1

Based on your experience of local authorities implementing this duty since it was introduced in 2007, does the guidance make clear the actions which local authorities are expected to take to help them comply with the duty?

Yes

No

Not Sure

No Response

 

Answer/Comments

 

Our experience based upon reports from home educating families is that Local Authorities (LAs) appear to be becoming more and more intrusive and dictatorial in their approaches to home educating families. This may because the Feb 2007 CME guidance is at fault or it may be because LAs are not reading it carefully enough. However, the online home education community has been monitoring and collating data about attitudes and practices of LAs nationally for over eight years. On the basis of that collective knowledge and experience, we contend that LAs are simply filtering the existing guidance through an institutionalised prejudice against home education in order to justify the imposition of monitoring and a school-based model of education upon families. The current draft guidance will not even require filtering. It is simply a charter for LAs to harass, oppress, bully and otherwise interfere with law-abiding home educating families.

 

LAs have to be careful in their approach to families. They must not, for example, dictate the form and content of parental provision of education as this would contravene Protocol 2, Article 1 of the European Convention on Human Rights.

 

 

"In the exercise of any functions which it assumes in relation to education and to teaching, the State shall respect the right of parents to ensure such education and teaching in conformity with their own religious and philosophical convictions. "

 

 

This human right has been firmly established through precedent in English case law where it has been established that:

 

 

"The second sentence of Article 2 (p1-2) implies...The State is forbidden to pursue an aim of indoctrination that might be considered as not respecting parents' religious and philosophical convictions. That is the limit that must not be exceeded."

 

(see: http://hei.unige.ch/~clapham/hrdoc/docs/echrcampbellcase.txt)

 

 

This prohibition against indoctrination by the state is also echoed in Section 9 of the Education Act 1996:

 

"Pupils to be educated in accordance with parents' wishes.

 

In exercising or performing all their respective powers and duties under the Education Acts, the Secretary of State, local education authorities and the funding authorities shall have regard to the general principle that pupils are to be educated in accordance with the wishes of their parents, so far as that is compatible with the provision of efficient instruction and training and the avoidance of unreasonable public expenditure."

 

 

Despite the above, the attempted usurpation of parental responsibility to determine the form and content of education has already been a significant problem with the current CME guidance. LAs are interpreting the duty to identify children not receiving a suitable education (and the separate duty to be aware of the issues of safeguarding children in the course of their other duties) as meaning that they must assess all families everywhere for the suitability of their educational provision and in the process, to dictate the form and content of the education. Whatever the 2007 guidance actually said, LAs have seen it as an opportunity to "doorstep" home educators when there is actually no reason at all to think that a suitable education is not being provided. This is completely contrary to the advice of DCSF's Elective Home Education Guidelines, issued in November 2007.

 

 

Sadly it is the case that many LA visitors are fundamentally biased against alternative models of education. They may try to appear sympathetic but at base, they frequently want to impose a school-at-home model and do not accept just how badly this system fails many children. For a home educating family, the tension of knowing that you live in an area where the inspector is antipathetic to alternative models of education is often enough to cause extensive damage as the family struggle to meet two very different objectives - 1. to provide a genuinely suitable education for their child and 2. to please an inspector by providing what is in effect a less suitable education This second objective can completely derail the first. It is obviously, therefore, completely counter-productive for LAs to try to impose school models of education upon home educating families and entirely unsurprising that many parents wish to protect their children from the deleterious effects of LA interference by declining LA contact.

 

 

The damage that LAs do when they intrude upon families may not be obvious to them, but it can be very significant for the home educators affected. Home education is integral to family life. To have one's private life inspected by intrusive, power-driven and often unsympathetic LA personnel would be uncomfortable for almost any family, let alone for families whose children are recovering from terrible experiences at school, who were failed by the school model, or who are perhaps constitutionally anxious, for example, for some children with Autistic Spectrum Disorders who find change very difficult to cope with. Many of these children did not thrive in a classroom setting but they can thrive with a different style of learning and, when they have regained their confidence, can go on to take on any number of daunting challenges. Yet under ultra vires LA inspection, this whole process can be, and often is, set back dramatically. It is no wonder home educators are anxious to prevent such intrusions by the LA from becoming routine as this draft guidance would allow or appear to promote.

 

 

By way of some more examples of the way that LAs have often attempted to impose standards which have nothing to do with a family's philosophical convictions: some authorities have insisted that certain equipment is an essential pre-requisite for the provision of a suitable education, when they have neither considered the parental philosophy on this point, nor whether such equipment is suitable for the particular child.

 

 

Also, many home educators believe that a child's work is his own property to disseminate as he pleases. However, some LAs have required parents to produce evidence of the child's work when the child has not given consent to share it. Not only does this show total disregard for parental philosophy of education which allows due respect to the child and the facilitation of the development of their autonomy, it is completely inappropriate for LAs to prescribe the form and content of information provided under informal enquiries when a Court would not prescribe the form and content of evidence if the case were to progress to formal proceedings.

 

 

As a further example of intrusive and ultra vires practice by LAs, it has been reported in the HE community that some LAs would like to apply the Common Assessment Framework (CAF) to all home educators simply on the basis that they are home educators. The CAF is a highly intrusive questionnaire which would allow access to intimate and private parts of family life. There should be no question of officials routinely undertaking such an exercise, and yet with the confusing, ambiguous mess that is the new proposed guidance, we are very likely to see a rise in the push for such ultra vires activity by the LAs. In trying to insist upon its usage when there is no clear reason, LAs will be infringing Section 1, Article 8 of the European Convention on Human Rights which states:

 

 

"Everyone has the right to respect for his private and family life, his home and his correspondence. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others."

 

 

The intrusiveness of of a CAF is not the worst of the problems associated with it. The home education community is aware of at least one case where an LA appears to have over-reacted as a result of their fears of not identifying children missing from education and over safeguarding. This resulted in what seems to the HE community to be the completely disproportionate and unnecessary removal of a home educated child from her family, with all the tragic consequences that this kind of action entails.

 

 

We have also been made aware that a home-educator was subjected to a terrifying visit by Police Officers who threatened to force entry into her home, apparently because she had not provided the LA with "proof of (her children's) progress" and had been referred to the LA's CME department as result. In this particular case the LA had already accepted the parent's educational philosophy and requiring "proof of progress" was a clear attempt to impose upon this family an educational model that includes testing and/or assessment, using duress and in complete disregard for parental educational philosophy.

 

 

The proposed guidance will undoubtedly only make this situation worse, with its regular suggestions that all families out of school be assessed for the suitability of their educational provision - whether or not there is any reason to think that a suitable education is not being provided. This is highly likely to cause an increase both in the imposition of state-dictated standards and in terrible cases of injustice by the state.

 

 

There is good reason why last year's consultation on Elective Home Education (EHE) resulted in the Guidelines that it did; it was understood that should LAs become more intrusive and dictatorial, they will upset the fine balance between ensuring child safety and respecting the rights of families, both to privacy and to choose the form of education which is both suitable for the child and consistent with their own cogent philosophy. However, the proposed new CME guidance will undermine those EHE guidelines AND it either will, or is likely to conflict with other statute ie: Protocol 2 Articles 1 and Section 1, Article 8 of the European Convention for Human Rights, Sections 7, 9 and sections 436a and 437a of the Education Act 1996 (see also Education and Inspections Act 2006) and section 11 of the Children Act 2004.

 

 

For example, at section 1.2.2. the draft guidance on identifying children missing from education states that

 

 

"The new section 436A requires all local authorities to make arrangements to enable them to establish (so far as it is possible to do so) the identities of children residing in their area who are not receiving a suitable education" which twists the original intention of the 2006 Education and Inspections Act beyond recognition. The original intention of the Act was to identify children not in *any* educational setting. It was NOT to overturn the presumption that home educated children should be assumed to be receiving a suitable education unless there are indications to the contrary.

