See also ChildrenSchoolsandFamiliesBill CSFBill CSFBill2 

 

MPs return to Parliament after the Christmas break on 5th January 2010. This letter has been posted to the Conservatives (04.01.2010) following questions asked by David Cameron at a meeting with home educators in his constituency and shared with others on internet groups.

 

 

Children Schools and Families Bill, Sections 26 (Schedule One) and 27. Home Education

 

Dear Michael Gove,

 

Action for Home Education (AHEd)¹ is an action group of home educating parents in England, Wales and Northern Ireland whose purpose is to defend and advance home education rights and liberties and to promote fair and equal treatment for all home educators. All members can take an equal part in the work produced by AHEd. AHEd is an affiliate of the Scottish home education association, Schoolhouse, which supports families in Scotland.

 

It is our view that the issues addressed in the Children Schools and Families Bill, sections 26 (Schedule One) and section 27 are serious issues of civil liberty affecting all families. We urge all MPs to be present and to oppose these sections of the bill. The second reading is scheduled for January 11th 2010.

 

AHEd members very much welcome David Cameron's recent assertion to home educators in his constituency, that existing law affecting the education and welfare of home educated children is adequate and does not need to be changed. Other reasons used by Government to mitigate changes in the law are also red herrings; support such as exam access and music lessons, for those who want them, can be provided with no change to legislation. Numbers of home educators, if at all necessary, can be established without registration. 

 

Mr Cameron asked his constituents questions pertinent to the current debate about elective home education, arising from the Badman Home Education Review and Report and addressed in the Children, Schools and Families Bill, section 26 (Schedule One) and section 27. He asked for views on why the current legislation is appropriate and efficient, particularly on how the current legislation protects a child's right to an education.

 

We would like to offer our perspective on these issues;

 

 

Q. Does the law need to change with relation to elective home education?

 

A. No. The current system allows for parental choice and responsibility which is balanced with strong local authority powers where there is an appearance of failure or risk.

 

Section 7 of the Education Act 1996 affords parents the very necessary choice to provide for their child's education how and where they choose and children the assurance that the education must be suited to their individual needs and abilities. Home educators are amongst the most informed about this legislation; ironically many school users are unaware of it but are, by default, not questioned about their provision.

 

Section 437 onward of the Education Act 1996, provide for the Local Authority to intervene if it comes to their notice that a "home educated" child may not be in receipt of a suitable education; the LA can ultimately issue a School Attendance Order (SAO) on their own authority.

 

This is proportionate and effective where properly enacted.  In cases of dispute, courts can decide if a suitable and efficient education is in place. These terms have been defined in case law. ²

 

In exhaustive and repeated consultations over the past five years all results have favoured supporting existing freedoms unchanged and to ask local authorities to abide by existing law.

 

Existing law allows for local authority enquiry into private educational provisions, as well as legal actions without recourse to the courts where there is an appearance of parental failure to provide a suitable education. But it also allows, where parents do not agree with the local authority, for due process in a court of law and final decisions to be made by a judge; failing to ensure a suitable education for one's child is a criminal offence. In this way parents are still responsible for their children and free to act according to conscience, while local officials can carry out a duty to act where there is parental failure and in order to protect truly vulnerable children. However, local authorities complain that this takes too long and is expensive and they wish to have more powers to force compliance without any recourse to the courts at all. AHEd members' experience and understanding is that most SAOs (School Attendance Orders) actually fail when put before a court; a reflection of the incongruity between much LA opinion and justice, and an indication that LA complaints about costs are mostly down to money wasted bringing prejudices to court.

 

The party currently in power and many local authority officials have openly stated that they are not in favour of existing freedoms and wish to further prescribe and control education of all children wherever they are educated. There is no evidence of need or benefit of the proposed changes, despite substantial civil liberties and financial implications. It is a matter of ideological opposition to home education, rather than genuine concern for children or families, that drives this continued harrying of home educators. AHEd believes that the smear campaign raised against home educators by this government has prevented other parents from giving due credence to the risks to all families that these proposals represent.

