CO/9242/2012 
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION 
DIVISIONAL COURT 
Royal Courts of Justice 
Strand
London WC2A 2LL 

Tuesday, 30 April 2013
 
B e f o r e:

LADY JUSTICE HALLETT DBE 

MR JUSTICE BURNETT 

Between: 
 
WEST SUSSEX COUNTY COUNCIL 
Appellant

v 

C 
Respondent 
 
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Mr D Milne (instructed by West Sussex County Council) appeared on behalf of the Appellant 
 
Mr M Scott (instructed by Boots Starke Goacher Solicitors) appeared on behalf of the Respondent 
 
J U D G M E N T 
(As approved by the Court) 
 
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LADY JUSTICE HALLETT:  The respondent is the mother of M, who at the material time was 15 years and 3 months old.  She will be 17 later this year.  The respondent separated from M's father when M was only 1 because the respondent suffered a high level of domestic violence at his hands.  She was re-housed at an address not disclosed to him many miles away from the matrimonial home.  She had sole care of M and the legal responsibility to get her to school.  
In 2010 M decided to trace her father using social media websites.  She succeeded but lied to her mother about what she had done.  She went missing for the first time in that same year.   She had gone to see her father and to stay with his family.  The respondent contacted everyone in the area where the father lived that she could think of, she contacted the social services, she contacted her Member of Parliament and she contacted the police, but no-one could help. 
On and off over the next year or so M continued to leave her mother and head to London to stay with her paternal relations as and when it suited her, especially when her mother tried to exert discipline over her.  When M was with her, the respondent would do what she could to get M to school. She would physically escort her there but M would just leave the premises.  School staff told the respondent that physical restraint would constitute an assault.  
The respondent was first prosecuted for failing to ensure that M and her brother R attended school with sufficient frequency in July 2011. She was convicted in her absence.  By September 2011 M’s attendance dropped to zero.  The respondent was again charged with failing to make her daughter attend school regularly, for the period September to December 2011.  During this period M spent approximately half that time with her paternal grandparents.  They made some limited effort to get her enrolled in a school local to them. But, she seems to have spent most of the school day out and about in the town.  When M was at home with her mother, she would tell her mother she was going to school and set off in her uniform, but she would slip away, change out of her uniform and play truant.  
The respondent knew that M was not attending school during this period because the educational welfare officer told her so. Nevertheless, the respondent failed to attend meetings arranged by the educational welfare officer.  This was said to be because of the respondent's own problems.  
The defence at trial, as run by Mr Scott who appeared for her then and before us, was that she was not responsible for a large part of M's time. M was with her paternal relations. When M was with her, the respondent, had done her best in difficult circumstances.  This argument found favour with the justices. They found that it was M's chaotic lifestyle that led to her not attending school and that her chaotic lifestyle amounted to an “unavoidable cause” which prevented the child from attending school within the meaning of section 444(2A) of the Education Act 1996.  They also found that the respondent's mental health was a contributing factor in her failure to engage appropriately with the educational welfare officer and that this would in any event have amounted to reasonable justification for the child's absence.  
This is an appeal by West Sussex County Council by way of Case Stated from that decision dated 25 May 2012.  The questions posed for the High Court are: (i) whether the justices were wrong in law to find that M's chaotic lifestyle amounted to an unavoidable cause preventing her from attending school; (ii) whether they were wrong in law to find that the respondent had not failed to cause her daughter to attend school regularly; and (iii) whether they were wrong not to convict the respondent of an offence.  
Mr Milne, on behalf of the council, drew our attention not only to the provisions of the Education Act itself but also to a number of decisions of this court in which either the provisions with which we are concerned or other similar provisions have been considered.  He reminded the court that, first and foremost, section 7 of the Education Act 1996 imposes a duty on the parent of a child of compulsory school age to cause them to receive efficient full‑time education.  Section 444 of the Act, where relevant, creates two offences:
"(1) If a child of compulsory school age who is a registered pupil at a school fails to attend regularly at the school, his parent is guilty of an offence. 
(1A) If in the circumstances mentioned in subsection (1) the parent knows that his child is failing to attend regularly at the school and fails without reasonable justification to cause him to do so, he is guilty of an offence.
(1B) It is a defence for a person charged with an offence under subsection (1A) to prove that he had a reasonable justification for his failure to cause the child to attend regularly at the school.
(2A) The child shall not be taken to have failed to attend regularly at the school by reason of his absence from the school at any time if the parent proves that at that time the child was prevented from attending by reason of sickness or any unavoidable cause."
Subsection (3) provides the circumstances in which the child shall not be taken to have failed to attend regularly, for example if the child has leave or there is some religious occasion that the child must observe.  
As far as penalties are concerned, in subsection (8) it is provided:
"(8) A person guilty of an offence under subsection (1) is liable on summary conviction to a fine not exceeding level 3 on the standard scale.
(8A)A person guilty of an offence under subsection (1A) is liable on summary conviction— 
(a)to a fine not exceeding level 4 on the standard scale, or 
(b)to imprisonment for a term not exceeding three months, 
Or both.
(8B)If, on the trial of an offence under subsection (1A), the court finds the defendant not guilty of that offence but is satisfied that he is guilty of an offence under subsection (1), the court may find him guilty of that offence."  
Thus the section creates two alternative offences.  Put simply, subsection (1) makes a parent guilty of an offence if their child fails to attend school without leave. The parent has a defence if the child was prevented from attending by illness or an unavoidable cause failing which the penalty is a fine on level 3.  Subsection (1A) creates a more serious offence: where the parent knows their child is not attending school and has no reasonable justification for failing to make them attend for which the penalty is a higher level of fine and/or imprisonment.  
The charge here was under subsection (1A). The defence to section 1(A) was reasonable justification namely M was not under the control of her mother and it was not her responsibility to get the child to school during the relevant period. The defence to the more general alternative offence was unavoidable cause. 
The magistrates found that the respondent knew that her daughter was not attending school and failed to engage with the educational welfare officer but was not in control of her daughter for a substantial proportion of the winter term but that.  They said this:
"Mental health issues may well have impacted upon her failure to deal with matters in a more conventional way and therefore had a reasonable justification for her failure."
Mr Milne has not attempted to challenge the finding of reasonable justification.  He challenges the finding that the child was prevented from attending school by an “unavoidable cause”. He does not accept that M’s chaotic lifestyle could amount to an unavoidable cause and therefore having acquitted the respondent of the more serious offence, the justices were obliged to convict her of the lesser offence. She had no defence.  

