West Sussex County Council v C (Rev 1) [2013] EWHC 1757 (Admin)
[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. 17. "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.