need advice on school attendance offence - council taking me to court, exceptional leave requested but denied and now facing court action Options

[chawal2]

hello volunteers,

i know this forum is about motorists and not about school attendance, but i do not have money to hire solicitors and this is criminal court i am being taken to. i have few queries in case someone can answer for me please?

1. if i request for school headteacher as witness will it be a good request - as case rests on him. he did not authorise my exceptional leave request. i have been told i may be asked to pay for his time.

2. can i represent myself or a solicitor is a must in criminal court? i do not have money to pay to solicitor.

3. any solicitor who can help me for free or nominal charge?

4. i am unable to find information on how government expects attendance percentage calculation? council is only using the period around absence which will be low. if they take only period of absence the percentage will infact be zero.

5. should authorised absences and illnesses also go in calculations for attendance percentage?

6. i have gone through council prosecution - it has wrong facts, wrong dates and portraying me as a regular casual offender using wrong data and wrong interpretation of my exceptional leave request

7. council is showing around 10+ letters that they sent me penalty notice and warnings and reminders about court case. i never got anything until last thursday this court summons for june so v little time is left for me to react and prepare defence and take advice and do research.

8. how can all get lost in post over 6 months period so i suspect they secretly filed court action and created letters but never posted them.

9. and school is counting one absence in prosection which happened before 6 months - i believe they cannot initiate prosecution after 6 months have passed.

i called few organisations but most deal with means based help and not about attendance anyway.

i will be grateful for advice.

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[NewJudge]

I have seen a number of prosecutions under the Education Act undertaken in the courts. One theme was common to them all and that is that the very last thing the Local Authority wanted to do was to become involved in a criminal prosecution against parents. By the time it got to that point every other avenue to try to resolve the matter had been tried and failed. For that reason I think you will find it very difficult to convince a court that the summons was the first official notification you had of the matter (“i never got anything until last thursday this court summons for june”).For the same reason I think it would be very unwise to accuse your local authority of somehow conducting a vendetta against you (“…so i suspect they secretly filed court action and created letters but never posted them”). There is no reason why they would do that and my experience suggests that court action is the last thing they want, especially one that has been brought, as you suspect, by underhand means.

To be clear, the Education Act requires you ensure your child “attends school regularly”. The case that jlc mentions produced an important ruling. In 2017 the Supreme Court was asked to rule in a case of Mr John Platt. Mr Platt had taken his child out of school for a holiday and the school imposed a penalty for doing so. Mr Platt refused to pay, arguing that, apart from the holiday, his child had a good attendance record and so had attended “regularly”. The Court ruled that “regularly” meant “in accordance with the school rules”. This essentially means your child must attend as the school requires. It also means that the school determines what type of absences, and how many, will be “authorised”. In 2013 the Education Secretary issued tighter guidance on what type of absences head teachers could authorise. In order to succeed you will need to show that the school rules and their decisions on whether or not to authorise absences were either unlawful or, at the very least, unreasonable.

Much of what you describe makes me think that, on the contrary, a court will find your actions unreasonable. You seem to want the school to accommodate a family lifestyle which is spread across two countries involving frequent and lengthy absences from school for many and various reasons. One of the criteria that Head Teachers must use when deciding whether or not to authorise absences is that the reason they are needed must be truly “exceptional”. From what you have said the absences you require are not – in your case at least – exceptional. They seem to be regular and commonplace and you expect to be able to take your child or children abroad for various reasons. These appear to be simply family reunions or holidays for family celebrations or “pilgrimages” which the children can take part in when they are older..

To answer a couple of specific questions:

- If your spouse is being prosecuted as well as you (which is commonplace) he or she can certainly plead Not Guilty but you cannot represent him or her in court. The “Not Guilty” plea does not simply transfer his or her responsibility to you (which I think you may be getting at).

- If the local press is in court the matter can be reported by them but they may be bound by the Children and Young Persons’ Act which prevents reporting that may lead to the identification of your children. In practice it would be unusual for the local press to be present for a routine case such as yours.

I personally think you face a steep uphill struggle to defend this matter yourself on the basis you describe and it would be very unwise to make some of the allegations you mention. But that, of course, is only my view based on what you have told us. You may be wise to try to secure a free consultation which some solicitors offer to at least establish whether you have a viable defence.