 

Q. What is wrong about the Badman review and report?

 

A. A great deal is wrong and is dealt with on the AHEd wiki ³ and many other places. Most fundamentally the terms of reference were illegitimate in authorising a review of procedures that are outside the legal remit of local authorities, asking them to evaluate how well they carry out non existent duties and ultra vires practices with a view to strengthening these same procedures. (Please see: http://ahed.pbworks.com/ReviewToR ). This fault demonstrates a shocking combination of ignorance and disrespect for the law, that binds both government and people, running through the whole foundation and process of the Badman review.

 

The underlying issue is that local authorities have failed to understand their duties and, far from being helped, have been misdirected by the DCSF who have allowed the current situation to develop. LAs believe that they must ensure the welfare, education, and "Every Child Matters" (ECM) outcomes of every child in their area; but do not have the legal powers to do so. They do not have the power because they do not have these duties. Parents are responsible to ensure the welfare and education of their own children and ECM outcomes are a guide for the provision of public services to children, not a rule that all children must individually attain and be tested upon.

 

It is well documented ⁴ that the review was launched with a scandalous campaign of negative spin against home educating families. This has resulted in attempts to prove false allegations by misuse of the evidence provided and manipulation of statistics. The review was built on a foundation of prejudice and repeated assertion of duties that do not exist in law. This led, for example, to the unilateral decision by Mr Badman that "Autonomous Education" was "out of scope" of the review, arbitrarily deciding that he did not approve of case law determining that Autonomous Education fulfils the legal criteria for suitable education, ⁵ personally disallowing it from consideration in a review of home education.

 

Mr Badman also dismissed expert evidence by Dr P Rothermel and so managed to gloss over the fact that the effect of the proposals would be to remove the practice of providing an education that is individually suited to a child and therefore superior, including the possibility of children learning autonomously with their parents' support. If these proposals prevail, educational content, method and expected outcomes will be prescribed by the state and imposed on families, regardless of whether this is in the child's best interests.

 

A major effect of the Badman report was to show the lack of substance in claims of a need to create more regulation and control over home education because of alleged risk of educational or other neglect or harm. 

 

Q. What safeguards are currently in place for home educated children?

 

A. Home educated children and their families are subject to the same laws as every other family. These laws already provide for Local Authority intervention where there is evidence of concerns for the education or welfare of a child. However, routine checking and monitoring of all home educating parents and children would undermine fundamental civil liberties and contravene the Human Rights Act. It would also send the very divisive and dangerous message to children, that their parents are not to be trusted and that stranger from the LA over-ride parental authority. Furthermore, it would be unnecessarily costly at a time when there are limited resources available for Children's Services, which should be properly directed towards genuine need.

 

As it is, abuses of children may be reported for any child by various agencies including the extended family, neighbours, hospital doctors, GPs, dentists, visitors to the house, LAs, Youth Group leaders, Churches and even children themselves. State schools do not usually report about home educating families, except in cases of routine (and ultra vires) notifications following deregistration from school. Home educating families are simply not utilising the state school system, along with children under compulsory education age and those who use other private education provisions. That is to say that of the thousands of opportunities for people to report to the LA any concerns about a child's education or welfare, the only single opportunity missed by home educated children is for their school teacher to report concerns.

 

The most significant issue with the proposals is that there is no supporting evidence for the claimed need to re-enforce safeguarding procedures specifically relating to home educated children. The cases we have seen used as examples of home educated children about whom there were welfare concerns are, without exception, cases where the families were already well known to the relevant authorities. The proposals of the Badman Review or the Children Schools and Families Bill Schedule One could not have improved matters - those children would still have suffered severe consequences - BUT, following the current legal procedures could have saved them. They were tragic cases of human failures to use existing measures within Children's Services. It is the proper management of these existing services that requires attention, not home education.

 

The government should trust parents to do a good job, measures for intervention should be on the basis of reasonable concern only, as currently provided for. 

 

Q. What happens now about registering with the local authority?

 

A. The proposed registration scheme is about complying with a licensing scheme in order to gain permission to carry out parental responsibilities. Education is a parental responsibility. Families who choose to educate their own children outside the state school system are not required to register their decision with the local authority as they do not require LA services - to do so would be analogous to families registering any other parental provision for children such as dietary or material provision in order for the Local Authority to check and monitor that provision despite no legal compulsion. Local authorities are responsible to provide school places for those children whose parents require a place for them - not to inform themselves of the education provision of all children.

