risk: NSPCC briefing on home education

This is the fourth in a series of posts prompted by the NSPCC briefing Home education: learning from case reviews. The briefing highlights recommendations from seven serious case reviews (SCRs) published between 2008 and 2013 involving home-educated children. [The full briefing has since been replaced with a summary, but the original is still accessible here. Also note that the Serious Case Review for Child S listed in the NSPCC summary is for the wrong Child S.] Also note that the Serious Case Review for Child S listed in the NSPCC summary is for the wrong Child S.] In my view, the briefing’s perspective on home education legislation is based on a misunderstanding of the legal framework that underpins it. I think the briefing also misunderstands how the law tackles risk.

legislation and education

In a democracy, the primary function of legislation is to protect the liberty of individuals. But there’s a tension inherent in that principle because protecting the liberty of one person usually means limiting the liberty of another. So legislators have to weigh up the costs and benefits of legislation to different people. I think this is what Graham Badman was getting at when he opened his 2009 report on elective home education (EHE) with a quotation from Isaiah Berlin’s Four Essays on Liberty:

The need to choose, to sacrifice some ultimate values to others, turns out to be a permanent characteristic of the human predicament

But Badman then goes on to frame UK education legislation relevant to EHE in terms of a “balance between the rights of the parents and the rights of the child” (p.3). Not only is the legislation not about ‘balance’, it’s not framed in terms of ‘rights’ either, although its purpose is to protect children’s liberty; it’s about parents and local authorities having specific duties that they are required to carry out in certain circumstances. Giving people duties doesn’t sound like it protects anyone’s liberty. It does in the case of education because education should help people understand how the world works and understanding how the world works helps people protect their own liberty and that of others. Under UK law, parents have primary responsibility with regard to educating children and local authorities have powers to step in if the parent asks them to or if it appears that the parent is in breach of the law.

What Badman, the NSPCC and many local authorities are most concerned about is the risk of harm to children educated at home. They argue that home-educated children are denied safeguards applied to children who attend school. In their view, home-educated children are by definition at risk of suffering harm that ‘the authorities’ wouldn’t be able to prevent because they wouldn’t know about it. What they are concerned about is a hypothetical risk.

legislation and the risk of harm

The law takes a dim view of harm and much legislation is about protecting people from it. But hypothetical risks pose a problem for the law because there’s an almost infinite number of them and it would be impossible (and sometimes counterproductive) to legislate against them all. As a consequence, legislation is almost invariably based on evidence of real risk.

For example, Mr A might take it into his head to go on a shooting spree and kill and injure several passers-by. To say that there’s substantial evidence that being killed or injured constitutes a real risk of harm is a something of an understatement, so the law prohibits people from killing and injuring each other. The real risks associated with people being killed or injured are pretty clear-cut. Other risks aren’t so straightforward, such as the consequences of not wearing a seat belt when motoring.

In the 1970s Ms B might have argued that she’d been driving in the UK for forty years without a seat belt and had come to no harm – and even if she did it would be her lookout, so making the use of seat belts compulsory was nothing more than an infringement of her liberty. All that Ms B’s evidence tells us is that not wearing a seat belt doesn’t inevitably lead to harm. As for it being only her business, if she’d been thrown through the windscreen she wouldn’t be the one picking up the pieces; personal tragedies have a wide impact.

On the face of it, the campaign for seat belt legislation and motorists’ objections to it look remarkably like calls to tighten up home education legislation and parents’ objections to that. One obvious difference is that they involve very different activities. A less obvious difference is whether there is evidence showing that not wearing a seat belt or educating children at home constitute real risks as distinct from hypothetical ones. Evidence of the real risk involved in not wearing a seat belt could be seen in casualty departments in hospitals up and down the land in the 1970s. Evidence shows that the real risk attached to being home educated is so vanishingly small that it’s non-existent.

major incidents and serious cases

In the BBC documentary Baby P: The Untold Story, Edi Carmi, who led the serious case review, observed that all the agencies involved made mistakes, but it was when they all happened at the same time that tragedy struck. Mistakes happening at the same time is a familiar scenario in risk management. It was a key factor in the Three Mile Island and Bhopal disasters. The people who design safety-critical systems like those in nuclear power stations and factories handling toxic chemicals take it for granted that mistakes will happen. But they design systems to ensure that if and when mistakes happen, they are very unlikely to happen at the same time. The key phrase is ‘very unlikely’. Systems designers can only minimise risk – they can’t eliminate it entirely.