This post has been edited by NewJudge: Wed, 15 May 2019 - 07:50

[andy_foster]

As always, if the response was wholly unreasonable then it is equally unreasonable for the court to punish someone for ignoring it.

Andy-F puts that much better than I but the meaning and result are the same.

I can only assume that you are referring to my opinion regarding speculative s. 172 requirements where I would argue that there was no allegation that the vehicle in question was involved in the alleged offence. The allegation is a positive requirement in order for the offence to be made out. It does not seem that refusal to grant permission is a positive requirement for this offence to be made out, but simply that if permission had been granted then no offence would have been committed.

Generally, the question of (Wednesbury) unreasonableness of a decision by a public authority falls under the supervisory jurisdiction of the Administrative Court - so it would not technically be a matter for a lower court to make a finding on - but courts do have the right to decline jurisdiction in cases which offend their sense of justice, although generally the bar for that would presumably go far beyond mere unreasonableness.

Generally (again), if a party is aggreived by a decision, they are bound by it until such time as they are able to overturn it on appeal. For example if a driver is wrongly convicted and consequently disqualified, and continues to drive, he commits an offence regardless of whether or not the conviction is subsequently overturned (unless the disqualification was entirely ultra vires, in which case it would be a nullity).

[chawal2]

hello all,

i double checked document and please find link to the photo of the document page. 30 days out of 144 days. they have taken period as 23 april to 19 oct - across two academic years and not even rolling 12 months.

government criteria for calculating percentage is not mentioned anywhere. i emailed Department for Education but no response.

i now understand it could be typo but doubled the absence.

https://ibb.co/ySB6rgk

[chawal2]

I have seen a number of prosecutions under the Education Act undertaken in the courts. One theme was common to them all and that is that the very last thing the Local Authority wanted to do was to become involved in a criminal prosecution against parents. By the time it got to that point every other avenue to try to resolve the matter had been tried and failed. For that reason I think you will find it very difficult to convince a court that the summons was the first official notification you had of the matter (“i never got anything until last thursday this court summons for june”).For the same reason I think it would be very unwise to accuse your local authority of somehow conducting a vendetta against you (“…so i suspect they secretly filed court action and created letters but never posted them”). There is no reason why they would do that and my experience suggests that court action is the last thing they want, especially one that has been brought, as you suspect, by underhand means.

To be clear, the Education Act requires you ensure your child “attends school regularly”. The case that jlc mentions produced an important ruling. In 2017 the Supreme Court was asked to rule in a case of Mr John Platt. Mr Platt had taken his child out of school for a holiday and the school imposed a penalty for doing so. Mr Platt refused to pay, arguing that, apart from the holiday, his child had a good attendance record and so had attended “regularly”. The Court ruled that “regularly” meant “in accordance with the school rules”. This essentially means your child must attend as the school requires. It also means that the school determines what type of absences, and how many, will be “authorised”. In 2013 the Education Secretary issued tighter guidance on what type of absences head teachers could authorise. In order to succeed you will need to show that the school rules and their decisions on whether or not to authorise absences were either unlawful or, at the very least, unreasonable.

Much of what you describe makes me think that, on the contrary, a court will find your actions unreasonable. You seem to want the school to accommodate a family lifestyle which is spread across two countries involving frequent and lengthy absences from school for many and various reasons. One of the criteria that Head Teachers must use when deciding whether or not to authorise absences is that the reason they are needed must be truly “exceptional”. From what you have said the absences you require are not – in your case at least – exceptional. They seem to be regular and commonplace and you expect to be able to take your child or children abroad for various reasons. These appear to be simply family reunions or holidays for family celebrations or “pilgrimages” which the children can take part in when they are older..

To answer a couple of specific questions:

- If your spouse is being prosecuted as well as you (which is commonplace) he or she can certainly plead Not Guilty but you cannot represent him or her in court. The “Not Guilty” plea does not simply transfer his or her responsibility to you (which I think you may be getting at).

- If the local press is in court the matter can be reported by them but they may be bound by the Children and Young Persons’ Act which prevents reporting that may lead to the identification of your children. In practice it would be unusual for the local press to be present for a routine case such as yours.