 

 

The existing 2007 Guidance is, at least, partially redeemed by the inclusion of section 1.2.6.

 

 

"The duty does not apply to children who are being educated at home. Monitoring arrangements already exist for children being educated at home. Parents have a duty to ensure that their children receive a suitable full-time education either by regular attendance at school or otherwise (under section 7 of the Education Act 1996) and they may choose, as is their right, to provide this by educating their children at home."

 

 

Although unclear, this at least suggests that monitoring for suitability is not the remit of this (2007) guidance. Further clarification would have helped at this point. There should at the very least have been a clear reference to the Elective Home Education guidelines 2007, which might help LAs to behave with due respect for the law, and with an understanding of how to achieve a balance with regard to respecting the privacy and rights of families.

 

 

In summary, any new guidance on CME should as a minimum make clear reference to ECHR Protocol 2 Article 1 and Section 1 Article 8, Sections 7 and 9 of the Education Act, the Elective Home Education Guidelines 2007 and to the above case law and even though it is clear that some LAs have abused the 2007 guidance and ignored section 1.2.6, omitting this wording from the proposed new guidance is an invitation for hostile LAs to begin, continue or step-up abuses of home-educating families

 

 

 

2

Does the guidance make clear the role that implementation of this duty has in the wider programme of work led by local authorities to improve outcomes for children and young people, including promoting their safety and well-being?

 

  Yes

No

Not Sure

No Response

Answer/Comments

No, it does not. Even the above question is completely misleading as it suggests that LAs have a duty to improve outcomes for children. Presumably this is an attempt to refer to the duties and "outcomes" enshrined in Every Child Matters initiative. This suggestion is repeated many times in the proposed guidance, (eg: see sections 1.1.2, 1.1.3, 1.1.5, 1.1.6, 1.2.2 ), but is unsupported in law and as such will only serve to confuse LAs, suggesting they have a duty to intervene at a much lower level of risk, or where there is no risk - in effect to appropriate the role of parenting.

 

According to Section 10 of the Children Act 2004, which provided the legislative spine for the Every Child Matters initiative, LAs do not have a direct duty to improve outcomes for children, for to do so would be to appropriate the role of parenting to themselves. LAs only have a duty to co-operate with other statutory organisations and other relevant partners to promote these aims. They have no duty to intervene in parental provision within families unless there are clear indicators for concern either about welfare or about the lack of provision of an education. Yet all of the above-mentioned paragraphs are sufficiently ambiguous to allow LAs to think that they have a duty to ensure that they intervene with families to improve

 

the five ambitions as enshrined in the Every Child Matters initiative. This would mean that the level at which an LA would deem a child at risk would be significantly lowered.

 

 

The guidance needs to make it clear that the ECM and the Children Act do not frame the ideas about what children should achieve as outcomes that should or could be tested for and monitored by an LA, but rather as ambitions or aims that they try to facilitate through co-operation with the relevant agencies and that parents remain, as always, responsible for their own decisions in relation to their children, and the consequent outcomes for those children.

 

The guidance repeatedly fails to make these distinctions clear. It is very likely to mean that LAs will think they have a duty to be far more interventionist in the lives of perfectly well-functioning families as they set about making sure that all families reach government-dictated standards and in the process make it much more unlikely that these families will actually manage to generate successful outcomes. As already described, intervention by State agencies into the lives of healthy families has a detrimental effect upon them.

 

 

Government should look at their own past record of intervention in the matter of trying to improve outcomes for families. The results are regularly outstandingly poor. There are very dubious results from the massive investment that is the Sure Start scheme: http://www.guardian.co.uk/society/2006/jun/16/childrensservices.earlyyearseducation. Toddlers in nursery schools end up with aggressive behaviour: http://www.timesonline.co.uk/tol/comment/columnists/guest_contributors/article1625719.ece. Huge numbers of children in schools do not receive a suitable education: each week, 450,000 children are bullied in school. Each year: more than 360,000 children injured in schools, at least 16 children commit suicide as a result of school bullying, an estimated 1 million children truant and more than 1 in 6 children leave school unable to read, write or add up. On the basis of this record, the guidance should be making it repeatedly clear that LAs only have a clear duty to intervene when families are very troubled and children are seriously at risk,for their intervention will prove expensive, and often at best useless or at worst frequently damaging.

 

There is no statutory duty for LAs to investigate or monitor home educators. Home provision should be assumed to be suitable education unless the LA has positive indications that it is not. This is the only position which can be supported by Statute.

3

Does the guidance accurately describe the range of circumstances that put children's safety at risk and puts them at risk of not receiving a suitable education?

Yes

No

Not Sure

No Response

 

Answer/Comments

 

The guidance only serves to confuse on this point for a number of different reasons. For a start, by using broad categorisations of children who may be at risk, children who are genuinely at risk (eg: of not receiving a suitable education) but who do not fit the categories (eg: school children) will not only be missed, but thousands of others who do fit the categories but who are coping well, will be investigated, with all the unnecessary expense and damage to families that this will entail.

 

The DCSF and LAs need to remember that they may not discriminate against minority groups on the basis of religion, ethnicity, race or ANY OTHER CRITERIA INCLUDING ETHOS AND EDUCATIONAL PHILOSOPHY. Therefore, just as it is rightly unacceptable to assume that children are at risk of missing education because their parents are black or gay or Muslim etc, it is EQUALLY UNACCEPTABLE to assume that children are at risk of missing education because their parents are philosophically opposed to schooling. Oppression of a minority group because of it's views on state provision strays into totalitarianism and will NOT be tolerated by home educators.

 

The factors which lead to a child becoming at risk of poor outcomes or harm are an incredibly complex interplay of socio-economic factors with the dynamics of each unique family. In trying to simplify a complex and specialist area into a lay-person's checklist the guidance almost guarantees that LAs will concentrate their efforts on easy targets such as home educators who are wrongly implicated by such a checklist. This will not only damage healthy families but lead to genuine cases being missed entirely.

 

Then there is the problem that this guidance is frequently misleading (see answer to Question 2), about what risks and therefore about what circumstances that could lead to the risk, it is meant to be tackling. For a start, is the guidance about finding out the *educational setting* of the child, (as the paragraph on the exemption of school children from the CME duty seems to suggest), or is it about assessing children out of school for *suitability* of education as paragraphs on home educated children would seem to suggest?

 

We also believe that there is a problem with including the safeguarding duty in with the duty to find children missing from education. The guidance will be predominantly used by CME teams. It is not aimed at social workers. It will be parents and children who will have to suffer the consequences of having untrained assessors making wild guesses on the basis of broad categorisations about all kinds of risks to children and about what to do about it, and this is highly likely to increase the problem of unjust intervention from the state. Indeed we suspect that we have already seen more of such instances of this problem (see answer to Question 1).

 

Section 437 of the Education Act 1996 makes it clear that the Local Authority has a duty to act if it has reason to believe that a suitable education is not being provided. However, the burden is framed in the negative. It does not impose a duty on LAs to assess the suitability of each child's education. For the government to introduce such a duty would undermine the "fourfold foundation" of education law described and affirmed by Lord Adonis in a letter to Lord Judd, dated 13th October 2006, during the passage of the Bill which eventually introduced section 436A into the 1996 Education Act.