One characteristic of major incidents is several rare events happening simultaneously; a plane crashes because two engines fail at the same time as a pilot is taken ill and a passenger has a heart attack. I expected to see a similar pattern of rare events coinciding in the seven SCRs; a social worker crashes her car on the way to visit a parent who’s just received a diagnosis of cancer and whose eldest child has just been arrested.

Instead, the SCRs paint a picture of long-term challenging circumstances for the families, coinciding with a series of commonplace mistakes on the part of the agencies supposed to be supporting them. The children in the seven SCRs were adopted, chronically sick, disabled, bereaved, had special educational needs or faced housing crises. The mistakes made by the agencies were typical of those made in organisations that are overstretched; staff lacked relevant knowledge or experience, there was high turnover and problems with cover. Information wasn’t passed on promptly, or wasn’t passed on at all. No one had an overview of individual cases and no one had time to check that procedures were being followed and agreed actions carried out.

home-education and risk

According to the NSPCC, there were seven cases of home-educated children coming to serious harm between 2008-2013 – around 1% of the total number of SCRs for the equivalent period. In the University of East Anglia’s biennial surveys of SCRs I could find no mention of any additional cases between 2003-2007 involving home-educated children. If those seven cases are the only ones in the last decade, the 1% proportion would be more or less halved. In other words, only very small proportion of children coming to serious harm were home-educated.

A closer look at the seven SCRs shows that being home educated doesn’t itself constitute a real risk to children – and that monitoring home-educated children doesn’t guarantee that they won’t come to harm. What characterized the part played by home education in the seven case reviews is local authority confusion about it. LA officers were unclear about the law, their statutory duties or about who was responsible for doing what. But the fact that home education posed a problem for ‘the authorities’ doesn’t mean that it put the children at risk. If there is no evidence of home education posing a real risk to children, why do some people working in child safeguarding think there is one?

risk perception

Child safeguarding, like any other specialist area, is a small world, and people working in a small world tend to use that world, rather than the wider context, as their frame of reference. Child safeguarding is also a difficult and stressful occupation and agencies are clearly overstretched and have been for some time. Professionals working under intense pressure with inadequate resources are likely to perceive unusual family circumstances such as children being educated at home, coupled with an inadequate understanding of the relevant legislation, the ensuing confusion about what procedures to follow, and the risk of serious consequences if they fail to protect a child, as a real risk when in fact it’s a hypothetical one. Research into risk perception suggests that people find it difficult to make a distinction between hypothetical risks and real ones. That’s why basing policy on evidence rather than opinion is so important.

The evidence shows that there are particular groups of children at real increased risk of harm; being a young child or using roads for example. Over 60% of all SCRs involve under-5s and around 2,000 children are killed or seriously injured on UK roads every year. Steps have been taken to reduce those risks through legislation, but legislators are aware that they are risks that are unlikely ever to be eliminated completely. By contrast the evidence indicates that that being home educated isn’t something that poses a real risk to children. Tightening up the legislation might make the people worried about a hypothetical risk feel better, but it can’t reduce a risk that doesn’t exist.

What did put the children in the seven SCRs at risk was a combination of challenging circumstances for their families and mistakes on the part of the agencies whose job is supposed to be to help them. In the next post I look at something the NSPCC briefing and the SCRs mention only in passing – what services were on offer to help the families with the challenges they faced.

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the recommendations: NSPCC briefing on home education

The NSPCC briefing Home education: learning from case reviews highlights a number of recommendations from seven serious case reviews (SCRs) published between 2008 and 2013 involving home-educated children. [The full briefing has since been replaced with a summary, but the original is still accessible here. Also note that the Serious Case Review for Child S listed in the NSPCC summary is for the wrong Child S.]