I personally think you face a steep uphill struggle to defend this matter yourself on the basis you describe and it would be very unwise to make some of the allegations you mention. But that, of course, is only my view based on what you have told us. You may be wise to try to secure a free consultation which some solicitors offer to at least establish whether you have a viable defence.

thanks for your very useful insight. i value each feedback and opinion on this forum.

i had no reason to assume that council is being dishonest or malicious. on going through courts summons i concluded that.

can anyone of us think of any reason that will prevent me from getting each and every of the 10+ letters council has put copies of, saying i was sent reminders and court warnings over six months. address was correct.

i now believe that was done to not let me try to cancel the penalty notice or court proceedings. just to add here once again, for april absence, once i got penalty notice, i wrote to MP, councillors, senior council staff, attendance department and most of the senior people supported me indirectly and the matter was indirectly closed. so obviously school and attendance department were naturally upset with me. hence i think this time without any information, straightaway court summon was sent.

and i shared with you how the evidence is riddled with wrong claims and information. they r upset with me for april pressure. now human factor has come into picture.

please try to believe me. i have nothing to gain from wrong allegations.

[NewJudge]

please try to believe me. i have nothing to gain from wrong allegations.

I don't disbelieve you. I just think you are suffering from a number of misunderstandings.

Local authorities have a very rigid process which they adopt when dealing with matters like this. They tend to follow that process meticulously and will produce evidence to show that they have done so.

Whatever the number of non-attendances alleged (and they usually work in half days rather than full days) they will almost certainly be able to show evidence to support their allegation. You keep mentioning that the period of the absences crosses academic or calendar years and as such may not be fair. When dealing with these matters the Local Authority looks at a course of conduct over a period (they do not take court action for just a few unauthorised absences). As a result it is not unusual for them to cite absences over quite a lengthy period. The absences do not suddenly become irrelevant - and so "written off" - because (say) an academic or calendar year has ended. Similarly the alleged offence does not occur with the first absence that they cite (which may be "out of time" as far as a normal prosecution for, say speeding goes). They only decide to take action once a "course of conduct" has been observed (and almost certainly after other less formal ways of dealing with the problem have been exhausted). It would be unjust to claim that earlier absences cannot be considered for the purposes of prosecution because they occurred too long ago.

I don't think you will get the help you need to defend this matter on here. It is a complex issue needing expert advice on a one to one basis as every case is different. Have you enquired whether you qualify for Legal Aid? Your local Citizens Advice Bureau may be able to help you determine that.

[chawal2]

please try to believe me. i have nothing to gain from wrong allegations.

I don't disbelieve you. I just think you are suffering from a number of misunderstandings.

Local authorities have a very rigid process which they adopt when dealing with matters like this. They tend to follow that process meticulously and will produce evidence to show that they have done so.

Whatever the number of non-attendances alleged (and they usually work in half days rather than full days) they will almost certainly be able to show evidence to support their allegation. You keep mentioning that the period of the absences crosses academic or calendar years and as such may not be fair. When dealing with these matters the Local Authority looks at a course of conduct over a period (they do not take court action for just a few unauthorised absences). As a result it is not unusual for them to cite absences over quite a lengthy period. The absences do not suddenly become irrelevant - and so "written off" - because (say) an academic or calendar year has ended. Similarly the alleged offence does not occur with the first absence that they cite (which may be "out of time" as far as a normal prosecution for, say speeding goes). They only decide to take action once a "course of conduct" has been observed (and almost certainly after other less formal ways of dealing with the problem have been exhausted). It would be unjust to claim that earlier absences cannot be considered for the purposes of prosecution because they occurred too long ago.

I don't think you will get the help you need to defend this matter on here. It is a complex issue needing expert advice on a one to one basis as every case is different. Have you enquired whether you qualify for Legal Aid? Your local Citizens Advice Bureau may be able to help you determine that.

ok thank you. i phoned some solicitors yesterday and not many deal with education. one v reputed solicitor was helpful and told me that i can ask for duty solicitor for first day and then after that based on what i find, i can consult her. but she is 2 hours away from me so i have to try and find someone closer. i will phone citizen advice bureau too. i earn more than the £12500 annual income limit so do not qualify for legal aid.