 

Lord Adonis quoted with approval the judgment of Lord Bingham in the Ali case (Ali v Lord Grey School 2006 UKHL 14) when he said:

 

"This fourfold foundation has endured over a long period because it has, I think, certain inherent strengths. First, it recognises that the party with the keenest personal interest in securing the best available education for a child ordinarily is, or ought to be, the parent of the child. Depending on age, maturity and family background, the child may not share that interest. But the parent has a statutory duty. Secondly, the regime recognises that for any child attending school it is that school through which the education provided by the state is in practice delivered. The relationship between school and pupil is close and personal: hence the restrictions on its interruption or termination. It is a relationship resembling, but for the want of consideration, a contractual relationship. But, thirdly, the regime recognises the need for a safety net or longstop to ensure that the education is not neglected of those who for any reason (whether 'illness, exclusion from school or otherwise? are not being educated at school in the ordinary way. It is plainly intended that every child of compulsory school age should receive appropriate education in one way if not another, and that responsibility rests *in the last resort* with the LEA."

 

We believe that the government did not intend to overthrow this well established legal regime by giving local authorities duties and powers that go beyond the "safety net or longstop" role described here. The duty introduced by Section 436a must therefore not be interpreted as a positive duty to assess the suitability of the education provided to all children.

 

And yet, the CME guidance frequently (particularly with reference to home educated children) suggests and certainly does not rule out that those parents with children outside the school system should be subjected to a test for suitability of educational provision. Whereas school children are unjustifiably assumed to be in receipt of suitable education, home educated children are unjustifiably assumed not to be. Thus this guidance directly contravenes sections 7,9 and 437 (Ed Act 1996) and the Elective Home Education Guidelines. Should LAs attempt to implement them they would be acting illegally. LAs currently enjoy high levels of voluntary cooperation from home educators, which will be withdrawn if the guidelines are implemented.

 

If LAs and not parents are to become responsible under the new guidance for ensuring that all children receive suitable education, they would then also become legally culpable in the event that any child failed to receive such education *regardless of educational setting*

 

It would be far better if the CME guidance included paragraphs from the Elective Home Education Guidance, particularly Section 2.7 which states that LAs have no statutory duty to monitor home education on a regular basis and that LAs only have a duty to intervene when it appears that an education is not being provided. This negative duty, (only to investigate when there is an appearance of failure to provide an education, rather than to positively assess for all educational suitability) properly reflects sections 437 and 7 of the Education Act which makes it clear the educational provision is a legal duty of parents not LAs and that the legal duty of LA is limited to those cases where parental failure is in evidence. This clarification could, for example, be usefully added to section 1.2.7 of the proposed CME guidance.

 

Under the proposed CME guidance there would also be the problem that the application of differing standards of judgment to different groups on the basis of broad categorisations may contravene anti-discrimination laws, such as the Equality Act 2006, which resulted from the government's white paper "Fairness for All: A New Commission for Equality and Human Rights" in which it is stated that "people's ability to achieve their potential is not limited by prejudice or discrimination". Discrimination against the nominated groups in the CME guidance results not only from the fact that they are labelled as being vulnerable, but also from the fact that it seems that they are to be subjected to far higher levels of scrutiny than another broad category of children, ie: schooled children, and this when it is far from clear that this scrutiny is merited.

 

 

4

 

Does the guidance show effectively what steps local authorities should take when children are living in difficult circumstances that put them at more risk of not receiving a suitable education?

 

Answer/Comments

 

No.

 

Comments:

The guidance is frequently ambiguous, failing to clarify many points of procedure, or simply omitting any attempt at clarification.

 

Many of the steps that the LA are required to take are dependent upon having databases which run efficiently and do not have any security problems. We are far from convinced that any database is or ever will be free from such problems, (see: http://tinyurl.com/46huln) and indeed may put children's safety at further risk, for example, it may expose them to the problems of identity fraud,(see: http://archrights.wordpress.com/2008/10/11/database-debacles/), or they may become a target for hackers given their celebrity status, or they may be put at further risk from abusive adults.

 

Yet the guidance fails to clarify how it will prevent problems of data insecurity or how LAs are going to manage to identify those children who will be put at significant further risk by inclusion on the database, and who would therefore be exempted from inclusion. Further, there is no clear guidance on how ContactPoint will actually be used to further the CME identification initiative. This seems to be left pretty much to anyone's guess.

 

Overall in this regard, we do not think that the caveat in section 2.2: "Are there clear access rules and procedures to ensure fair/safe data processing?" is in any way sufficient as a way of solving these problems.

 

Generally speaking, the guidance is completely confusing as to what to do and when to do it. It skips about all over the place and will have the negative effects of allowing LA officials to think they have duties when they do not have them, and to interpret these duties pretty much how they like. For example: the guidance is confusing as to what the LA should do even before the point at which it is clear that they have identified a child that is living in a difficult circumstance. The list at section 2.3 serves as an introduction to the course of action for LAs. It states that the target of the action is any child (not in school) about whom information has been received. The precise nature of this information is not delineated and would therefore imply that any child (outside of school) may be subject to the processes, eg: the determining of the child's needs, the monitoring of attendance for provision etc, whether or not it has actually been established that they live in difficult circumstances. This strongly suggests that all children out of school will be subject to state monitoring, that their education must, in effect, be subject to standards imposed by the state.

 

Of course, this represents a huge constitutional change. In effect it will mean that parents, all parents everywhere, can no longer be deemed entirely responsible for the education of their children. Indeed, when it states at 2.3 that the state must determine a child's needs, and ensure that these needs are meet, whether or not it has been clearly established that there is a significant difficulty, it would appear that parents are no longer responsible for meeting any of their children's needs.

 

Tis section of guidance will need to be entirely re-written to avoid the problem of suggesting that the state should act in loco parentis. It should be clarified that the state only has responsibilities when it is clear that parents are seriously failing to fulfill their parental duties.

 

Further on the issue of causing confusion: Section 3 of the guidance sets out to describe those children who are deemed most at risk of missing education, yet within this list it states that these include "children whose parents withdraw them from school in order to home educate them but then fail to provide a suitable education." This is a circular definition and is just plain silly. If it has been established that a child is not receiving a suitable education, then they are clearly not in the "at risk" of not receiving suitable education category. This makes a mockery of the idea that this document constitutes "guidance". It merely serves to confuse. It fails to make it any clearer as to the stage at which the action plan at s2.3 is

 

to be implemented. Should it be when information is received about a home educated child (even though this would clearly require massive constitutional change), or should it be after it has been established that there could be some reason to think that a child is not receiving a suitable education, (other than merely the fact of being home educated), or should it be when it has been firmly established that the child is missing an education?

 

Frankly it is a slur upon home educating parents to infer or assert that withdrawal from school to home educate is an indicator of risk of not receiving suitable education. There are already established procedures surrounding the deregistration of a child from school. If at the point of deregistration, there are genuine concerns that a family is not going to be able to provide a suitable education, or that a child is at risk of some other problem such as forced marriage, an alert to the LA from the school at this time should be sufficient to prevent the child suffering such a fate. Of course the schools should be clear that this is only necessary in the situation that they have genuine concerns. This would seem a far more effective method of pin-pointing genuine problems than an all-embracing, money-wasting exercise that is proposed, both with this guidance and the ContactPoint database.

 

For clearer guidance with regard to how to proceed with home educated children, the DSCF should examine the processes and order of action that are described in the 2007 Elective Home Education Guidelines. This way, the DCSF would avoid the problems of the contravention of Sections 7 and 9 of the Education Act, and the overriding of privacy of families (see Article 8 of the European Convention on Human Rights). The EHE guidelines state that LAs should have a senior officer who is trained to understand and respect the wide diversity of educational philosophies applied by home educating families, and who is well versed in the law in this area. Officers dealing with Children Missing Education should be advised to pass on to that officer contact details of families not previously known to be home educating. CME policy does not need to include any procedure for assessing the suitability of home education provision - it should just be about identifying the place of education for each child.