The task of SCRs is to examine why a child came to harm, why the harm wasn’t prevented and to make recommendations that should ensure those things don’t happen again. SCRs tend to be detailed and rigorous in their analysis, so I’ve taken the recommendations made in six of the seven serious case reviews (Child 5’s was available only as a brief summary) as a proxy for the factors involved in what happened to the children.

the recommendations

By my reckoning, the six SCRs made a total of 79 core recommendations – although there were additional ones in relation to specific local agencies. Some recommendations were made in more than one review. To get an overall picture of the key factors I ranked the recommendations in order of the frequency with which they occurred. Recommendations from more than one SCR were:

• contact the DfE or equivalent body regarding elective home education (EHE) and safeguarding (5 SCRs)
• issue local multi-agency guidance regarding EHE and safeguarding (3)
• training and development with regard to combative, aggressive or non-engaging parents (3)
• EOTAS teams made aware of safeguarding issue (2)
• monitor health of EHE children (2)
• ensure procedures were followed with feedback to referrers (2)
• ensure agreed actions were taken (2)
• provide evidence of managerial oversight (2)
• promote public awareness about safeguarding other people’s children (2)

23 of the recommendations (about 30% of the total) occur in more than one SCR, but most of those are in only two or three reviews, indicating that there’s quite a lot of variation across the six cases in terms of specific recommendations.

But if the recommendations are grouped together according to the factor they refer to, they cluster into five broad themes:

• children with disabilities – 3 (4%)
• behaviour of parents – 5 (6%)
• elective home education – 14 (18%)
• healthcare – 21 (26%)
• procedural issues – 34 (43%)

In addition, there was one recommendation about developing children’s sense of identity and ethnicity and another about contacting central government about issues outside the scope of the review. (The percentages don’t add up to 100 due to rounding.) In this post I look more closely at the top three factors. I’ll come back to the behaviour of parents and children with disabilities in later posts.

The NSPCC briefing is about home-educated children so it’s not surprising that most of the recommendations it highlights are about legislation relating to home education. But the SCRs are also about home-educated children, and most of their recommendations are not about home education legislation. Almost 70% related to either procedural issues and/or healthcare.

procedural issues

Problems with procedures have been the focus of media attention in recent high profile child abuse cases. In the six SCRs they include some very basic issues such as ensuring staff have appropriate training, making sure procedures are followed, that agreed actions have been carried out and improving communication between agencies. The only reference to procedural issues in the NSPCC briefing is in relation to professional awareness that there isn’t a safeguarding element in education legislation. I’ll return to procedures in a later post.

healthcare

The briefing does mention health services (including, oddly, making recommendations for the Primary Care Trusts that were abolished months before its publication) but doesn’t go into detail about the role played by healthcare in the harm incurred by the children. That looks like a serious omission. Not only were health services actively involved in the lives of the children, in several cases it’s possible they could have contributed to the harm they suffered. Let’s take a closer look the role of health services in the seven SCRs.

Family 1 initially fostered some of the children privately, and later adopted them. The adoptive parent thought some of the children had ADHD/ASD/Asperger syndrome. One has to wonder what circumstances led to the private fostering arrangement and whether the children’s behavioural problems were solely attributable to the adoptive parent’s parenting style as the SCR suggests. Three of the children were prescribed Ritalin for excessive periods of time without the required regular reviews. Over-prescription of medication also featured in the case of Child 2, whose mother had repeatedly raised health concerns about her son. Not only was the dose too high for a child of his age, but Child 2’s mother was able to obtain the medication from her GP after the hospital had said it should be discontinued. Since the parents of Family 1 and Child 2 couldn’t have prescribed the medicines themselves, presumably health practitioners had felt there was a good reason to do so. Child 3’s mother also raised concerns about her daughter’s health before her GP removed the family from his list without following the proper protocol. Child 4’s family had extensive contact with health services. Child 5 had been referred to a clinical psychologist. Child 6’s parents stopped engaging with the authorities when they couldn’t get a clear diagnosis for his developmental problems. The mother of Family 7 had been attempting to artificially inseminate her eldest daughter, A, but the GP they saw after claiming that A (then aged 14) had been sexually assaulted and might be pregnant, failed to follow up her case because he didn’t believe their story.