**one last thing if you can let me know please - before i stop using your amazing forum of volunteers...:

i do not want solicitor to represent me or my spouse. also i have interest in law so can represent with some consultation from solicitor.

going by what you told me and what solicitor seemed to suggest, it seems i cannot represent my spouse in court. i do not understand why? if we both acted as a family and spouse trusted me with decisions, and is pleading NOT Guilty to identical charges made separately to each of parents, then why cannot i fight on my and spouse behalf please??

i am only thinking that my spouse has no interest in fighting case and has not been involved in any event till now, spouse even did not accompany me in unauthorised absences, then how spouse should proceed - any thoughts? solicitor suggested i ask if council prosecutor can make me liable only. but council will not cooperate i think.

i do not mind if we both r fined or punished but only want to know why i cannot represent both defendants and if i cannot represent spouse then what are my spouse options??

if spouse reads pre-written statements in court, will that be enough? basically spouse actions should not weaken case as spouse is not expert on this case although authorises me and stands by me.

after this request i will not ask for more.

thanks to each of you to take time to help me as much as you could...

This post has been edited by chawal2: Wed, 15 May 2019 - 14:04

[southpaw82]

You cannot represent your spouse because you are not a qualified lawyer with a right to conduct litigation or a right of audience. You can represent yourself but not anyone else unless the court very exceptionally allows it. To do otherwise would be a criminal offence.

[Logician]

Assuming the children are yours and your spouse's, your spouse could simply plead guilty and put forward mitigation. The fact that he did not accompany you may rather weaken your case, in that you could have left the children with him and travelled on your own.

Good luck with the case, I am afraid you are going to need it.

[henrik777]

Check any insurance policies you have for legal cover. Home, Motor, package bank account etc

[chawal2]

thanks all...

You cannot represent your spouse because you are not a qualified lawyer with a right to conduct litigation or a right of audience. You can represent yourself but not anyone else unless the court very exceptionally allows it. To do otherwise would be a criminal offence.

really helpful advice. thanks...

[chawal2]

hello folks, **please help me**

does anyone of you have knowledge or experience of *'magistrate court' procedures*? my court trial is in july.

my queries now are *not related with education law. i have researched education law fully and i am clear about my defence. i will be representing my case myself. i just need some advice:

my queries come under *criminal law*:

*vimp: 1. defence case statement in magistrate court is voluntary ie not compulsory. will sending defence case statement be of benefit for me? i want to send it only if it will benefit me.
*vimp: 2. my defence is based on exceptional nature of my leave and i found that council did not follow code of conduct to issue penalty ticket and skipped policies' phases and hence as per code of conduct, the penalty ticket is invalid.
*vimp: 3. since i let council know already that they used wrong calculation of percentage and wrong number of days etc, does council get chance by magistrate court to fix values and file new case?** or can they amend this case before trial? **or will the case be thrown out on the basis of wrong data and witness statements by judges? i mean has council got multiple chances to prosecute me or only one chance?
*vimp: 4. v imp**i read somewhere that council gets 6 months from date of absence to lay court summons? i will raise this in court but i do not know which law says that. can anyone please*** help me as to which law sets time limit for council to lay the court case for school absence??
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5. can my spouse and i give joint defence statements or separate? none of us are lawyers/solicitors and are representing ourselves.
6. as a matter of fact, council staff has bullied and harassed me by bringing this court case - can i say this in court? i mean i know they have done this - as they did not post letters and shown in court evidence that they have sent me and my spouse around 6 letters? i mean by saying that council did not treat me equally/fairly by not sending me letters - ie this is my harassment, oppression and bullying by council staff, will it be inappropriate to say that or can it land me in trouble? although this is case of harassment purely. it is noteworthy here that i had told council that this is my last visit during school term time - as my older child's GCSE has started so i can never go again during school time; and children will be older so i can leave them in UK and go alone if i need to go outside of school holidays.
7. can i say in court that council has caused contempt of court by using false evidence?
8. can my spouse use evidence that i have procured from council and school? we both are not qualified lawyers and are co-accused and are representing ourselves?
9. can my spouse (DS) not say that DS should be acquited by court because DS did not take the children out of school and DS did not even go out of UK? DS allowed me to visit my parents with my children as my parents live out of UK and if we did not go in october we would have had to wait for another year to meet my parents and children meeting grandparent? this would have resulted into a gap of 15-20 months for children and myself. this is my right to family life and is a basic human right for me.
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i will be grateful for your help.



also for magistrate court, my spouse, who is co-accused, can act as my witness? if yes, then do i need to inform magistrate's court as well as council ie prosecuation - in advance??