 

The actions needed to address many of the issues - such as risk of trafficking or forced marriage - raised in this consultation are complex, expensive and beyond the scope of LAs. This means that LAs will inevitably concentrate their efforts on soft targets such as home educators and will without a shadow of a doubt use such guidance as an excuse to impose home visits and school models of education upon families.

 

 

5

 

What are the key challenges local authorities could face to implementing these guidelines effectively?

Answer/Comments

 

These guidelines would apparently give LAs the responsibility that is currently held by parents.

 

Paragraphs 2.3 and 6.1 state that the LA should:

 

· log child’s details on database;

 

· locate and contact family;

 

· determine child’s needs;

 

· identify and access available provision and places;

 

· monitor attendance for all provision; and

 

· track and reconcile movements."

 

So for all children at all times, the LA is to usurp duties which currently belong to the parent? For example, without clear due cause, they are to become responsible for assessing a child's needs and accessing provision to meet those needs? Presumably various laws will be re-written to remove from parents the duties that they no longer have to fulfill?

 

Plus, in appropriating parental responsibility to ensure that an appropriate education is provided, presumably families will have call upon the state when it is clear that the state provision is not adequate. We could expect to see more cases along the lines of Phelps v. the Mayor of Hillingdon:

 

http://www.parliament.the-stationery-office.co.uk/pa/ld199900/ldjudgmt/jd000727/phelp-1.htm

 

We would suggest that another of the key challenges will be those of staffing, (insufficient manpower as well as expertise), budget and time to carry out such a large task.

 

Another key challenge is likely to be that this guidance is not what is purported to be about. It is not really about protecting children but about pandering to LAs, teachers' unions and other bodies that have a vested interests in school attendance and in perpetuating job-generating interference with home educators. It does this by giving LAs the green light to harass and bully home educators.

 

If this guidance is passed and results, as we predict, in further harassment of home educators, this will certainly result in a withdrawal of cooperation by the home educating community and, indeed, by the home educated young people themselves.

 

 

6

Does the guidance make clear the duties and powers that local authorities have in relation to home educated children when parents are not providing them with a suitable education?

Yes

No

Not Sure

No Response

 

Answer/Comments

 

Home Educated children are not a legitimate target group of the Duty to Identify Children Missing Education. Including Home Education in this guidance is defamatory, dishonest and will lead to abuses by LAs which will result in home educators withdrawing goodwill and cooperation with LAs.

 

There should be a paragraph along the lines of the one in the 2007 Guidance, but with additions.

 

We suggest:

 

"The duty does not apply to children who are being educated at home. Please see the Elective Home Education Guidance 2007 for details on how to proceed with regard to home educating families. It is essential that Local Authorities observe the correct procedure and do not appropriate Parental Responsibility. Parents have a duty to cause their children to receive a suitable full-time education either by regular attendance at school or otherwise (under section 7 of the Education Act 1996) and they may choose, as is their right, to fulfil this by educating their children at home. Local Authorities should only intervene when it appears that an education is not being provided."

 

Many home educators are justifiably angry that LAs have long lobbied Government for a means to bypass the SAO procedure and the inconvenience of needing such evidence as would satisfy a Court before being able to impose school attendance on home educated children. The new guidance is a charter for hostile LAs to bully and harass families into returning children to school purely on the basis of institutional prejudice. Oversight by the Courts, of State intervention into family life is an essential safeguard that will, for all practical purposes, be written out of existence by this new guidance.

 

 

7

Does the guidance contain all the 'signposts' to other relevant guidance; sources of support and advice for local authorities that will enable them to implement this duty effectively?

Yes

No

Not Sure

No Response

 

Answer/Comments

 

Not only does it not properly signpost to other relevant guidance, it actively contradicts statute - the Education Act 1996, the Education and Inspections Act 2006, the Children Act 2004 and the Elective Home Education Guidelines 2007.

 

Guidance and guidelines cannot over-write statute. The fact that the DCSF is trying to do just this demonstrates a woeful understanding of the relevant statute and guidance and a poor, or perhaps selective, memory for history. We have been through this whole process only a couple of years ago. Repeated assaults on home educators such as this early re-write of CME guidance place a massive burden on parents who are already fully engaged providing full-time education for their children. This new guidance is yet another unwelcome distraction from the business of educating our children and many home educators are particularly resentful of the fact that their sustained hard work and contributions to the 2007 guidance and the EHE guidelines have been obliterated by the version under consultation. The disrespect for current statute, the failure to consult with principal stakeholders (ie: home educators) in the pre-consultation phase, and the failure to inform home educators of the consultation until a very late date, despite many individuals and groups having left requests with the Department to be informed of all relevant consultations, will form the basis of AHEd's complaint to the Better Regulation Executive.

 

We think that the Department would have been well advised to have consulted their legal department about the foreseeable problems with the guidance, including the seismic constitutional implications of the appropriation of Parental Responsibility. Where guidance on identifying children missing an education touches on home education it is sufficient simply to refer LAs to the published guidelines on elective home education which both DCSF and WAG have produced. No further guidance is needed nor is it helpful.

 

 

8

Beyond the publication of the guidance, what would be the most effective means of communicating the importance of implementing the new duty, and the processes that will help its implementation, to professionals working with children?

 

Answer/Comments

 

AHEd is baffled by the reference to a new duty. No new duties exist. References to a new duty are, we contend, merely a smokescreen for new guidance which is itself simply a response to sustained LA lobbying to be provided with alternatives to the SAO procedure which do not have the inconvenience of being subject to Court oversight. The reason that the guidance is unworkable, and in parts completely nonsensical, is that is a fudged attempt to mollify LAs with the appearance of a jurisdiction over home educating parents which has absolutely no basis either in law or in existing guidance.

 

 

9

Have you any details of good practice that would be useful to include in the final version of the 'guidance'?

Yes

No

No Response

 

Answer/Comments

 

If the DCFS stopped encouraging LAs to oppress and bully home educators perhaps there would be something to write in this box. Sadly there isn't. LAs are universally failing to engage with home educators in the manner that home educators require of them. This is something you need to address, not encourage with badly drafted guidance like this.

 

 

 

10

Did you find the draft guidance clear, unambiguous and easy to follow?

Yes

No

Not Sure

No Response

 

Answer/Comments

 

Soley on the grounds that the draft guidance misrepresents the law alone, AHEd would have to answer NO.

 

However, this is also an extremely ambiguous and convoluted document. It does not explain clearly why it has been drawn up and much of the argument consists of of a rather bizarre reversal of cause and effect.

 

For example, from paragraph 1.1.4:

 

"Children not receiving a suitable education...are at significant risk of becoming NEET (not in education, employment or training) once they have reached the compulsory school leaving age." This is ridiculous – by definition, these children are already not in education. It would make more sense to say that “Children not receiving a suitable education are clearly at risk of not attaining the skills and qualifications they need to succeed in life, and are at significant risk of being unable to find employment once they have reached the compulsory school leaving age.”

 

"Children not receiving a suitable education ... are more likely to be vulnerable in one way or another." This may be true but the construction implies a causal relationship which is actually the inverse of the actual relationship - “Children who are vulnerable in one way or another are more likely to be at risk of not receiving a suitable education.”

 

"Children not receiving a suitable education ... may be at risk of neglect or abuse or disengaged from education." By definition, these children are already disengaged from education! No causal relationship can be established between not receiving suitable education and being at risk of abuse. However, children suffering neglect or abuse would almost certainly be at risk of not receiving suitable education. It would appear that these causal relationships been deliberately inverted to mislead and panic LAs into believing that home education is a high risk for non-receipt of education and, by extension, neglect and abuse.

 

 

11 a)

We have developed standard data definitions at Appendix 1 of the guidance.  These were developed in consultation with several local authorities.  Do you agree with these definitions?