The SCR also draws attention to the number of medical appointments Child 6 had – as an indicator of his mother’s misplaced focus on his health. She is suspected of fabricating or inducing her son’s illness and FII is referred to repeatedly in the SCR despite nobody appearing to be clear about whether or not Child 6’s health problems were genuine. In contrast, the mother of Child 4 had a track record of missing appointments. Between 1998 and 2008 she missed 129, a third of which were health related. In 2007, the year before Child 4 died, “the pattern of failed appointments escalated dramatically… 26 (20%) appointments were missed, as relationships with professionals deteriorated”. That means that in the course of a year the mother, then a lone parent with six children (several of whom had statements of special educational needs), was expected to attend 130 appointments including medical ones. That’s almost three a week. It’s not surprising that parents of children with disabilities complain that managing appointments with professionals feels like a part-time job. There are clearly some lessons to be learned from a system that expects lone parents to attend three appointments a week but sees missing one in five of them as a danger signal. One of the recommendations of the case review is that agencies should “provide evidence to demonstrate an effective response to missed or failed appointments” – the most obvious solution doesn’t appear to have been considered.

home education recommendations

The third most frequent factor referred to in the SCRs is home education – almost 20% of the total recommendations. Most of the home education recommendations were either about improving agencies’ knowledge of the legislation or about raising awareness of the issue the NSPCC is concerned about; that there isn’t a safeguarding element in education legislation – a concern that, as far as I can see, is based on an inaccurate understanding of the legal principles and on speculation rather than evidence.

The NSPCC briefing frames the recommendations from the SCRs only in terms of home education, so the unwary reader might conclude, wrongly, that the problems with procedures and healthcare arose only because the children were home educated. What the SCRs indicate is that most of the problems with procedures and healthcare – such as checking that actions had been carried out and over-prescription of drugs – were nothing to do with the children being home educated; they could equally well have occurred if the children were at school.

I should point out that I’m not attempting to shift the blame from parents, three of whom clearly neglected and maltreated their children. But if the focus of LSCBs and the NSPCC is on the wellbeing of children, it’s imperative that the real causes of harm are identified – even if public sector services are implicated.

So why would the NSPCC briefing make claims about home-educated children that aren’t supported by the data? Why would it present recommendations in a way that doesn’t accurately reflect the way they are presented in the SCRs? And why is the most frequently occurring specific recommendation in the SCRs about home education and safeguarding if there isn’t a problem with safeguarding home-educated children?

The answer, I suggest, is that the NSPCC is interpreting the data from the SCRs in the light of its concerns about possible risks due to home education, rather than basing its concerns on evidence about real risks. And the NSPCC’s concerns are, understandably, very influential amongst people who work in child safeguarding; two of the authors of the SCRs worked for the NSPCC at the time they wrote the review or previously.

Possible risk versus real risk; the subject of the next post.

the claims: NSPCC briefing on home education

The NSPCC briefing Home education: learning from case reviews claims to consist of ‘learning about child protection pulled from the published versions’ of seven Serious Case Reviews (SCRs) published between 2008-2013. [The full briefing has since been replaced with a summary, but the original is still accessible here. Also note that the Serious Case Review for Child S listed in the NSPCC summary is for the wrong Child S.] In this and subsequent posts, I want to focus on the patterns of events that emerge from the case reviews, but I’ll also refer to examples of what happened to specific families or specific children. I’ve numbered the cases to anonymise the children as much as possible, but have linked to the published versions of the SCRs. I’ve listed brief details of each case below for reference.

Family 1 2007 serious maltreatment of adopted children
Child 2 2008 non-accidental poisoning with prescription drug
Child 3 2009 unexplained death
Child 4 2010 death due to severe malnutrition
Child 5 2011 suicide
Child 6 2012 death due to natural causes
Family 7 2013 neglect, and sexual abuse of adopted child

In this post I examine some of the claims about home-educated children made in the briefing and to look at how well they are supported by the evidence in the SCRs.

home education highlighted as a key factor

All the SCRs mention home education but comments range from a brief reference in the case of Child 2, to a lengthy discussion referring to the Badman Review and another high profile case from the anonymous author of Family 7’s review. Overall, the claim that home education was a ‘key factor’ appears to be due to local authorities’ lack of clarity over the distinction between education and safeguarding rather than being a key factor in the harm suffered by the children. I’ll look more closely at the causes of harm in the next post.

