Home education: the consultation

I’ve just submitted my response to the government consultation on home education (closes 2 July). The consultation documents (a call for evidence, and proposed guidance for local authorities and for parents) are the most poorly drafted I’ve ever seen. Home education is an obscure area of the law. Here’s why I’m interested…and why you should be too.

it’s confusing

Home education is described as ‘elective’ because parents choose it. There wasn’t much choice in our case. One kid wasn’t well enough to continue attending school, but the local authority (said it) couldn’t provide home tuition because the consultant couldn’t give a date for return to school. School provision for the other fell apart after the school’s brilliant SENCO left and we couldn’t find a nearby suitable alternative.

When we started home-educating, the LA offered a visit from an ‘adviser’. I accepted – I did have a few SEN questions.  But the ‘adviser’ said he couldn’t advise because home education was my responsibility; his job was to assess the suitability of my provision. He arranged for a colleague with SEN experience to visit. The colleague was willing to advise, but his advice contradicted that of the occupational therapist. I didn’t accept any more home visits.

My local authority isn’t the only one confused about its duties towards home-educated children. At least two sets of government guidelines have been issued to clarify LA obligations, the most recent in 2007. In 2009, the then Labour government commissioned a review of elective home education by Graham Badman, newly appointed chair of Haringey Local Children’s Safeguarding Board in the wake of the Baby P tragedy. (I’ve blogged about the political background to the Badman review here.)

it’s the law

The current legislative model for home education starts with an education suitable for the individual child. Parents have a legal duty to cause their child to have such an education (s.7 Education Act 1996) – wherever it takes place. LAs should make enquiries ‘if it appears’ a child isn’t receiving a suitable education (s.437(1) EA 1996), and must make arrangements for identifying children not receiving a suitable education (s.436A EA 1996).

In other words, parents are assumed to be complying with the law unless there is evidence indicating they might not be, at which point the LA can take action. This model is commonly applied in respect of other legal duties for individuals (e.g. taxation, vehicle registration). It’s not watertight – no model is – but it’s the most effective approach we’ve found to date.

Graham Badman’s conceptual model of the legislative framework was different. He saw home education as requiring a ‘balance’ between the parent’s and the child’s rights. But parents don’t have a ‘right’ to home educate, they have a duty to provide a suitable education. And legislation has to take into account the interests of different parties within the existing legislative framework, not to ‘balance’ rights regardless of the framework.

Badman’s conceptual model was way off the mark, but at least he explained it, and his recommendations were internally consistent with it, even if they were at odds with the legislative framework. The new proposals are all over the place.

why consult?

The consultation was prompted by “lacunae or shortcomings in the current legislation which have been drawn to the department’s attention by local authorities and by local children’s safeguarding boards” (2.3)*, i.e. organisations experiencing ‘confusion’ (2.3e), being involved in frequent disputes with parents (5.4), and for whom the previous guidelines had to be written. Despite very diverse views about legislation amongst home-educating families, there’s no indication they were involved in framing the consultation documents.

Local authorities’ main concerns are:

  • Home-educated children being radicalised.
  • Children attending unregistered schools under the guise of being home-educated.
  • LAs being unable to identify children not receiving a suitable education unless they know the identities of home-educated children, can find out whether or not a child’s education is suitable, and can monitor it regularly.
  • Home-educated children might be at risk of harm.
  • Some parents “willing and able to be fined repeatedly can continue unsatisfactory provision of home education indefinitely” (L6.20).

The focus of the consultation documents is on compiling registers of children and the sanctions that can be imposed on parents who don’t co-operate with the local authority, rather than on how best to ensure all children get the suitable education defined in law.

Proposals for change include;

  • compulsory registration of home-educated children
  • regular monitoring
  • LAs should have access to the child
  • LAs should know the views of the child about home education
  • not receiving a suitable education constituting a safeguarding issue.

The first three proposals have long been on the LAs’ wishlist because LAs believe those measures will pick up children not receiving a suitable education or at risk of harm. There is no evidence to support that belief. In fact, any evidence was noticeable by its absence from the consultation documents.

absence of evidence

Local authorities frequently see the majority of children getting a perfectly adequate (often very good) education in schools. They rarely see the substantial number who end up not attending school, in pupil referral units (PRUs), or being educated at home.

They also see a very small number of shockingly memorable cases of children educated at home who are neglected or abused. What they don’t see is the large number of home-educated children who get a perfectly adequate (often very good) education at home, and are completely safe and well.