Agree

Disagree

Not sure

No Response

 

Answer/Comments

 

Since home educators are a major stakeholder in this consultation and the group most likely to be adversely affected by the draft guidance, it rather begs the question as to why home educators and members of other minority groups likely to be subject to the institutionalised prejudice of LAs, such as the gypsy, Roma, traveller community for example, have not been consulted about the development of these data definitions. The definitions as they stand embody the prejudice of LAs against alternative education and have not been balanced by any contributions from the alternative education community. Where the definitions are not prejudicial and discriminatory they are simply nonsense. For example:

 

The national definition of children who are not receiving a suitable education is as follows: “A compulsory school-age child who is not on the roll of a school, not placed in alternative provision by a local authority, and who is not receiving a suitable education at home”.

 

This is an entirely circular definition "A child who is not receiving a suitable education is a,b,c or a child who is not receiving a suitable education"!

 

It would be better to simply use a definition derived from section 7 of the Education Act 1996. "A child is not receiving suitable education if he/she is of compulsory school age and is not receiving efficient full-time education suitable to his/her age, ability and aptitude and to any special educational needs he/she may have, either by regular attendance at school or otherwise."

 

 

11 b)

If not, what amendments would you suggest and why?

 

Answer/Comments

 

We'd suggest a complete re-write of the data definitions following a proper consultation in which stakeholders have been properly identified and engaged with.

 

The national definition of children who are not receiving a suitable education should be as follows:

 

"A child is not receiving suitable education if he/she is of compulsory school age and is not receiving efficient full-time education suitable to his/her age, ability and aptitude and to any special educational needs he/she may have, either by regular attendance at school or otherwise."

Comment re Title:

 

First, this draft should have been clearly labelled as a draft. AHEd and other home educators have warned and had cause to complain on previous occasions about the misuse of draft documents by over-enthusiastic LAs.

 

Second, it is glaringly apparent that the word "suitable" has been brought to the fore in this revision by including it in the title. It has, at least since 1944, been a requirement of the Education Act that a child of "compulsory school age" (that label being a misnomer) should be caused to receive a "suitable" education.

 

This new prominence being given to the word, tied in with the content of the revised draft, makes it clear to AHEd that a major unstated aim of this statutory guidance is to insist that LAs must directly assess the suitability of education. Coupled with the prejudiced assumption that attendance at a school/approved educational activity equates with receipt of a suitable education, which is emphasised by the discriminatory nature of the new Section 436a of the Education Act 1996, it is clear that the assessment of suitability is aimed only at Elective Home Education.

 

AHEd members strongly object to this discrimination and will not accede to these 'back-door' attempts to monitor and regulate Elective Home Education which should be given at least the same respect as school education.

comments re 1.1.1:

 

Saying "wide agreement" is ambiguous and misleading as there is also "wide agreement" with contrary lists. Not everybody agrees with this list! How does the DCSF know that there is wide agreement on this point? For many of us in the home education community, children's freedom to make their own choices in life is more important than that they should necessarily aspire to "economic wellbeing" (whatever that is). When you think about it, saying "children should be healthy" is offensive and meaningless for the families of children who are living with ill health.

 

It is also a meaningless statement in the absence of agreed definitions of those terms. What one may consider safe, another may consider overprotected whilst another considers it risky. What one considers economic well-being may be another's idea of poverty and another's idea of being a slave to the state economy.

 

The Children's Act does not phrase these ends as outcomes, but rather as ambitions. The phrasing is significant because the term "outcome" suggests that children have to meet these ends, when the phrase "ambition" suggests that they should simply be striving towards these ends. The term "outcome" also suggests that children could be assessed (however subjectively) for whether they have met these ends, rather than whether they are working towards it.

 

It cannot be for the state to assume responsibility for children's "outcomes" - that is the parent's responsibility unless and until a parent fails in that role. Any government that took on the responsibility of assuring those outcomes would be wide open to mass litigation.

comments re 1.1.2:

 

It seems to be lost to many public servants that when one speaks of "services" these are services to taken up or otherwise, depending on the free choice of the public. The notion of "service refusal" seems to have seeped into the vocabulary of government and is a hardly disguised term that infers that opting not to avail oneself of a public service is a sign of dubious behaviour that must be challenged and scrutinised. If we lived in a communist state this would not be notable, but we live in a supposed democracy where the word "choice" is supposed to be a reality and not just a choice between doing what government would prefer or subjecting oneself to humiliating mistrust, scrutiny and slander.

 

A child in the UK is still the foremost responsibility of his or her parent and it is for the parent to decide whether they require state services, whether they be education, immunisation, health visitors, hospital delivery suites or any number of other services. The state remains a parent of absolute last resort. The state has an appalling record on being the parent of first resort, yet sadly this guidance and others like it appears to ignore this fact and set up the local authority as judge and executioner on a subject at which they fail miserably themselves.

 

This guidance should be abandoned, but should it persist, this section should at least honestly reflect the voluntary nature of choosing to use public services and the limitations placed on LAs re identifying children not receiving a suitable education. The LA's duty is to take reasonable measures and not to take exhaustive measures to establish the existence for a child of a suitable education which would far too onerous given the number of children and the likelihood that an extremely high percentage of those regularly attending a state school are not in receipt of a suitable education as defined by the education Act 1996 section 7. It would of course be discriminatory only to investigate the personal education of children whose status is identified as EHE, especially in light of the research that shows that this particular group is actually statistically more likely to be receiving a suitable and efficient education than their schooled counterpart.

 

LAs also tend to have a one size fits all, unimaginative idea about what constitutes a "suitable" education. Perhaps it is laziness that makes them rely on the school model as the gold standard rather than actually applying common sense and logic to the individual child's needs as the Education Act 1996 actually requires. After all, a child born into a traveling family will have very different needs to one born into royalty - and stupid as it seems, the LA still apply the same "suitability" criteria to both children - ie - does their education look like that we supply in state schools? - despite the reality that neither of those children would be well served by the bland menu of a state National Curriculum.

 

AHEd members have much more imagination and are insulted by the government's idea that the LA have enough experience to judge elective home education, the inference that children not in school are children "at risk" (as if that term means anything), and the blurred edges willingly painted by government that conflate state failures re children such as Victoria Climbie, the West children, the Spry adoptees, the Jersey care home children, Khyra Ishaq and others with home education - pure slander. Note, the state already had sufficient powers to investigate concerns, detect problems and in most cases had sufficient information to have dealt efficiently with these cases. The fact that they did not do so comes down to poor judgement calls on the part of the professionals involved and does not require changes in legislation via the back-door, (as would be the case with this proposed guidance).

 

There is too much rhetorical emphasis on words like "prevention", "missing" "at risk" etc., in a document that is supposed to be primarily about education. These are deliberately emotive words that serve to castigate those persons who do not fit the ideal government model of a schooled child with maximum attendance - irrespective of the results that such a formula produces. It doesn't take much intelligence to see that this sort of guidance and policy is designed to create the particular percentage of educational failure that produces the best docile workforce and the least dissent - hence the need to be so overbearing upon those who do not wish to follow the formula such as Travelers and Home Educators.

comments re 1.1.3:

 

No-one will read this section and see any value in it. It is boring eduspeak designed to fill out a document and pay lip service to perceived obligations.

 

It is also nonsense;given that the response of the LA, to finding a child not receiving (in their opinion) a suitable education, is to do their level best to get said child into a school, and given stats on state school failures, it is clear that the remedy is ill thought-out and "at risk" of damaging children severely.

comments re 1.1.4:

 

First - it is is MUCH harder for a child out of school NOT to receive a suitable education than the government imply.

 

Second - it is much harder for a child IN school to receive a suitable eduation than the government imply.

 

Therefore this whole section is based on a false premise - that school attendance = education receipt.