becoming invisible

The second claim made by the briefing is that children ‘can become invisible to the authorities’ once they are educated at home. In all cases except one – Child 3 – ‘the authorities’ were aware that families faced challenging circumstances or that children were at risk. Child 3 was visited at home by an officer from the local education department three times in the months prior to her death and no concerns were raised about her welfare. In short, none of the children ‘became invisible’.

being unknown

A third claim is that home-educated children ‘may be completely unknown to the local authority’. This could happen if a child has never attended school or has moved from another area. The implication is that being unknown to the LA in and of itself puts the children at increased risk of harm. ‘Unknown’ children were of great concern to Graham Badman during his 2009 elective home education review. They were the subject of a lively exchange between Mr Badman and Graham Stuart of the Children, Schools and Families Select Committee,  that I’ve looked at in more detail here. Again, the SCRs don’t bear out the claim. The people who contacted the authorities about the children included teachers, medical professionals, neighbours and the parents themselves. None of the children were unknown to the LA prior to coming to harm.

A fourth claim is that ‘there are some common threads running through the learning points and recommendations highlighted in these serious case reviews’. The briefing ties together several of the common threads. For clarity, I’ve teased them apart.

isolation

There were clearly no concerns about isolation when the children were adopted into Family 1 and Family 7, and it was members of Family 1’s religious community who alerted the authorities to the maltreatment of the children. Four other children initially attended school and were all seen by ‘the authorities’ whilst being home educated. Child 6, who never attended school, had siblings about whom there were no concerns. In short, the children’s isolation varied considerably.

no right to express views formally and participate in the assessment or decision-making process of home education

There’s been much rhetoric in recent years about the ‘voice of the child’. Despite this, most children don’t get a say in whether or not they go to school, and have little say about how they are educated when they get there. Many home-educated children, in contrast, are educated at home because they have been listened to, and they actively participate in decisions about their education. It’s not clear how much say the children in the seven case reviews had about their education – either at school or at home.

no right to independent access to friends, family or professional agencies

Again, children who attend school don’t have these ‘rights’ either. Most children are dependent on their parents (or teachers) for access to friends and family and most children need parental permission to access professional agencies.

no mechanisms to ensure that they continue to receive a ‘suitable’ education or adequate care without the express consent of their parents/carers

This claim betrays a lack of understanding of the legal framework. One of the services local authorities provide for local people is schools. The ‘mechanisms to ensure that school pupils receive a suitable education and adequate care’ are in place because LAs are providing a service for parents paid for by the community. There are no mechanisms to ensure that parents are providing a suitable education or adequate care because local authorities do not have powers to check up on everyone in their local area to make sure they are all complying with the law. Giving LAs those powers would be a huge waste of resources because the majority of people would be found to be doing nothing wrong. The system we have at present, where LAs have powers to act if they have reason to believe the law has been broken, is consistent with the principles of democracy and is far more cost-effective. How effective it is in protecting children from harm is a point I’ll return to in a later post.

a major safeguarding flaw within home education legislation

This claim rests on an implicit assumption that education legislation requires a safeguarding element. It doesn’t. Welfare and education are separate issues in law, and with respect to each issue, LAs can make enquiries and take further action if necessary. A common thread running through the narrative of ‘the authorities’ concerning home education is a failure to make a distinction between the two areas of legislation and an attempt to piggy-back safeguarding onto education. Of course LA officers making enquiries because it appears a child isn’t getting a suitable education might pick up safeguarding issues. Teachers might do so in respect of children attending school. Whether they should be expected to is another matter. Professionals with education expertise don’t necessarily have expertise in child protection. There’s a risk that giving superficial safeguarding training (or none at all) to educational professionals will lead to false alarms and consequent needless distress for children and their families.

dominant personalities of parents/carers

Many years of my working life have involved ‘interfacing’ with the public. Most people have been polite, reasonable, helpful and friendly. A small minority was deceitful, manipulative, aggressive or violent. People working in child protection are likely to encounter a disproportionate number of the second group, for obvious reasons. But the briefing doesn’t draw attention to them – it warns against parents who are “extremely well-informed, articulate, hostile, aggressive and/or resistant to professional intervention”. These traits, claims Birmingham LCSB, “reinforced a power imbalance that undermined the rights, welfare and protection of home educated children”.