 

The LA does NOT need to know who is being home educated. A duty to identify, as far as is reasonably possible, children who may be "missing education" does not confer powers to compel parents to routinely register educational provision. If a local authority has good reason to believe a child is not being educated or is suffering abuse or neglect (i.e. the parents are breaking the law) then and only then, they are required to act. Otherwise they have no responsibility to intervene at all.

 

Some people speak of "voluntary registration" but this is a confusing misnomer. Those home educators who currently choose to make themselves known to the LA do it for a variety of reasons; among other reasons, some are scared of the consequences of being "discovered", some are in need of services such as SEN provision, and some are "voluntarily registered" by the school they leave. Most, given a free and unencumbered choice would NOT be registered because most experience no positive benefit.

 

Current law gives local authorities the duty to act with reference to families in their area who are failing to properly provide for their children. This is predicated on the appearance of failure.  Therefore, if there is the appearance of a parent failing in their care of a child, local authorities are empowered to take actions. With reference to educational provision this is covered by the Education Act 1996, section 437.  In addition to this and with reference to educational provisions, local authorities have the right, supported by case law, to make enquiries of a family regarding their educational provisions even in the absence of any appearance of failure. There is no evidence that routine "trawling" of details of educational provision is either necessary, or that it will reduce the incidence or likelihood of families not making adequate provision. The vast majority of concerns arise amongst children who are withdrawn from school in circumstances that already attract attention, and can be addressed in a far more efficient and targeted way.

 

After extensive consultation, the DCSF did produce guidance to local authorities on elective home education in November 2006. This guidance has not satisfied home educators or local authorities because of inconsistencies where the department has tried to support the assertion that local authorities are responsible to ensure the educational provision and welfare of all children in their area. The assertion angers parents, who are responsible for their own children and should be left alone to do their job with the confidence of their government. The assertion pressurises local authority officials to carry out duties for which they do not have any corresponding legal powers with the intention of carrying out the stated policy of a political party for intervention in families to prescribe, legislate and inspect all educational provision and ensure its compliance with state requirements regardless of logic, need, benefit, or resource implications. 

 

Q. How can children be safeguarded if they are not known to the LA?

 

A. By long tradition and common sense, it is parents and families who safeguard children, as is their legal and moral duty. One wonders how families nationally would react if social services had a duty to visit every home and inspect the family, children and home and expect every parent to prove to their satisfaction they were not abusing their children on an annual basis. In general citizens have benefited from an assumption of innocence and families are trusted to care for their children without oversight by the state.  There should be no different expectation for home educating families. Routine monitoring for safeguarding of educational and welfare need is requiring parents, without any just cause, to continually prove that they are innocent of an offence.

 

It is also an attack against families to try to generate a false dichotomy between “rights” of parents and “rights” of children, saying that the government must routinely intervene between the two to “balance” these rights, as this government have been doing. This is an argument for state intervention, control and division of the family. It is an insult and threat to the family unit.

 

In most cases, it is not a matter of rights but of familial and parental duty, the needs of children, and relationship. It is not the place of government to intervene in family relationships except in rare cases where there is cause for concern. This should not result in the subjection of families to a system of routine surveillance to ascertain their innocence, or to investigate ungrounded fears about families who simply choose not to receive Local Authority services. Such a policy would cause vastly more harm that it could ever hope to prevent.

 

Welfare Regarding child abuse, statistics available with reference to home educated children who have been found to be involved in child abuse, neglect, forced marriage, sexual exploitation or domestic servitude show that there is an apparent reduced risk to home educated children compared to the population as a whole. Please see

 

http://spreadsheets.google.com/pub?key=rbrk5-GEdrUdcmfi670Mihg&gid=2

 

Education The current proposals are not about safeguarding an education suitable to each child, but about prescription and regulation of the education provided to all children. The schedule provides wide powers to the secretary of state to make regulation without recourse to parliament to prescribe the educational provisions made in families and refuse permission to home educate to anyone who does not comply. However, research shows excellent results for electively home educated children regardless of economic status or educational approach. Many popular and particularly effective approaches, such as child-led or autonomous education, can not fit into a system of government regulation. This does not deter the government from trying to impose set criteria and encroach on areas that involve freedom of conscience or ideology, such as ethics, morality, personal, sexual and religious education.

