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.

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7 thoughts on “NSPCC briefing on home education: the law

  1. Thanks for this. The NSPCC briefing was sketchy and rubbish and didn’t evaluate the recommendations at all. Could have been knocked up in half an hour copy and paste from the SCR the NSPCC wrote for Birmingham. There’s no reason to think the author had access to the full SCRs or IMRs in other cases. I’ve written an analysis of all the cases but think it might backfire to draw attention as you can never be sure people will take the lesson you want from what you are saying.

  2. Hi, no my analysis isn’t available online. I did plan to publish it till I saw how utterly inept and perfunctory the NSPCC thing was. I’m keeping it in reserve though, happy to explain more about my reasons in a PM.

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