I can’t find figures for the number of school attendance orders issued by local authorities – which suggests it’s very small. Fewer than 0.4% of home educated children had child protection plans in 2009 (see the parliamentary exchange about that here ). And in none of the cases of neglect or abuse cited as examples of the risk to home-educated children, have the children been previously unknown to the authorities. In fact, in several of the cases cited by the NSPCC, the failure of the authorities to follow procedures properly contributed to the harm experienced by the child.

If you don’t have evidence of the extent of a perceived problem, or of the effectiveness of your proposed solutions, your argument is based on speculation, and speculation knows no bounds. As a consequence, the consultation documents:

  1. cherry-pick human rights

States that have ratified the United Nations Convention on the Rights of the Child or are party to the European Convention on Human Rights must have regard to all the Articles when they legislate – not just those that support recommendations governments happen to think are a good idea. The Articles about a private family life weren’t mentioned.

  1. ignore legislative principles

Even when human rights conventions were a mere twinkle in the eyes of politicians and lawyers, UK law enshrined principles such as the presumption of innocence, protection from undue state intervention, and reliance on evidence. The consultation documents blithely ignore all three.

  1. change the wording of the legislation

Some legislation is cited inaccurately in a way that changes its meaning e.g Part V Children Act 1989 (L7.8) – the ‘reasonable cause’ threshold.

  1. extend the original scope of the legislation

For example, the duty to make arrangements to identify children not receiving a suitable education (s.456A EA 1996), is turned into a duty to find out whether or not a child is receiving a suitable education, exceeding the ‘if it appears’ limitation imposed by s.437(1).

  1. cite irrelevant legislation

For example in L9.4c, s.13 EA 1996 (availability of primary and secondary education) and s.175 EA 2002 (general duty to promote and safeguard children’s welfare). Some legislation is referred to despite being described as irrelevant e.g. s.17A Children Act 1989 (L10.2).

  1. conflate education and safeguarding

Despite warning against conflating education and safeguarding, which are distinct issues in law, section 7 of the guidance for LAs and section 5 of the guidance for parents proceed to do precisely that. These very muddled sections appear to be the result of LAs wanting a way to deal with the small number of parents mentioned in L6.20.

  1. assume average is normative

Requirements and advice for schools are cited despite being irrelevant to home-educated children e.g. L9.4. Children vary widely – they are not departures from the ‘average’ (L9.4e).

  1. focus on bureaucracy

The focus of the law is on an education suitable for the individual child. The focus of the consultation, in contrast, is on compiling a register of children not receiving an education suitable to the average child, and on compliance by local authorities and parents.

  1. offer sanctions not support

The consultation emphasises sanctions that can be imposed on parents who fail to co-operate with LAs. Significantly it does not propose a statutory duty for local authorities to provide advice and support for home educating families. This calls into question the claim that children receiving a suitable education is a local authority’s chief concern.

take home lessons

Whoever drafted the 2007 EHE Guidelines understood the legislation, its purpose and the principles behind it. The current consultation documents appear to have been drafted by someone who sees legislation as being about people’s views; and whoever cites the most pieces of legislation bearing a superficial resemblance to their view, wins.

For many children, home education is their last shot at getting a suitable education. If there’s evidence that home education is causing them significant problems, let’s see it. If there’s evidence to support the proposed changes to the law, let’s see that too. And consult on that, not whatever local authorities think would make their lives easier regardless of the impact it might have on local families.

If the Department for Education can produce consultation documents as poor as these in respect of home education, they can do it for other areas of education too.  Parents of children with SEND, beware!

 

*References in brackets are to the consultation document. References prefixed L are the proposed guidance for LAs.

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Home education: politics

Something that perplexed many home educating parents in 2009 was why a major review of the legislation should be commissioned only a year after the publication of the Elective Home Education Guidelines. It was clear many local authorities and other bodies weren’t happy with the status quo: what wasn’t clear was why.

Sharon Shoesmith’s book Learning from Baby P published in 2016, offers a convincing explanation – even though she doesn’t mention home education at all. I’ve blogged about her book previously.  The issues are important ones not limited to home educating families.  Here’s a slightly abbreviated version of my original post.

In August 2007, a toddler living in the London Borough of Haringey died. 18 months later on 11 November 2008 his mother, her boyfriend and her boyfriend’s brother were convicted of causing or allowing the child’s death. The toddler was Baby P, eventually named as Peter Connelly.

