PARENTS facing prosecution for taking their children out of school during term time for a five day holiday have fought back – and had their cases thrown out of court.

The two couples – who cannot be identified due to a court order imposed to protect the identity of their children – appeared in two separate hearings at Swindon Magistrates’ Court on Friday where they stood trial for failing to secure the regular attendance of their children at school.

The court heard that the first couple had taken their secondary-aged child on holiday between October 5 and October 9 of last year, despite having had no written permission from the school to do this.

They were issued with a fine which led to court proceedings where they pleaded not guilty to the charge on the grounds that neither the law nor Swindon Borough Council’s code of conduct sets out what constitutes as regular attendance.

Robert Morgan-Jones, prosecuting on behalf of Swindon Borough Council, said that the number of cases of missed school days appearing in court had increased since 2013 following a change in government legislation in a bid to tackle truancy.

Previously, head teachers had had a greater degree of discretionary powers to allow parents to take term-time holidays in “special circumstances”.

“The change was to change ‘special circumstances’ to ‘exceptional circumstances’ and what is very clear is that there is much less discretion to head teachers to grant leave,” said Mr Morgan-Jones.

The parents had applied for leave, but didn’t hear back from the school, despite asking for clarification.

The court heard that the child had 92.96 per cent attendance for the period of September 2 to December 18, 2015.

But Jenny Logan, the council’s senior education welfare officer, argued the academic year was actually divided into six terms – with this holiday coming in the first term of the year from September to October. This put the child’s attendance at 86.84 per cent.

She added that the Government had set out that attendance below 90 per cent was considered as persistent absence. The child’s school set the benchmark at 93 per cent for the full academic year.

Mr Morgan-Jones said the difficulty for the magistrates was that there was no definition of what constituted as regular attendance in either statute or case law.

While the school’s policy is for students to attain 93 per cent across the academic year, Mr Morgan-Jones argued that this could not be a bench-mark for imposing convictions, as it could not be known what the child’s attendance would be for the remainder of the year.

“Clearly we are treading new ground and you will be aware that may in due course have to be considered elsewhere,” he said.

The child’s father – who represented himself and his wife in court with no legal representative present – told the magistrates that there was no definition of what constituted as regular attendance, and quoted from two previous cases to argue that the holiday could not be classed as a persistent absence.

The second couple also took their primary school aged child out of school for five days between September 21 and September 29 of last year, putting the attendance figure at 92.14 per cent.

In both cases the magistrates retired at length to deliberate their verdict, but chairman of the bench Gail Chilcott found that there was no case to answer after she ruled that the period of absence should be based on the period of September to December.

Following the verdict, the primary school child’s father said it was as though a huge weight had been lifted from his shoulders.

The secondary school child’s father said: “I am delighted with the outcome of the court case and the magistrates’ decision to dismiss this.

"However, the question of what constitutes ‘non-regular’ attendance does need to be defined as it will then hopefully reduce the number of these cases being brought to the courts.”

Following the decision a spokesman for Swindon Borough Council said: “The verdict has only just been delivered, and we are now considering our options.

"We have a responsibility to make sure that children get the best education they can, and attendance at school is a vitally important part of that.”