Home education: legislation

In England, parents can educate their children at home if they wish. It’s been estimated there might be as many as 50 000 children being educated at home. Home education tends to trigger strong opinions, including calls for the relevant legislation to be tightened up. In the next two posts I’ll attempt to summarise the legislative framework, the key features of recent home education debates, and the political context.

In November 2007, soon after Ed Balls became Secretary of State, the then Department for Children, Schools and Families (DCSF) revised the Elective Home Education Guidelines for Local Authorities*. The guidelines were advisory only, but provided a clear explanation of the relevant legislation and powers and duties of LAs. In general, home-educating parents welcomed the guidelines.

In January 2009 the DCSF commissioned a review of elective home education, by Graham Badman, previously Director of Children’s Services at Kent County Council.   Badman’s 28 recommendations were published in June that year, and accepted in full by the government. A public consultation concluded in the October. There was considerable opposition to the recommendations from parents and from Conservative MPs. The recommendations didn’t become law; they were abandoned in the ‘wash up’ prior to the May 2010 general election.

To understand the Badman recommendations and the ins and outs of home education, an overview of the relevant legislation and the principles underpinning the legislative framework is important. This is my understanding of them. I’m happy to be corrected if wrong.

principles

A fundamental principle in a liberal democracy is the liberty of people to live their lives how they wish, unless that prevents others exercising their own liberty.  A primary function of government is to protect liberty –  by defending against attack and by maintaining law and order.

The law protects liberty too; it’s unlawful to go round killing people or stealing their stuff, for example.  The law also protects liberty from abuse by government. A person is presumed innocent until proven guilty, and agents of government have to have reasonable cause to believe that a breach of the law is involved before even beginning an investigation. These safeguards are important in protecting individuals against harassment by those in positions of power.

A further principle is that legislation should be demonstrably necessary, i.e. should be evidence based. The number of ways in which people’s liberty can be infringed is almost infinite, so legislating against every possible risk would be impossibly burdensome.

The legislation pertaining to home education is firmly grounded in these principles.

legislation

In England, every child is entitled to a suitable education. That entitlement is framed in terms of a duty placed upon parents, set out in s7 Education Act 1996 (the specific meanings of the terms are explained in the 2007 Guidelines):

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.

One reason for allocating this duty to parents is that overall, they have a much better track record than the state when it comes to looking after children. Most parents delegate the task of educating their children (though not the legal duty) to schools. But it could also be delegated to a private tutor, or the parent could educate the child. The duty frequently prompts the question:

what if a parent doesn’t provide a suitable education?

The law’s answer is s437(1) Education Act 1996 (the Guidelines explain the steps that local authorities can take):

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.

This inevitably begs another frequently asked question:

what if a local authority doesn’t know the child isn’t getting a suitable education?

The Badman Review responded with Recommendation 7; that children’s progress be monitored, that LA officers have right of access to the home, and have the right to speak with each child alone to satisfy themselves that the child is safe and well (p.40).

If your focus is the education and welfare of children, this recommendation might look entirely reasonable.   In fact it’s highly problematic because it runs completely counter to principles underpinning the UK’s legislative framework.

The Badman Review was based on different underlying principles. Badman saw home education legislation as requiring a ‘balance between the rights of the parents and the rights of the child’ (p.3), a principle widely cited by local authorities and others. It sounds plausible, but legislation isn’t simply a matter of ‘balancing rights’. Rights are expressions of the fundamental liberty that’s an underpinning principle in a liberal democracy. Rights might or might not be enshrined in law in the form of specific legislation. New legislation has to comply with existing legislation and the principles underpinning the legislative framework, or it will be unworkable.

There are several problems with Recommendation 7. It:

  • abrogates fundamental legislative principles
  • gives LA education departments significantly greater powers than the police have when investigating suspected criminal behaviour
  • overlooks the knotty problem of the reliability of child testimony, something the courts have had to wrestle with, and with which all teachers will be familiar
  • assumes that a LA officer who has never met a child before is in a position to judge what is a suitable education for that specific child
  • conflates education with safeguarding.

The last point brings us to a third FAQ:

what if a child is at risk of harm?

This question has dominated the discourse about home education. The scenario many public bodies have in mind is that if a parent wants to exploit, traffic, indoctrinate, or in any other way cause harm to a child, home education offers perfect cover, because local authorities don’t have powers to see the child.

What this line of reasoning overlooks is that the law treats education and safeguarding as two different things, and with good reason; a child could be getting a good education but be at risk of harm, or be safe and well but not be receiving any education at all.

The law’s answer is s47 Children Act 1989:

Where a local authority … have reasonable cause to suspect that a child who lives, or is found, in their area is suffering, or is likely to suffer, significant harm, the authority shall make, or cause to be made, such enquiries as they consider necessary to enable them to decide whether they should take any action to safeguard or promote the child’s welfare.

The conflation of education and safeguarding has resulted in much avoidable confusion. Several tragic cases have been cited as evidence that monitoring of home-educated children is necessary.   In a 2014 briefing, the NSPCC cited seven such cases. On closer inspection, it transpired that the authorities were involved in each case. In some, they were very closely involved, and in some actually contributed to the harm the children experienced. Around 70% of the recommendations in the relevant Serious Case Reviews related to procedures being properly followed or to healthcare. I’ve blogged about the cases in more detail here.

It’s possible, of course, that there are home-educated children at risk of harm, hidden and unbeknown to the authorities, but home education has been lawful since at least 1944, and to date no such examples appear to have come to light. Those children must be extremely well-concealed or their number is vanishingly small.   Either way, there is insufficient evidence to warrant the regular monitoring of home-educated children on safeguarding grounds.

educational support

But what about educational grounds? Personally, I think there’s some justification for a register, although that raises constitutional questions. But if anything, it should be a register of all local children, not just particular groups. And not the huge national database proposed by the previous Labour government either; there are known problems with such databases that could have catastrophic outcomes for children.

I also think there’s some justification for giving local authorities a duty to support home educating parents. I’ve previously proposed an educational resource centre, for public use, using the funding schools lose when children are taken off their roll.

The purpose of local authorities is to provide services to local people, and the Badman Review did recommend support – but almost always in the context of monitoring. This would create a bizarre Escher staircase of accountability; home educating parents would be accountable to LAs, who in turn would be accountable to them as local residents. The potential legal consequences could be challenging. Especially if parents were home educating children with special needs because who couldn’t access suitable local authority provision.  A resource centre, in contrast, could improve the quality of local education in general, and could reduce the risk of any child not getting a suitable education.

This post has discussed the legislative issues relating to home education. Most home-educators would have been unaware, during the Badman review, of the political context – the subject of the next post.

 

*’Elective home education’ is used to denote home education as a choice made by parents, as distinct from ‘education otherwise than at school’ (EOTAS) which usually refers to a local authority service for children who cannot attend schools.

 

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