Mr Milne relied upon a whole line of authorities, which unfortunately were not placed before the magistrates, from which he derives the proposition that the expression” “unavoidable cause” must be strictly construed.  He cited, for example, Jenkins v Howells [1949] 2 KB 218, in which it was said that “unavoidable cause” (in a similar statutory provision) must mean "an unavoidable cause which actually affects the child's attendance, such as a sudden serious illness or some emergency of that kind".  Lord Goddard CJ observed:
"If her parents' house were burnt down that would be properly regarded, at any rate for a day or two, as an 'unavoidable cause'.  But I think 'unavailable cause' must be read in the present context as meaning something in the nature of an emergency."
Mr Scott invited our attention to the facts of that case and attempted to distinguish them from the present case.  At the time Jenkins v Howells was decided life was very different. The 14 year old child was kept at home to perform domestic chores.  It is understandable, therefore, that the court refused to accept that an “unavoidable cause” existed. In any event, Mr Scott sought to persuade us that the words in the judgment which equated “unavoidable cause” to an emergency, were unnecessary to the decision. They should not be interpreted in such a way as to remove from this respondent her entire defence.  
However, Mr Scott could not deny that the decision in Jenkins v Howells has been followed several times.  In Bath and North East Somerset District Council v Warman [1999] ELR 80, for example, despite the court’s feeling sympathy for the defendant parent, it was held that a deliberate decision on the part of the child to remove herself from the family home and refuse to tell her mother her whereabouts did not give rise to an unavoidable cause.  This was despite the fact the child was very nearly 16 and had left home to live with her boyfriend.  Mr Scott attempted to distinguish the facts of Bath from the present case on the basis that Ms Warman had not done everything she reasonably could to get the child to attend school or to engage with the local authorities.  However, to my mind, there was no satisfactory distinction to be drawn on the facts. One is left, therefore, with the clear finding that where a mother could not control her young daughter, it did not give rise to an “unavoidable cause” for the child's absence from school.
The next decision was the London Borough of Islington v D [2011] EWHC 990 (Admin).  Here, the facts were very much in the mother's favour.  The child had significant psychological and behavioural difficulties.  The mother had done all that she could to secure the attendance of her child at school.  Nevertheless, the court was driven to the conclusion that there was "no question of there having been anything in the nature of an emergency which prevented [the child] from attending the school" (see paragraph 11).
Sullivan LJ in his judgment said this:
"The fact that the Respondent was unable to persuade him to attend regularly at school does not mean that he was prevented from doing so by an 'unavoidable cause'.
At paragraph 12 he said:
"It seems to me therefore that in considering whether the Respondent had done all she could in order to secure DK's attendance the magistrates were applying the wrong test.  Such a finding might well have been relevant for the purposes of mitigation but it was not a defence to the prosecution under subsection 444(1)."
Mr Scott valiantly attempted to distinguish the facts of D on the basis the child in D did attend school on many occasions (20 of 88). This he suggested would be relevant to the question of whether not the cause of the child's non‑attendance on other occasions was unavoidable.  
Mr Scott invited the court to conclude that each case should be treated on its own facts and that here, on the particular facts, the magistrates were perfectly entitled to find that there was an “unavoidable cause”.  There is no statutory definition of “unavoidable cause” and the court should construe the words as having their normal English meaning.  Something is unavoidable if there is nothing a person in the circumstances existing at the relevant time could reasonably have done to prevent it happening or stop it once it had happened.  In none of the cases put before us by the appellant council was there a finding that a constant case of affairs cannot in law amount to an “unavoidable cause”.  If so, one does not need some kind of sudden emergency.  
Mr Milne, on the other hand, submitted that the magistrates have fallen into the same error as the court fell into in the London Borough of Islington v D, namely by equating unavoidable cause with reasonable justification.  They failed to draw the clear distinction between the two defences.  Even if the magistrates here were satisfied, as they were, that the mother had a reasonable justification for failing to get her child to school, it did not follow that there was an unavoidable cause.  There was here no sudden illness or emergency preventing M from attending school.  M had been escorted to school on many occasions and therefore, it is difficult to see how she could have been prevented from attending by an “unavoidable cause”.  
Mr Milne relied upon the decision in the London Borough of Sutton v S [2004] EWHC 2876 (Admin).  Having considered a number of decisions in relation to when alternative offences should be left and/or considered by a tribunal, Thomas LJ said this at paragraph 26:
 "26. It seems to me that the principles to be derived from Fairbanks and Maxwell are applicable to the exercise of the discretion under (8B). It is important to stress that the public interest often requires that a person charged with a more serious offence should, if that is not made out, nonetheless be convicted of the lesser offence, if that is made out. The interests of justice are not served by acquittals in such circumstances. However, the test is the interests of justice.
27. In the circumstances before us, it has been accepted by Mr Compton that it would not be right, given all that has happened, for this court to remit the matter back to the Magistrates. Interesting questions may arise on what is meant by 'the interests of justice' ... "
Here, Mr Milne argues that the clear interests of justice are in favour of remitting the matter back to the magistrates to convict of the lesser offence.  There are good policy grounds for people to be convicted of an offence where, as here, they have been acquitted of the more serious offence and there are good reasons on the facts to justify the case being remitted.  If the respondent is convicted, it will have the effect of encouraging her to ensure attendance of her other child.  R’s attendance has gone down from 70 per cent to zero since the start of the last academic year in 2012.  
The fundamental flaw, as I see it, in Mr Scott's argument is that the clear and repeated steer of the courts is that the phrase "unavoidable cause" must be given a strict interpretation.  It must amount to something of an emergency.  Even if a parent has done all they can to ensure attendance they may find themselves liable of the lesser offence. Their efforts at getting their child to go to school will no doubt amount to powerful mitigation but they do not amount to a defence.  I reject Mr Scott's attempts at distinguishing the facts of this case from the facts of the previous decisions to which I have referred.  The facts of several of the decisions are all square with the present offence.  
A court may find itself sympathetic to the parent with a wilful child who insists on playing truant but Parliament has decided that this will be a strict liability offence. There is no defence to the offence under subsection (1) other than “unavoidable cause”.  Parliament has laid down strict rules and we are obliged to follow them.  That does not mean, however, that prosecutions should inevitably follow whatever the circumstances.  The public interest may weigh against a prosecution. It may dictate a better way of resolving this kind of problem short of resort to the court.  However, that is not relevant here. These proceedings were properly brought.  
The question arises, therefore, if the magistrates were wrong in law to find that there was an unavoidable cause, what follows?  Mr Scott has rehearsed the respondent's present circumstances.  She is a single mother on benefits and she has mental health problems.  M is now over 16 and he submitted that to remit these proceedings to the magistrates with a direction they convict would serve no useful purpose. 
Initially, I was attracted to that line of argument.  However, these proceedings are far from being pointless because of the son. The respondent has another child whose education is being severely disrupted.  In my judgment, it is both proper and necessary to remit the case to the magistrates with a direction that they convict of the lesser offence.  
Accordingly, I would answer the three questions posed by the magistrates: yes, yes and yes.
MR JUSTICE BURNETT:  I agree and add a few words only on a procedural matter that has been become apparent on reading the papers and listening to argument.  Section 444 of the Education Act 1996 is not entirely straightforward.  In this case, the respondent was prosecuted pursuant to section 444(1A).  It is a necessary ingredient of that offence, just as it is for an offence under section 444(1), the strict liability offence, that the child "fails to attend regularly at the school".  Section 444(1A) is an offence which has the additional ingredients that the parent knows that to be the state of affairs and fails to cause the child to attend regularly.  As my Lady has observed, section 444(2A) provides that:
 "The child shall not be taken to have failed to attend regularly at the school by reason of his absence from the school at any time if the parent proves that at that time the child was prevented from attending by reason of sickness or any unavoidable cause." 
If it is established that the absence was unavoidable there is no offence under section 444(1), nor could there be an aggravated offence contrary to section 444(1A).  That is because the child is not taken to have been regularly absent.  In this case, it is apparent that the magistrates considered the defence to section 444(1A), that is reasonable justification, before the question of unavoidable cause.  In my respectful judgment, that put the cart before the horse.  If an issue of unavoidable cause is raised by way of defence, that should be considered first; so too any other defences that negative the same fact, of which there are a number provided for by the statute.  If that defence is made out there can be no conviction under section 444(1) or 444(1A).  If it is not made out and there is a charge pursuant to subsection (1A) then it becomes necessary to consider the defence of reasonable justification.  A structured approach to submissions and decision making in cases of this sort with the assistance of reference to relevant authority would, I am sure, greatly assist magistrates when they come to decide them.