The NSPCC seems to have a particular problem with parents being articulate and knowledgeable, and takes a quote from Child 4’s review out of context to reinforce the point. The original text blames the shift in focus away from the children’s welfare, on the professionals’ response to the parents’ attitudes and behaviour. The briefing omits the criticism of professionals and in doing so manages to blame the parents for the professionals’ shift in focus. There’s no discussion about why parents and carers might have been well-informed, articulate, hostile, aggressive and/or resistant to professional intervention. I found it baffling that local authorities need to be reminded to train staff involved with child protection to cope with hostile or aggressive parents. But if they need specific training to deal with parents who are ‘well-informed’ and ‘articulate’, there’s something very wrong with the system.

EOTAS services are offered to parents who choose to educate their children at home

EOTAS stands for Education Otherwise Than At School in reference to the 1944 and 1996 Education Acts. You might assume this means LAs have teams waiting in the wings to support parents home-educating their children. You’d be wrong. Some do, but most EOTAS provision is for children registered with schools but unable to attend due to medical and other reasons. LAs don’t have a statutory duty in respect of home-educated children, unless ‘it appears’ the child isn’t being suitably educated, so the services they offer are sometimes not services at all.

In my own case, I was persuaded by my LA to have a visit from an ‘adviser’. When he arrived the adviser told me that he couldn’t advise me on my children’s education because that was my responsibility; his job was check that my educational provision was suitable – even though the LA had no reason to suppose it wasn’t. The Education Select Committee drew attention in 2012 to the finding that only 30 out of 152 local authorities had information on their websites that accurately reflected the legislation relevant to home education. It’s hardly surprising that LA staff are confused.

children educated at home do not have access to school nursing services

True, they don’t. [Apparently they do: see comments below.] But they do have access to the rest of the health service. The children in Family 1 ‘received considerable specialist health interventions’. Child 2 was harmed because of too much medical treatment. Child 3’s GP removed the family from his list without following the proper procedures. Medical services were criticized in Child 4’s review because they intervened too late, despite concerns raised with social services by teachers. Child 5 had seen a clinical psychologist. In Child 6’s case, parents stopped engaging with professionals when they couldn’t get a clear diagnosis for his developmental disorder. Family 7 had a good deal of contact with health professionals. In none of the SCRs does the lack of access to school nursing services appear to have impacted on the child’s health.

current legislation and guidance inadvertently helps the small minority of home educators who use elective home education as a cover to conceal child neglect and abuse

In each of the three cases where there is unambiguous evidence that the parents or carers neglected or abused their children, local authorities were aware of the challenges faced by the families and public sector services were actively involved with them. The only problem posed by the current legislation and guidance appears to be that local authority officers didn’t understand it properly and weren’t clear about who was responsible for what.

elective home education can lead to isolation and obscuring of children from normal services that could act as a monitor of their welfare

The key word here is ‘can’. Elective home education certainly has the potential to lead to isolation and ‘obscuring’ the children from ‘normal services’ in a way that puts their welfare at risk; but so far, there’s no evidence to suggest that that has actually happened. More on that in another post.

Although the NSPCC briefing does indeed pull ‘learning about child protection…from the published versions of the reports’, that learning is based on a flawed understanding of the relevant legislation and the principles underpinning it, and only one of the claims made in the briefing (about isolation) is supported by the evidence from the SCRs – and that support is only partial. The briefing also highlights a number of recommendations, which I’ll look at in the next post.

NSPCC briefing on home education: the law

In March this year the NSPCC published a briefing entitled Home education: learning from case reviews. [The full briefing has since been replaced with a summary, but the original is still accessible here. Also note that the Serious Case Review for Child S listed in the NSPCC summary is for the wrong Child S.] The briefing is based on seven Serious Case Reviews (SCRs) published since 2008 ‘where elective home education was highlighted as a key factor’ and ‘consists of learning about child protection pulled from the published versions of the reports’.