 

If, before reading this section, one sets in ones mind the child who goes to school every single day, but cannot engage with the lessons provided - as a child not receiving a suitable edcuation - what would this section mean?

 

It would re-read...

 

" a child who regularly attends a state school which fails to engage with his particular, personal educational interests and abilities which are not covered by the National Curriculum, is clearly at risk of a range of negative outcomes that could have long term damaging consequences for his life chances. He is at risk of not attaining the skills and qualifications he needs to succeed in life, and at significant risk of becoming NEET (not in education, employment or training) once he has reached the "compulsory school" (misnomer) leaving age. He is also are more likely to be vulnerable in one way or another. He may be from a disadvantaged school, (experiencing multiple risks such as poverty, substance misuse, teacher mental ill-health and poor buildings)... or be at risk of neglect or abuse (see AHEd's wiki page on abuse by school staff) or disengaged from education. "

comments re 1.1.5:

 

There is an unnecessary conflation of education and safety issues here. This is typical of the underlying language that slanders the whole Elective Home Education community and against which AHEd members will vehemently fight.

comments re 1.1.6:

 

In whose terms/by what criteria, has that practice been demonstrated to be "effective"?

 

Has that "demonstration" of effectiveness been subject to audit?

 

Is it policy to pursue effectiveness at all costs, including disregard of human rights? If not, why are home educators' human rights diregarded and violated in pursuance of this duty?

 

How can guidance that promotes ultra vires processes be said to be reflecting effective practice?

 

For example,

 

Section 10(3) of the Children Act 2004 states:

 

"In making arrangements under this section a children’s services authority in England must have regard to the importance of parents and other persons caring for children in improving the well-being of children.",

 

AND

 

Section 7 of the Education Act 1996 is unequivocal in its provision for parents to have responsibility regarding ensuring the suitability of education for their children.

 

yet this guidance infers an inferior role for parents and superiority of LA power and opinion regarding suitability of education.

comments re 1.2.1:

 

DCSF and LAs must be extremely careful to make sure that any interpretation of section 436a in this guidance does not contradict section 7 or section 437 of the Education Act 1996 or the earlier produced and publicly consulted Elective Home Education guidelines for Local Authorities.

 

ie the guidance MUST NOT conclude that the duty to

 

"establish (so far as it is possible to do so) the identities of children in their area who are of compulsory school age but—

 

(a) are not registered pupils at a school, and

 

(b) are not receiving suitable education otherwise than at a school."

 

gives them any new duty once establishing that the child is EHE, to investigate the education further than Section 437 requires.

 

ie that in the ABSENCE OF information to the contrary, the LA has a moral duty to assume that the parents are fulfilling their duty under section 7 of the Education Act 1996.

 

Section 11(2) of the Children Act 2004 states:

 

"Each person and body to whom this section applies must make arrangements for ensuring that—

 

(a) their functions are discharged having regard to the need to safeguard and promote the welfare of children;"

 

ie the LA's current functions are to be discharged thus. There is no "new" function created regarding the need to safeguard and promote the welfare of children.

 

Failure to recognise the primacy of parental jurisdiction over education mode and method, content and curriculum, place and purpose for their own children would be contrary to Human Rights legislation, English Statute and moral imperatives.

 

In particular, any contradiction with current statute would render the guidance impotent in legal argument.

comments re 1.2.2:

 

It seems pointless to include this section without a precis of what the driving factors are because unless the reader has prior knowledge of these three issues the section is meaningless; the reader cannot possibly know whether this guidance meets the aims.

comments re 1.2.3:

 

There is a VERY important point that needs adding to this section in order to prevent the LA leaving themselves open to litigation and to protect home educating parents and children from abuses of their Human and Statutory rights:

 

Although Section 436A (inserted into the Education Act 1996) refers directly to children not registered at a school, the LA must not apply prejudice or discrimination when "establishing" that a child is in receipt of a suitable education. When a child IS registered at a school it is assumed that those with front line responsibility for the education - the teachers and the school - are ensuring receipt of a suitable education; the parents, who still have legal responsibility, are not individually pursued to establish suitability or receipt. Therefore once it has been established that a child is home educated it MUST be assumed that those with front line responsibility for the education - the parents - are ensuring receipt of a suitable education, unless proper evidence has been brought to the attention of the LA that this is in real doubt. To do anything other would be direct discrimination.

comments re 1.2 4:

 

As with section 1.2.3 it is VERY important to make it clear in this guidance that, once it is established that a child is home educated, there MUST be a presumption of innocence - a fundamental basis of our legal system.

 

All LAs have learned about Lord Donaldson's judgement in 1980; Donaldson clouded the issue of the presumption of innocence by advising parents to respond to preliminary enquiries made by the LA, despite them having no legal standing. However, he did not give LAs carte blanche to define their own burden of proof. This means that once it has been established that a child is home educated, the LA MAY choose to make enquiries of the parent and MUST accept any form of evidence that the parent puts forward that would convince a reasonable person, on a balance of probabilities, that the child is in receipt of a suitable education as defined by section 7 of the Education Act 1996.

 

In other words, this guidance must not infer or instruct a system of establishing suitability of education by any other means or standards than the above.

comments re 1.2.5:

 

This section and others refers to the guidance being informed by the views of local authorities based on their experience of implementing their duty since the last guidance document in Feb 2007. Only prejudiced guidance can result from consulting a limited interest cohort. Why have other stakeholders not been consulted in the drafting of this guidance prior to this little advertised public consultation. Government's own policy insists that all stakeholders should be made aware and consulted in the early stages of production.

comments re 1.2 6:

 

It betrays the prejudice of government that they readily acknowledge that there are adequate procedures in place to deal with non attendance of those children registered at a school, but that they refuse to admit that s437 of the Education Act 1996 also already provides an adequate redress for children not on a register who do not appear to be in receipt of a suitable education.

 

There is only one reason why s436A has come about and why this guidance is trying to subtly slide toward an assessment of suitability outside of the court system; it is because LAs not only what to corral those children who are genuinely missing out on education, they also wants to corral those who are missing the type of education they prefer and they would seek to impose given a free hand. Allowing members of the public a free hand in the type of education they choose, feels unpredicatable and therefore a little un-nerving for government bodies so they feel the need to control it. LAs are aware that the vast majority of home education is indeed suitable as a court would define it. However, it does not always look like the sort of education that the LA are comfortable with; it does not always fit into their neat and limited definition of education; it is often beyond their educational understanding; it does not always produce the sort of maleable product they prefer.

comments re 1.2 7:

 

Word play. The LA has a duty to act if it apears to them that ANY child is not receiving a suitable education. They DO NOT have a duty to pursue home educators per se. Case law has established that the LA may make general enquiries of a home educating family, but it is not encumbent upon them or intra vires to routinely assess suitability. This is a gross misrepresentation of the facts designed to harrass home educators and which discriminates against them as section 437 of the Education Act 1996 is not about home education but about ALL compulsory education.

 

This really is a very simple example of the provocative language that is irking home educators to the point of defiance. The DCSF really cannot continue to pursue such arrogant lines of approach without causing major resistance. There is only so far that any minority group can be pushed into a corner before some walls have to fall and AHEd members are not willing to sit in any uncomfortable corners.

comments re 1.2 8:

 

This section muddles different issues and the effect is to discredit home education.

 

HE should not appear in the same paragraph as CAF.

 

Contactpoint is a highly discredited system that may yet not come to full fruition as it is fraught with data protection dangers so it is not useful to refer to it or rely on it.

 

If however DCSF insist on referring to it, it should be made abundantly clear that once a child is found to be home educated that a system for recording that fact needs to be established - and as yet that is not so - and that should be the end of any concern that a child is missing education and after any general enquiry that the LA may choose to make, also the end of any concern that a "suitable" education is not in place -unless there is REAL evidence to the contrary.

comments re 1.3.1:

 

So much space is wasted in this guidance with "fluff" - ie repeating the obvious - eg "Local authorities are responsible for meeting the requirements under section 436A. "

 

The effect is inevitably to cause the reader to glaze over and stop properly enagaging with real risk management.