 

Education is safeguarded because parents who choose Home Education do so because they are committed to the education and developmental needs of their children, and usually endure considerable loss of time and income in order to do this. By extension they will ensure that their children's educational needs are met. They have a legal duty to do this and are assumed in international law to have their children's best interest as their basic concern. Local authorities have the right to request information from families only in order to fulfil their duty to act where there is an appearance of failure. 

 

There may be differences in what people consider a suitable education for each child, but diversity should be acknowledged and encouraged because we don't have a fixed and firm grasp of what the "right" way is. Our knowledge of best practice, and even "facts", changes all the time and it may be that by allowing the full range of diversity we will protect or discover ways of looking at things that could be lost in the constraints of the National Curriculum and chasing paperwork. The word "suitable" in the context of the law is in relation to the individual, rather than in relation to prescribed minimum standards or outcomes.

 

Q. How can families and local authorities have a positive relationship?

 

A.  Where families are known to their local authority, it is common for them to encounter personal prejudice from officials. Even in a "friendly" area, a change in LA personnel can immediately and dramatically change things for home educators. Problems present because of LA officials acting on poor information about the law and consequent lack of clarity about their role, and the extent of their responsibilities.

 

Things would be greatly improved if Local authorities would abide by the existing law in administration and the provision of services to families. Following a review of local authority involvement, AHEd produced a document:

http://ahed.pbworks.com/BMWhatDoWeWantLAs  outlining what home educators want from service providers. 

 

Q. Do you want to be left alone and leave the current situation as it is?

 

A. AHEd members support the current law as it relates to elective home education because it provides for:

 

parental responsibility

freedom of conscience

the presumption of innocence

promotes the best interest of the child

requires education suitable for the child

provides for local authority action where there is an appearance of failure

gives access to due process in the case of dispute

 

Please see our Parents' Declaration: http://ahed.pbworks.com/ParentsDeclaration

 

Q. What evidence is there for issues with home educated children that are not known to the social services?

 

A. Home educated children who are not known to social services and not known to their local authority are still likely to be widely known and involved in their community but they continue to live in the wider world as any other person does, and there is no reason to assume that there would be any other outcome than a positive one unless one is prejudiced against independent or elective home education. Research from around the world shows good outcomes for home educated young people.

 

There have been some high profile cases of families known to social services where there has been a reference to home education and these have been put forward to argue for regulation. However, in every case, the families have been already known to social services who failed to safeguard the children; see

http://ahed.pbworks.com/BriefingPaperHEReview#HomeEducationandChildAbuse

 

Other issues of serious concern to AHEd and home educators in general are the use of referral to social services by local authorities as a coercive measure and in place of SAOs, including using CPPs. One such case was used in evidence to the Select Committee Inquiry into the Badman Review and is in the memoranda from Mr William Wallace, on behalf of AHEd.

 

REFERENCES:

 

(1) http://ahed.pbworks.com/

 

(2)Harrison & Harrison v Stephenson (appeal to Worcester Crown Court 1981). The term 'suitable education' was defined as one which enabled the children ‘to achieve their full potential’, and was such as ‘to prepare the children for life in modern civilised society’.  The term 'efficient' was defined as achieving ‘that which it sets out to achieve’.

 

(3) http://ahed.pbworks.com/BadmanReview

http://ahed.pbworks.com/BetterRegulationExecutiveandBadmanProposals

http://ahed.pbworks.com/LiesDamnedLiesStatistics

 

(4) http://www.independent.co.uk/news/education/schools/is-the-government-right-to-be-concerned-about-homeschooling-1631969.html

http://ahed.pbworks.com/AHEdPressReleases2#PERSECUTIONOFMINORITYGROUPISABUSEOFPUBLICFUNDS

http://www.victoria-climbie.org.uk/index.php?option=com_content&task=view&id=49&Itemid=31

"VCF Response to article appearing in The Independent Online

26 Feb: Is the Government right to be concerned about home schooling

VCF - The Victoria Climbié Foundation UK is genuinely concerned about the link being made between Victoria Climbié and home education, and Victoria as a hidden child.  Victoria was neither home-educated nor hidden.

The reality is that there is no such thing as a 'hidden' child, only children who are allowed to fall through the gaps.  The key issue here is how statutory services interact with children that are known within the child protection system."

 

(5) Harrison & Harrison v Stephenson; appeal to Worcester Crown Court 1981