I got the impression from the briefing that the seven cases involved tragic situations in which parents had neglected or abused children and that home education had played a significant role in that neglect and abuse. The picture painted by the SCRs themselves is somewhat different. In only three cases was there unambiguous evidence that parents and carers were directly responsible for the harm the child suffered. In only one case were local authorities unaware of the challenges faced by the families or of the risk to children. There were several examples of healthcare actually contributing to the harm. And the claims and recommendations highlighted in the briefing don’t accurately reflect the evidence in the SCRs.

The SCRs highlight important factors in the children coming to harm that the NSPCC briefing fails to mention. In order to understand how home education fits into the bigger picture, it needs to be seen in the context of those other factors. This is the first in a series of posts about the factors touched on but not explored by the briefing, including legislation relevant to home education, the evidence for claims and recommendations, and the systems factors that affect the way public sector services function.

Before I start I should declare an interest. At the beginning of my brief teaching career I taught two children who’d previously been home-educated and through them met home-educating families. I ended up educating both my own children at home for several years – through necessity rather than choice in my case, but it means my perspective on home education might be a bit different to that of people whose job is safeguarding children. Also, I need to point out that I could find some of the SCRs cited in the NSPCC briefing only as executive summaries and one only as an abstract, so my information could be incomplete.

In this post, I look at the legislation relevant to elective home education (EHE) – that is home education that’s undertaken by choice rather than because a child is unable to attend school.

education legislation

Under UK law, parents have primary responsibility for their children’s welfare and education. Unusually for legislation – which tends to prohibit things – the law gives parents a duty in relation to education;

“The parent of every child of compulsory school age shall cause him to receive efficient full-time education suitable—
(a)to his age, ability and aptitude, and
(b)to any special educational needs he may have,
either by regular attendance at school or otherwise.”
(s.7 Education Act 1996).

Educating children at home is one way of complying with this legal duty.

The criteria set out in s.7 that determine whether or not a child’s education is suitable date back to the 1944 Education Act and have been fairly well defined in rulings in specific cases. People working in education in the post-war period would have been very familiar with the idea that an education should be suitable to an individual child. It seems to be a more difficult concept for people more familiar with a standardized education system and highly specified local authority functions.

There are only two grounds on which a local authority (LA) should get involved with a child’s education, both aspects of the services that it provides. One is with its education services hat on – if the parent asks the LA to educate the child, usually by applying for a school place. The other is with its law enforcement hat on;

“If it appears to a local education authority that a child of compulsory school age in their area is not receiving suitable education, either by regular attendance at school or otherwise, they shall serve a notice in writing on the parent requiring him to satisfy them within the period specified in the notice that the child is receiving such education.”
(s.437(1) Education Act 1996).

If the parent fails to comply, there are further steps the LA can take including compelling the parent to send the child to a particular school.

That’s a brief summary of the law relevant to home education. In 2007 the Department for Children, Schools and Families issued guidelines for local authorities who were encountering increasing numbers of children being educated at home and were often perplexed about the legal situation. What people working in child protection seem to struggle with is not just the legislation so much as the principles behind it. If the principles are clear, the legislation makes sense. If they’re not clear, it doesn’t. Here’s an outline of the principles.

principles underpinning home education legislation

1. Under UK law, parents have primary responsibility for their children’s welfare and education. There’s a good reason for that, and it’s not just a hangover from an era where women and children were regarded as the property of husbands and fathers. Although some parents do cause their children harm, parents tend to have a much better track record than institutions when it comes to bringing up kids. The history of institutional care is littered with failure, not only to protect vulnerable people from incidental harm, but also to protect them from abuse by the people paid to look after them, and abuse by the institutional system itself – think enforced adoption, sterilization and incarceration.

2. Under UK law, welfare and education are seen as distinct issues and are dealt with by distinct pieces of legislation. That’s because they are different things; a child could have access to good education but be at risk of harm, or be quite safe but poorly educated. Ultimately, welfare is more important than education. If you’re being maltreated you can’t make the most of your education, and you can catch up on missed educational opportunities but you only get one shot at childhood. So, rightly, legislation gives LAs greater powers in respect of safeguarding than in respect of home education.

