (whether hetero- or homosexual) living in an “enduring relationship” may ask the court to make a Parental Order.