[NewJudge]

As I said earlier, you need expert one to one advice on these issues. In particular your points six and seven introduce matters which you would be very unwise to raise in your defence unless guided professionally to do so.

[chawal2]

Thanks. I will keep in mind.

[The Rookie]

Ref procedures.

You arrive and check in.

When your case is about to start you'll be called in and taken to the defendants location.

You'll be asked how you plead, just a straight guilty or not guilty. If guilty you'll be asked if you have anything to say.

If not guilty the prosecution will kick off by giving its case, you'll be able to cross examine any witnesses after they give their evidence, after 'half time' you present you legal case and also your witness evidence (if appropriate) and again can be cross examined. Then the bench will consider it's verdict.

It's not a good idea to accuse anyone of lying unless you can show its a DELIBERATE falsehood, if its accidental or negligent then it's 'mistaken' or 'confused'. Noting we have already given a plausible explanation for the biggest alleged disparity.

[chawal2]

Many thanks Rookie.
What u mean by below is not clear to me. Please can u consider explaining?
'
Noting we have already given a plausible explanation for the biggest alleged disparity.'
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1. Can i say that council never posted me any of 6 letters they claim in evidence to court?
As 6 letters cannot get lost in post.

Or shall i just say i never received and it is unlikely that council posted and i did not receive.

Kindly suggest how best to say to court.

2. Is there any benefit in sending in advance my defence case statement to court and prosecution- given that defence case statement is optional for magistrate court?

[The Rookie]

1. You state under oath (as a witness) that they were never received, you clearly can’t say they were never posted.

2. Is ‘Defence case statement’ your legal defence or your witness statement?

[NewJudge]

2. Is there any benefit in sending in advance my defence case statement to court and prosecution- given that defence case statement is optional for magistrate court?

Have you attended a "Case Management Hearing?".

Such a hearing is held some time before the trial is due to take place and you will be asked to provide the court with the nature of your defence. You do not have to provide it but if, at the trial, you attempt to "ambush" the prosecution by putting forward a defence that they have not had time to consider they may ask for (and may well secure) an adjournment to give them time to do so. Depending on the nature of the defence you put forward the court may order a short recess to allow the prosecution time to consider what you have put forward or, in the worst case, may order the trial to be suspended and resumed at a later date.

Have you stated the nature of your defence to anybody at any time?

[southpaw82]

2. Is ‘Defence case statement’ your legal defence or your witness statement?

Neither. CPIA 1996.

[chawal2]

1. You state under oath (as a witness) that they were never received, you clearly can’t say they were never posted.

2. Is ‘Defence case statement’ your legal defence or your witness statement?

defence case statement is basically written description of the defence case if pleaded not guilty.

https://www.inbrief.co.uk/court-proceedings...case-statement/

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Purpose of the defence case statement
The aim of defence disclosure is to:

assist trial management by helping to identify the issues in dispute;
provide information that the prosecutor needs to identify any material that should be disclosed; and
prompt reasonable lines of enquiry whether they point to or away from the accused.
Required elements of the defence case statement
The defence case statement must be in writing, signed by the defendant or the defendant’s solicitor and outline:

the nature of the defence of the accused, including any particular defence upon which they intend to rely;
the matters of fact on which the accused takes issue with the prosecution;
why the accused takes issue with the prosecution;
particulars of the matters of fact on which they intend to rely in their defence;
any point of law (including those as to admissibility of evidence or abuse of process) which the accused wishes to take, and any authority on which they intend to rely on for that purpose.
Bare denials are not sufficient to comply with the above stated obligations. Therefore, a complete denial of the prosecution’s case or the evidence of their witnesses without any reasoning on the defendant’s side is insufficient (R v Bryant (2005)).

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[NewJudge]

Indeed. Have you made the nature and details of your defence known to the court yet?