 

All of the above points are covered elsewhere but the effect of this section is to "over-egg" the idea of "joining up", to imply a joint duty instead of the actual discreet duties and to over complicate simple statute.

comments re 1.3.2:

 

This is a very confusing statement. Like much of the document it is riddled with jargon and would not get past the Plain English Campaign.

 

It sounds like the DCSF are suggesting that no one particular dept has responsibility of identifying children missing education, but that all sorts of people should be adding it to their duties. This would be wrong because a) everyone will think someone else is doing it when it is possible no-one is doing it and b) people who know nothing about education will feel they have been given a power to look at education issues.

comments re 1.3.3.:

 

This list of people are not qualified to consider education issues. It does not require any inter-agency co-operation to establish whether a child is missing education. This duty is about "identifying" children not receiving a suitable education. The Education dept can surely manage this without reference to or from the Fire Service!

 

Charging these unqualified people with making judgements about education will lead to an exacerbation of the problem some home educators have already encountered of nosey people, who know nothing about educational alternatives or the legality of home education, raising an alarm about the educational position of children who are properly and legally home educated.

 

This risk would not be as great as it is, if the government could bring themselves to be honest and open about the truth that education is compulsory but school is not. Far too many people in the UK still have no idea that you don't have to send a child to school. Given this shameful truth coupled with this cross agency info sharing encouragement and the general "spy on thy neighbour" culture being promoted by government, home educated children will be increasingly harrassed.

comments re 2.1:

 

It is not the duty or the right of any Children's Trust to provide an education for any child not in state care. This should be worded to recognise that it is the parent's duty.

 

This section als assumes a link between safety, well-being and education. It is perfectly possible for a child to be safe and well but not in education - unless of course DCSF are of the opinion that no-one prior to compulsory education was safe or well. Therefore there should be no automatic "partner" agency triggers. A child temporarily missing education because of school placement problems does not need their reputation or self esteem tarnishing by being referred to (for eg) social services - or the Fire Service.

comments re 2.2:

 

What this section highlights is the confusion and discrimination pervading this whole document and moreover, pervading the whole policy of identiying children not receiving a suitable education.

 

If DCSF/government had stuck to the words "children missing education" (CME) it would be slightly less problematic. However, in an effort to use this policy as a back-door introduction to monitoring home education, the use of the words "not receiving suitable education" are utilised. This not so subtle attempt at justifying assessment of the suitabilty of home education raises the question -what about the "suitability" of school education?

 

Previously it was a clear decision - is the child in school or home education? - yes - then they are not CME - No - then they are CME. Now DCSF are trying to change that exchange to - is the child in school education - yes - OK s/he MUST be in receipt of a suitable education - is the child home educated - yes - then we had better make sure it is "suitable" education. Clear discrimination.

 

All of section 2.2 makes the assumption that school attendance = suitable education. It also assumes that when a child is missing from (any) education (ie the previous understanding of CME), that getting them to attend school is the only remedy. It is the experience of AHEd members that quite often a child who does not find school suitable may purposely become a CME. It would be much more appropriate for those charged with "helping" these children to genuinely help them and give them full and proper information about alternatives to school, especially elective home education.

comments re 2.5:

 

Section 2.5 advocates consistency across LAs. This contradicts section 2.4 which advocates specific detailed arrangements that work best in individual areas.

comments re 3.1:

 

When considering reasons why children go missing from education the LA should use only evidence based criteria and not hearsay, speculation or faulty statisitics such as those presented to the Home Affairs Select Committee regarding forced marriage that led to erroneous assumptions about the extent of the problem and a non-existant connection with home education, and the ommission of the information that most forced marriage has nothing to do with children of compulsory school age.

 

It should also be reiterated at every possible chance that missing from school does not equate with missing from education and often means receiving an education much more "suitable" for a particular child.

comments re 3.2:

 

Again, a reminder that school and out of school state provision are not the only means of receiving education.

 

This section should remind LAs that at any point a child may commence elective home education and that does not constitute missing education.

comments re 3.3:

 

This list should, to avoid judicial review of this guidance, include:

 

Children at schools that are performing poorly

 

Children whose parents register them at a school in order to educate them, but whose school does not provide an education suitable to the child's age, ability, aptitude and any SEN

 

Children at schools where they are bullied or otherwise compromised, making them unreceptive to the education being provided.

comments re 3.5:

 

Has this activity been assessed for Data Protection contraventions re MOD information?

comments re 3.6:

 

Prejudiced assumptions about what constitutes a suitable education may lead to more concerns about Gypsy, Roma and Traveller children missing education than necessary.

 

Local Authorities should make all Gypsy, Roma and traveller families aware of the option to home educate and of the true legal position about how this can be done. Information about home education support groups should automatically be offered. This type of education may be much more suitable to many of these children and would reduce the concerns about these children's educational vulnerability.

comments re 3.7:

 

Again, excluded children and their parents should be given proper honest information about Elective Home Education which could well be a more suitable education for these children who are obviously not finding school suitable for their needs. Again this would reduce the concerns about these children's educational vulnerability.

comments re 3.8:

 

as comments re 3.7

comments re 3.9:

 

There seems to be an extension of the duty here. What is the legal provision for identifying young people not in training or employment or identifying young people over compulsory school age not in education or training or employment?

comments re 3.10:

 

as comments re 3.9

comments re 3.11:

 

Why is it to be assumed that young people in custody are in receipt of a suitable education just because they are supposed to be?

comments re 4.1:

 

It is imperative that LA staff whose main role is school education based (often ex teachers employed as EWOs), that they are properly trained to understand what actually constitutes "education" and not to allow them to rely on their default position of school = education = school. To that end, any guidance about identifying children missing education should include detail of compulsory training for the staff involved, that covers educational diversity, cultural diversity, philosophical diversity, Statute and case law relevant to the issues and Human Rights.

 

Currently we have a situation where ignorance of these matters allows those poorly trained staff to make irrational judgements about the likelihood of a child receiving a suitable education - as witnessed by this guidance putting GRT children and EHE children on "automatic alert" as children at risk or vulnerable.

comments re 4.2:

 

It must be made clear that EHE is not per se a reason to have concern about a child's welfare. Although LA staff may not personally understand home education and/or may think all children should attend school, they must not let this personal deficiency or opinion affect their professional judgement.

 

As above - this risk could be limited by ensuring that all LA staff involved in identifying CME are properly educated about all styles of education including autonomous EHE.

comments re 4.4:

 

This is a terrible way of approaching the problem of children missing education. This sort of discussion has no place in guidance about education. First it makes a vital error in assuming that being in education reduces risk of abuse whereas it probably increases it. Second it implies that unrelated, older males are dangerous which is potentially slanderous and ignores the fact that most abuse is perpetrated by related persons.

 

And what on earth have cars got to do with anything?

comments re 4.6:

 

An urgent hospital stay for complicated appendicitis (for eg) may leave a parent too tied up to even think of letting a school know what is happening. It would be damaging to a child's recovery to have the family investigated for suspected abuse just because of a 3 week absence from school brought about by this illness. This guidance is too poorly constructed to prevent this type of thing happening when over zealous LA staff use tick box procedures and poorly worded check-lists.

comments re 4.7:

 

____Talking to a child's friends at school should be a last resort as it leaves the questioned child vulnerable to harm.

 

comments:

 

It would be outrageous to refer to social services on the grounds of 4.4

comments re 4.12:

 

It would not always be appropriate to inform social services when a sibling is involved with social services because the reasons may have no bearing on this child's experience and may be private to the other child.

comments re 5.1:

 

This section must make it clear that LAs do not have any legal provision to monitor home education or routinely assess for suitability the education received. They may, as Donaldson provided, make general enquiries if they wish to once they have learned that a child is EHE, but after that, unless they are in possession of proper evidence that on a balance of probabilities suggests a child may not be receiving a suitable education, they MUST assume that the education is suitable, much as they already assume that those providing a school education are in fact providing a suitable education.