Media interest was intense. On the day of the conviction, Sharon Shoesmith, director of Haringey’s children’s services, and Jane Collins, CEO of Great Ormond Street Hospital (GOSH) held a press briefing that mentioned the disciplinary proceedings against individual social workers finding no evidence of gross misconduct. On the following day, November 12, the Department for Children, Schools and Families (DCSF) issued a press statement condemning the behaviour of those convicted.

Later that day, at Prime Minister’s Questions, Gordon Brown (then PM) appeared to be taken by surprise by David Cameron’s (then Leader of the Opposition) criticism of the way Haringey Council had responded to Peter Connelly’s death. Cameron asked who was taking responsibility and why no one had resigned. He followed up his attack later with an emotive article in the Evening Standard, and the next day with a letter to the Sun. The Sun launched a petition calling for Sharon Shoesmith, the social workers involved, and a paediatrician at GOSH to be sacked, and by the weekend the petition had 1.4 million signatures. The Government’s reaction triggered a chain of events culminating in a ‘perfect storm’ that had significant, far-reaching repercussions for national and local government, the news media, social work as a profession, children’s services, individual social workers, and vulnerable children.

the government response

The Government’s response to the criticisms was swift and robust. A press officer was sent to Haringey Council and on 1 December the Council leader, and the cabinet member for children and young people, resigned. Ed Balls, Secretary of State for Children, Schools and Families announced in a press conference that he was replacing Sharon Shoesmith with John Coughlan, then director of children’s services in Hampshire, and appointed Graham Badman, previously director of children’s services in Kent, as chair of Haringey’s Local Safeguarding Children Board. A week later, Shoesmith was formally dismissed by Haringey Council.

Shoesmith didn’t take her sacking lying down. She appealed and in 2011 the High Court ruled that Ed Balls and Haringey Council acted unlawfully in dismissing her. By 2015, she had completed a PhD analysing the psychosocial factors involved in the aftermath of Peter Connelly’s death. In 2016 she published Learning from Baby P, which draws on her research.

Shoesmith points out that by late 2008, the ‘New Labour project was running into trouble’ (pp.123-127). Gordon Brown had taken over from Tony Blair as PM the previous summer, but in May 2008 Labour had had its worst local government election results for 35 years and Labour’s attempts to reduce child poverty were faltering. In October the Healthcare Commission’s investigation into the Mid-Staffs scandal revealed significant failings, and the global financial crisis prompted a £500bn rescue package for UK banks.

Cameron’s framing of Peter Connelly’s death in political terms had significant implications for the Labour government. Their flagship strategy Every Child Matters couldn’t be seen to fail, nor could Ed Balls, who had previously been Brown’s chief economic adviser. Then there was Haringey. Haringey had a history of what Shoesmith calls ‘defining events’. It had witnessed the Broadwater Farm riots in 1985, and the death of Victoria Climbié in 2000 that had led to the Laming Inquiry and significant changes in child protection policy. In addition, Haringey Council had long been perceived as hailing from the ‘loony left’; understandably a centre-left government might want to distance itself. Lastly, the government felt compelled to align its narrative with that adopted by large sections of the public and press – that public sector services should be seen to take responsibility for Peter Connelly’s death.

All three key political figures – Cameron, Brown and Balls – used the press directly to manage the political narrative.  It could be argued that the press used politicians to the same end. In July 2007, six months after he’d resigned as editor of the News of the World following the conviction of two reporters in the phone hacking scandal, the Conservative Party had appointed Andy Coulson as its director of communications. The Sun, another News International paper, had a history of campaigning for changes in the law as a result of high profile child abuse cases. During the Leveson Inquiry into phone hacking, it was suggested that after the Baby P trial the Sun put pressure on Ed Balls to order resignations (p.183). The issue of resignation warrants further comment.

it’s a resigning matter

In 2004, the offence of ‘causing or allowing the death of a child or vulnerable adult’ was introduced to close a legal loophole. Although the offence can be committed only by people living in the same household as the victim (such as Peter Connelly’s), its title begs the question of whether police officers, social workers or paediatricians might be brought into the frame, something that could be inferred from David Cameron’s Evening Standard article (p.144).

But there’s another factor involved in the calls for sackings; it’s the assumption that if a public sector worker failed to prevent the death of child, they would have been able to prevent it if they’d acted differently. That’s nonsense of course. Even if a child were taken into care or a social worker were to live with the family, no child can be totally protected from harm. But the idea that children can be fully protected persists. Cameron, Brown and Balls all vowed to ensure that nothing like Peter Connelly’s death happened again (p.178) – even though, in reality, such promises are meaningless.

