Term time holiday, is prosecution likely?

[SaunteringDownwards]

We are intending to take a holiday abroad for the first time with our 3 DC’s. Our youngest is autistic and heading in to SATS with so much anxiety and we saw an amazing deal for after they are finished and thought we would go for it. Their grandmother (my mother) is terminally ill and this will be the last time I could go away with them for a very long time, until she passes.
We are hoping that during term time won’t be as over stimulating for DD and we could never afford it otherwise.
Our issue is that due to her autism, DD’s attendance is horrendous, her school friend died last year and the school refusal really ramped up to the point she has been on a reduced timetable for nearly a year, and the school frequently ask us to come and collect her due to her not engaging with her work - so I’m definitely expecting a fine, but could they move straight to prosecution if they wanted to? For DS I can’t see them doing that as his attendance is perfect and paying a fine isn’t the end of the world, but I’ve gotten myself in to a bit of an anxious mess about potentially being taken to court. Due to DD’s autism we’ve never been abroad as a family and I feel a bit out of my depth.
Advice would be appreciated!

How long are you taking them out of school for?

I’m sorry your DD has had such a rough time and I’m really sorry about her friend. Has any of her absence been unauthorised?

I am not an expert on this but I think if you can share these details, more knowledgeable people will know how the law is applied.

I would expect a fine, but not prosecution. Why don't you talk it over with the Head?

Just five days of school so Sunday to Sunday. Her absences are never unauthorised I don’t think and the school frequently asks us to come and get her also. Most of her absences are on days when she gets counselling and can’t face school afterwards because she’s been upset and can’t regulate to go back in.

Mainly because she scares me 😅but yes I suppose this is the most practical next step, I’m wondering if it may be worth waiting a month or two as her attendance should start to improve now her counselling sessions have almost finished.

I think that is wise. Focus on improving attendance, building a relationship with the Head. Ultimately, a fine is up to the Head. Paying it or not is up to you, and if you don't that's where prosecution comes in. There is a lot of pressure in Heads to issue fines, but if you have some compelling reasons to book in term time, they may be able to not issue a fine.

It sounds like you will be ok, considering the absence so far is authorised. Don't worry, just speak to the school. They should supportive, but honest about whether they will fine or not.

We don’t mind paying the fine as we know we are being pretty unreasonable with her attendance the way it is, I just don’t want to end up in court with everything else that’s going on right now, but she really needs this break away and it would do our whole family so much good.

The school asks you to go and pick her up because she's 'not engaging with her work?' That isn't lawful in itself. It's unlawful for a school to send a pupil home because they have SEN and they can't meet their needs.

It would be pretty ironic if they were unhappy with her missing school when they send her home just because she's not engaging. If they are funny about her having time off point out that being sent home because she has SEN is also unlawful and you won't be picking her up in future. TBH I don't think you should anyway, she's entitled to a full time education and the school need to be doing more to support her not just sending her home.

Does she have an EHCP? I'd really recommend you start the process if not.

The fine is not up to the Headteacher, it is the local authority who decides this. The school are legally obliged to report their attendance statistics and it is the LA who issue fines (and prosecution proceedings). As much as the Head may like/dislike you it will have no bearing on whether you get fined.

If all her other absences are authorized you shouldn't be prosecuted as it'll be seen as a first offence. I would be surprised if school aren't authorizing them (the other absences not the holiday) given they won't want to draw attention to what sounds like illegal exclusions when they ask you to pick her up.

Have you been called in for a meeting and signed an attendance plan? You're unlikely to be prosecuted unless this has already happened. A 5 day holiday will almost certainly trigger a fine - for each child, and for each parent, AFAIK. So 3 DC's x 2, 6 fines, £480. Worth thinking about in terms of cost, but not likely to result in prosecution.

FWIW, I would still do it (unless the fines make it unaffordable) Schools are under so much pressure now re attendance that they can't be as compassionate as they would wish to be.

There is some legislation that if your child has SEN you can take them on holiday during term time - I’m not exactly sure of the exact details but google it. For your son unlikely if he has good attendance

She does have an EHCP. When it comes to sending her home I have wondered whether it’s something that is allowed as there is no violence etc from DD, just being completely overwhelmed and not being able to be in class. This has ramped up again recently due to all the SATS pressure. It’s taken everything we’ve got just to keep her in school and she’s very close to leaving now, so we just go get her when we are asked because we’re so exhausted by the whole thing. We’re hoping secondary will be better but we aren’t dismissing the idea of home ed moving forward.

It is up to the Head. I am a governor and it is something we discuss often. Ofsted may ask why a fine was issued or not, so the Head may have some answering to do, but it is up to the Head to issue the fine.

I am fairly sure this is not the case (happy to be proved wrong) there was a petition but no new legislation. Are you perhaps referring to the extra flexibility that is allowed when considering the attendance of students with SEN? That won't be applied to a 10 session holiday. Fines are mandatory.

Heads don't issue fines.

It is, however, a legal requirement for them to not authorise term time holidays.

It is also a legal requirement for them to submit details to the Local Authority for the issuing of a fixed penalty or other consequence to be considered by the Local Authority, who make the decision whether to issue a penalty, start the process for an attendance order or to prosecute.

It is also a legal requirement for them to share attendance data with both the DfE and the local authority. As such, the LA will be able to see that there are unauthorised absences for holidays and will, as they receive the income from any fixed penalties, be very keen to draw to the Head's attention that they are not fulfilling their legal obligation to submit fixed penalty applications.

There are no extenuating circumstances that can be claimed by a parent - they're on holiday, it's not authorised because it can't be = they are liable for the consequences.

Possible fine but won't be any thing more than that.
Saying that I've taken mine out unauthorised about 5 times over the years and never had a fine

No, don't. You were right. It's the Law.

Somebody needs their Governance Professional to explain the Statutory Guidance - or at least to log into the Key for School Governors/access the NGA Learning Link training on it.

For the sake of the OP, I didn't go into who raises the fine and who issues it, when absence can be authorised or not etc. As I originally said, I would expect a fine but not a prosecution, and the best thing is to speak to the Head in advance.

There will be cases when holidays don't result in fines, or do result in prosecutions, and cases where the Head's discretion has been applied, with the support of the governing body.

I doubt they need to know all the ins and outs, but it is public information and can be found here DfE Working together to improve school attendance

Penalty notices must be issued in line with the Education Regulations 2007, as amended and can only be issued by a headteacher or
someone authorised by them (a deputy or assistant head), a local authority officer or the
police.

When a school becomes aware that the threshold has been met, they are expected
to make the following considerations to decide whether to issue a penalty notice in each
individual case:
• Is support appropriate in this case?
If no, for example a holiday in term time, a penalty notice should be issued
subject to the other conditions below.

• Is a penalty notice the best available tool to improve attendance and change
parental behaviour for this particular family or would further support or one of the
other legal interventions be more appropriate?
• Is issuing a penalty notice in this case appropriate after considering any obligations
under the Equality Act 2010 such as where a pupil has a disability?
If the answer to these questions is yes, then a penalty notice should be issued. If
not, another tool or legal intervention should be used to improve attendance.

I think I’d just have to be extremely sure a prosecution is not a likely outcome. No holiday is worth a criminal record, but I just know how much it would benefit the kids to get to go away for a few days before my mum gets sicker and it becomes impossible for the foreseeable future.

School attendance officer here. A fine is likely but prosecution is not.
Its not the head who issues the fines school have to provide the information to the LA and they issue them a prosecution is a very last resort.