 

Education is still the legal duty and responsibility of the parent and the legal right of the child (despite the duty around which this guidance is based) and those two have jurisdiction over education until and unless proper evidence comes to the attention of the state that the parent is acting illegally or the child's right is being denied.

 

Further, school attendance and exclusion sweeps should also be better managed and all staff involved properly educated about the rights of parents and of children educated otherwise than at a school. AHEd members are aware of travesties where children have been abducted, threatened, lied to, bullied, told their parents are lying and generally confused about their freedom to be outside of their home during school hours. LA staff must not assume/jump to the conclusion that a child on the street in school hours is a child missing or at risk of missing education.

 

If LAs and DCSF made the public more aware of the right to home educate, more people would do it, more LA staff would also be more aware of it and of its efficacy, it would be more of an automatic response to seeing a child out of school to imagine that they may be EHE not truanting and more people would be happy all round.

Comments re 5.2:

 

repetitive waste of space - readers will glaze over before reaching 5.2 as it is without 5.2 just repeating something that's already been said umpteen times.

comments re 5.3:

 

Parent Support Advisors must be instructed to inform all parents about their right to educate their children otherwise than at a school if the intention of ensuring all children receive a suitable education is to have any credibility at all.

comments re 6.2:

 

That named contact MUST have received a suitable education.

 

ie they MUST be aware of all approaches to learning other than the school model.

comments re 6.3:

 

as comments re 6.2

comments re 6.7

 

At all stages Data Protection issues must be considered and wherever possible consent to sharing must be sought.

 

This point refers to all sections of this guidance that refer to information sharing.

6.10 comments:

 

those conducting such sweeps MUST be instructed to leave EHE children to go unhindered once such a child has told them they are EHE - see other points on truancy sweeps elsewhere.

6.17 comments:

 

This second sentence is VERY misleading and does not reflect statute accurately. Section 437 of the Education Act 1996 couches this role in the negative. ie, it is NOT that the LA have to be satisfied that a parent is providing a suitable education, it IS that the LA must act IF they have proper grounds to believe that a child may not be in receipt of a suitable education. The emphasis creates a very different role and a very different experience for home educators. it also creates a very different balance of power and respect between the LA and the parent.

 

LAs must recognise and honour the supremacy of the parent in the education of the child. The LA must follow this countries legal foundation of presumption of innocence.

 

Case law has allowed for the LA to make a general enquiry of a parent and all HE support organisations advice parents that it is sensible to respond to such an enquiry in a manner that a court would find reasonable. However, that case law is unequivocal that such an enquiry is not the same as a request under Section 437 and could not therefore demand the same sort of response or detail of information. That is, as said above, the LA do not need to satisfy themselves re suitability, they just need to consider on a balance of probablilites if it is really likely that a reasonable person could imagine that the child in question may not be in receipt of a suitable education.

 

This subtle brush stroke of a difference in wording creates a sledgehammer of a difference in practice and it is at the nub of most ill feeling and loss of respect between home educators and LAs. Please pay it due respect.

 

The first sentence is a reflection of the hidden nature of the truth about parents legal choices. LAs would not need to consider this being a problem if, as we have said elsewhere, they were more honest in their other materials and dealings with parents and the public, about the proper legal education choices in this country. It is a shameful tragedy, which DCSF should be aiming to correct, that such a document as this still has to consider that the partner agencies may be in the dark about the legality of home education. The last sentence regarding welfare would also have been unnecessary if the normailty, legality and efficacy of home education were better advertised by the DCSF, as no-one would even consider worrying about welfare.

 

The welfare concern is also a red herring which is made worse by the constant stream of government initiatives that paint parents are risk factors in their children's lives, seek to break the bond between children and their parents and to place the cuckoo government in the family nest in the parents' place. DCSF play no small part in this, as demonstrated by the fact that the Merits Committee are calling into question the fact that the department has issued more SIs than any other department during the last parliamentary session and at an alrming turnover rate giving little time for proper consideration.

6.21 comments:

 

The suggestion of home visits needs to be carefully tempered with cautions about the damage that a home visit can cause, the absolute necessity for a home visit and the likelihood that such a visit may deny a family their Human Right to privacy.

6.22 comments:

 

Again, more guidance should be given about time frames here.

 

Recently a family who had withdrawn their child for the purpse of EHE, and who had been on holiday for a week, came back to face police and social workers when an EWO had not had a response to a postal enquiry quickly enough for their personal liking. This is a very traumatic experience, especially for a child who is recovering from severe trauma at school, sometimes by the figures in authority, and should not be allowed to happen. It cannot be right to create procedures that will cause lots of lower level trauma just because their is the "potential" to prevent one high level trauma. The long term effects of such trauma can be very damaging.

6.24 comments:

 

It is astounding that the language here talks of "poor practice" and the "majority" of LAs refusing - this should be a "blanket" instruction not to allow this procedure.

6.25 comments:

 

That first sentence should be applied to the whole guidance and to the inforamtion upon which all LA staff act, particularly in relation to topics about which they have had insufficient training, such as EHE

6.28 comments:

 

any necessary home visit!

6.33 comments:

 

... for as long as the statement is in place. It is possible at any time to consider ceasing to maintain a Statement where it is no longer considered to be necessary.

 

The Statement is about provision an LA must make. A parent has no duty to provide what is outlined in a statement, they may decide to meet their child's needs in any manner they choose.

6.34 comments:

 

Parents are not EVER obliged to inform the LA that they are home educating, whether the child has been in a school or not.

 

It is only ever the school's job to inform the LA when a child is deregistered to home educate and it is a summary offence liable to a fine if the school fail in this duty.

 

It is important that this distinction is clear because it very often leads to misinformation being given to parents about their legal duties. It is the opinion of some AHEd members that some LAs prefer this issue to remain"woolly" in their literature and verbal information as a means of getting home educators to "register" with the LA by default.

6.35 comments:

 

This wording is deliberately misleading. You link to a reference to Phillips v Brown 1980 stating that this case law "allows" LAs to make enquiries but take a sideways slide into making this a duty by using the word "should" above.

 

Please see earlier detailed explanation (at 6.17) about the duties of the LA in this regard.

 

AHEd cannot over emphasise the importance of getting this right.

 

If the DCSF and LAs are EVER to gain the respect of home educators enough for there to be a positive two way dialogue instead of the constant trickle of battles we currently go through together, you MUST deal properly, fairly and respectfully with this issue.

 

The home education community is getting larger, louder, better networked and more incensed about the way in which government continue to disrespect our legal choices and we are only set to get more so as our offspring reach adulthood and home educate their own children.

6.36 comments:

 

 

If it is not the subject of the guidance, what is the rationale behind choosing that and not any amount of other information that is not the subject of this guidance?

6.37 comments:

 

"...can only insist...".... "if there is justifiable, unprejudiced cause for concern..."

6.49 comments:

 

If parental and child preference are to be propely taken into account it is vital that they know all of their legal options including EHE.

Appendix 1

 

Why were other stakeholders not consulted?

2. comments:

 

This definition is open to judicial review;

 

It assumes that being on a school roll or in alternative LA provision secures a suitable education but being home educated does not necessarily.

 

Given the catalogue of school failures and the research evidencing the efficieny of home education, this is slanderous and insulting.