Child protection had become a political football and government, opposition and the media were vying for control of the ball. Ironically, the outcomes had significant negative repercussions for vulnerable children. Directors of social services became very nervous about their jobs, and social worker recruitment and retention, already under strain, became even more challenging, further increasing the vulnerability of the children social workers were dealing with. Local authorities made sure they erred on the side of caution; between October 2008 and March 2012 the number of applications for care proceedings increased by 79% (p.19).

elective home education and the Badman review

The ‘Baby P effect’ rippled out to another group of children Shoesmith doesn’t mention – those educated at home. Home education has long been a contentious issue, and in November 2007 Jim Knight and Andrew Adonis at the then Department of Education and Skills, published guidelines for local authorities.  A year later, in January 2009, Ed Balls announced a review of elective home education. The review was framed in terms of home educated children being ‘hidden’ and home education being used as a cover for child abuse, even though there appeared to be no robust evidence of this actually happening.

The review was led by Graham Badman, introduced as the former director of children’s services at Kent County Council. A month earlier, Balls had appointed Badman as chair of Haringey LCSB, but unless they’d been following the news closely, most home educating parents wouldn’t have made a connection with the Baby P case. They would also have been unaware that in May 2008, seven year-old Khyra Ishaq had starved to death at her home in Birmingham. She had been educated at home for the previous six months. Khyra’s death came to public attention only in June 2009, when the trial of her mother and her mother’s partner began. Her death was presented as reinforcing the government’s call for reforming the law relating to home education, rather than as a trigger for the review happening in the first place.

In 2009 Graham Badman was busy. In November 2008 he’d set up an education consultancy, Nektus, that carried out two local authority progress reviews in its first year.  In December he’d been appointed Chair of Haringey LCSB.   In January 2009 had become a visiting professor at the Institute of Education, and Acting Chair of BECTA – being appointed Chair on 1 May. He became a Trustee and Board member of UNICEF in July. His elective home education report was published on 11 June, and his recommendations accepted in full the same day by Ed Balls.

Given all these commitments, it’s not surprising that more than one organisation complained that Badman’s account of what they said to him wasn’t quite what they recalled saying, and that Graham Stuart MP, a member of the Children, Schools and Families Select Committee, felt obliged to point out that Badman had made a significant sampling error in his assessment of the risk to home educated children.

The full government response to the Badman report wasn’t published until October 2009, towards the end of the public consultation, so many people who responded wouldn’t have read it. Throughout the review, I got the strong impression that the Government didn’t see those who disagreed with the proposals as citizens expressing their opinions, but as political opponents.  The high number of responses to the consultation prompted references to an organised campaign, despite the wide diversity amongst home educating families.

Conservative MPs had, not surprisingly given the political overtones of the review, been quite supportive of home educating parents. In December 2009, a record number of petitions protesting against the proposed changes to the law were presented to Parliament, a strategy initiated by Graham Stuart.  The Government planned to include the Badman recommendations in the Children, Schools and Families Act 2010, but instead they were abandoned in the ‘wash up’ prior to the 2010 General Election.

learning from the Baby P effect

The primary task of government, national and local, is to protect our liberty to go about our lawful business without let or hindrance. Obviously, there are going to be instances where legislation that protects one group of people infringes the liberty of another group – the law has to weigh up the various interests of different parties. On the face of it, it looked as if that the actions of government, opposition and press in the wake of Peter Connolly’s death could result only in beneficial outcomes for vulnerable children. But their focus was on only one aspect of child protection.

Other aspects got completely overlooked, including local authority priorities (disabled children are also children in need but LA thresholds for support are set so high many disabled children get no social care support), social worker recruitment and retention and the consequent impact on vulnerable children, and children being taken into care unnecessarily. The proposals for home educated children, such as social workers being entitled to enter the family home and to interview children alone had significant implications for a number of important legislative principles.

Government, opposition, and the press, framed child protection solely in terms of the behaviour of individuals, whether they were adults who might harm children directly, social workers who might fail to prevent harm, or elected members of local government responsible for implementing national policies. Little attention was paid to key legislative principles, the effectiveness of legislation, local authority resources, the impact of the government’s action on social workers and senior local authority officers, and on children deemed to be at risk when they weren’t. Good legislation requires careful thought and wide consultation, not a knee-jerk response to a party political attack. If government is seen as a party political project, rather than an institution that exists to serve the population, it puts everyone’s welfare in jeopardy, not least that of vulnerable children.

reference

Shoesmith, S (2016).  Learning from Baby P.  Jessica Kingsley Publishers

 

 

 

 

 

 

 

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.