3. The primary function of a local authority is to provide services for local people. The term ‘authority’ refers to its duties and the powers delegated to it so it can carry out those duties. It doesn’t mean that a local authority is in charge of local people; it’s the other way round – at least in principle. Because LAs have much greater resources at their disposal than individuals, the law is weighted in favour of the individual – LA powers are subject to various limits, checks and balances in order to prevent those powers being abused.

4. Local authorities and government agencies are authorized to intervene in the private lives of individuals without their consent only in a limited set of circumstances. One is if there is reasonable cause to suspect that an individual has broken, or is about to break, the law. In the case of child welfare it’s if an LA has reasonable cause to suspect that a child is at risk of significant harm (s.47 Children Act, 1989). In terms of education it’s if it appears that the child isn’t receiving a suitable education (s.437(1) Education Act 1996). In both sets of circumstances LAs have power only to ‘make enquiries’ initially. If the enquiries show that a child is being harmed or isn’t getting a suitable education, further steps can be taken that could go so far as removing the child from the parent’s care or ordering the parent to send the child to school.

The point at which ‘the authorities’ are entitled to make enquiries has always been a bit of a grey area. It got even greyer with the introduction of the Children Act 2004. S.11 gives various authorities a proactive duty in discharging their functions to safeguard and promote the welfare of children. Many LAs appear to have interpreted this as meaning they, rather than parents, have ultimate responsibility for the safeguarding and welfare of children. This perception was reinforced by the aftermath of the Baby P case in Haringey. Not surprisingly, LAs feel uneasy if they can’t keep an eye on children, and that seems to have fuelled calls for increased regulation of home education.

the perspective of the NSPCC briefing

With those main principles in mind, it becomes more apparent where the confusion lies in the perspective taken by the NSPCC briefing. It’s summed up in this quotation from Birmingham Local Safeguarding Children Board (LSCB) claiming that there is a

major safeguarding flaw within home education legislation which focuses on parental choice and rights at the expense of children’s rights, wishes, welfare or protection.

Framing legislation relevant to home education in terms of rights, and conflating safeguarding and education both muddy the water. Let’s look at rights first.

rights

Home education legislation was framed in terms of ‘a balance between the rights of the parents and the rights of the child’ by Graham Badman in his review of elective home education in 2009. Many local authorities have adopted the same conceptual model. Badman goes on to say ‘I believe that balance is not achieved through current legislation or guidance, and the imbalance must be addressed’ (p.3). I suggest that what’s actually flawed is not the legislation, but some of the assumptions being made about the legal framework it’s based on.

The term ‘rights’ is used several times in the NSPCC briefing. But the rights referred to are not all the same sort of rights, nor do they all carry the same weight in law. They range from rights enshrined in the UN Convention on the Rights of the Child, through principles underlying recent government policy (e.g. parental choice in education) to powers they would like the local authorities to have (e.g. to enter the home and interview the child alone). Lumping together principles, duties, policies and legally unwarranted powers and calling them all ‘rights’ isn’t at all helpful.

Contrary to the view of the NSPCC briefing and Birmingham LSCB, legislation relating to home education doesn’t focus on ‘parental choice and rights’ but on ensuring that each child gets an education suitable to them as an individual. The parental ‘right’ or ‘choice’ to educate a child at home is derived from that legal duty and is subject to those criteria. It isn’t derived from the principle of consumer ‘choice’ that underpins the market model of education popular with recent governments, and shouldn’t be confused with it. (An education system designed around the performance of the average child of a particular age should take note.)

welfare and education

Under UK law, welfare and education are seen as distinct issues and are dealt with by distinct pieces of legislation. In each case, LAs can make enquiries and take further action if they have reasonable cause to suspect a child is at risk of significant harm or if it appears they are not receiving a suitable education. In some of the SCRs, local authorities have clearly seen the absence of powers to monitor the way children are educated as an obstacle to their monitoring them on safeguarding grounds. But having no grounds for making enquiries about a child’s education doesn’t prevent LAs from making enquiries if they have reasonable cause to suspect a child is at risk of significant harm.

The briefing also appears to misunderstand the way the law approaches risk. Before moving on to that point, I want to look more closely at the claims the briefing makes about the risks to home-educated children, and the way it evaluates the recommendations from the SCRs.

Note

Edited to clarify the wording of the legislation.