20 October 2009 by Jennifer
Partly a sort of guest post from Clare M – see below for a copy of her response to the Government’s consultation on Elective Home-based Education legislation.
I’ve had the chance to see a few other people’s responses to the EHE consult.
It’s been interesting to compare my responses to other people’s. A lot of people have gone a lot more than I did into the question of liberties, privacy and the relationship between family and State. It really illuminated for me what a natural pragmatist I am. A lot of the time, the first place I go is “How would this work in practice? Would it work? Here’s a way it would be likely to go wrong”.
It’s not really two separate things of course. When the State starts encroaching on individual liberties, things do go wrong, and that’s part of why people care about the principles involved. But it’s a different level of immediacy.
It’s not that one kind of response is better than the other. I think we need both. There are people who would be unmoved by arguments of liberty, for whom pointing out “But it wouldn’t even work” may yet have them questioning “Hmmmm, maybe this isn’t such a good idea…”. But if we only made practical arguments, we’d be in danger of losing sight of the vital foundations. Writing mine, a couple of times I had to stop and think “Am I accidentally colluding here with the idea that this arrogation of power would be OK if only it were done competently?” So I’m glad that people have “got my back” on that one :-)
Clare’s response, which she copied on Sunday night to an email list we’re both on, was one I liked for its principled stand, and for the way it challenges the conflation of education and child protection. She also knows more about the legal history than I do.
Clare’s not got a blog, so I asked if I could put a copy up here so it’d be on the web. So here it is, a sort of “guest post”:
1 Do you agree that these proposals strike the right balance between the rights of parents to home educate and the rights of children to receive a suitable education?
The consultation document appears to infer that registration and monitoring is a foregone conclusion and that this consultation is no more than a public relations exercise. I hope this is not the case.
These proposals would completely upset and contradict the balance created by the Education Act 1996 Section 7, which perfectly matches the duty of the parent to cause their child to receive a suitable education, with the right of the parent to choose to do that otherwise than at a school. This provides that a parent “may” choose the otherwise option but “must” ensure the child receives a suitable education, thereby protecting the child’s right to education.
This is supported by the right (ECHR Article 2 of Protocol 1) of the child “not to be denied” an education and by UNCRC Article 28 which says, “States Parties recognize the right of the child to education…”.
Current legislation also provides adequate measures for the state to intervene where this balance is not struck; where a parent chooses home education but does not ensure a suitable education, Education Act 1996 Section 437 is invoked.
What the proposals would do is shift the balance away from both the child and the parent and give undue and unnecessary weight to the state.
Further, it is disingenuous to infer that if a child is home educated that UNCRC Article 12 cannot be adhered to unless LAs can interview them; Article 12 requires that where a child is capable of forming their own views, state parties shall ensure a right to express those views and “in particular be provided the opportunity to be heard in any judicial and administrative proceedings affecting the child, either directly, or through a representative or an appropriate body”. This article is not about conferring a power on the local authority to directly seek a child’s view; rather it is about conferring a right upon the child for all sorts of state bodies to listen to them if and when they wish to express a view. The state must not try and usurp this right, designed for children, to meet their own agenda.
It provides that where a child wishes to express a view, they may or may not choose to express that view directly themselves.
Also, if a child is capable of forming their own view, it follows that they are capable of deciding when and to whom they wish to express that view.
A local authority may therefore, in general, advertise the possibility for children to have their view heard by the authority, but may not approach individual children for that view.
To insist on seeking the child’s view in all instances would be to shift the balance and give undue and unnecessary weight to the state. It is also a direct insult to all home educating parents as it infers that they cannot be trusted to listen to the view of their child, whereas a large majority are possibly home educating precisely because they listened to and acted upon that view.
Furthermore, unless the child is not in receipt of a suitable education, even if their view is that they would prefer a school education, the LA has no power to insist on a school education, any more than they have the power to insist on a home education for those school children who, if their view was sought, would express a preference for a home education.
2 Do you agree that a register should be kept?
It is completely discriminatory to choose to keep a register of adults or children who are doing nothing other than making a perfectly legal choice not to avail themselves of a public service.
It infers that home educating parents are all so likely to be liars and criminals as to need automatic government oversight.
It stigmatises home educating children when the state looks upon them as being at risk by virtue of their own or their parent’s choice of lifestyle.
It undermines the status of the family and the relationship of the child to the parent to infer to the child that their parent is not trustworthy.
There is also no logical reason to keep a register. Arguments have been put forward about needing to know numbers of children in order to provide services, to prevent children from missing education and to prevent abuse in families not known to the state.
First, services demand cannot possibly be calculated by starting with the number of the whole possible customer base, even if it were possible to attain that figure, which it is not, due to the flux in the population.
Second, such a register would not detect children missing education for several reasons; it is in my view very likely that those not providing an education would not feel compelled to register; to know who is missing education requires knowing who is in the area which is not a figure consistently available to the LA; and by definition, those children receiving a home education are not missing education any more than are those registered at a school, so the register would be meaningless.
3 Do you agree with the information to be provided for registration?
No. I don’t agree at all with the basic premise of a register so it follows that of course I don’t agree with insisting on any information for such a register.
The proposal to insist on a statement of educational approach, intent and desired/planned outcomes is arrogance and interference by an authority that has lost sight of its boundaries; when a family choose the option of completely private self-provision, it is absolutely nothing to do with the state what approach or plans etc that family have.
The state have no further role whatsoever with regard to the child’s education unless and until it is brought to their notice that there is reasonable cause to believe the child is not in receipt of a suitable education.
This proposal is the work of a mindset that does not understand the threshold between public and private and that is a very dangerous foundation for driving policies and legislation that affects children’s lives.
4 Do you agree that home educating parents should be required to keep the register up to date?
No, of course not. There should be no register and in any case private individuals cannot be saddled with the responsibility of keeping government databases accurate, especially in light of government’s own inability to be trusted with holding, maintaining and securing such information.
5 Do you agree that it should be a criminal offence to fail to register or to provide inadequate or false information?
No. Again, I do not agree with a register in any form. Nonetheless, I cannot see how it could possibly be of any benefit to a child’s education or welfare to criminalise their parent for failure to register, register adequate information or supply false information.
Also, making these failures a crime would not be likely, in my view, to deter those who might have evil or neglectful intentions toward their children, from not registering “properly” or at all; conversely, those with evil or neglectful intentions would not automatically be “flushed out” by registration.
6 a) Do you agree that home educated children should stay on the roll of their former school for 20 days after parents notify that they intend to home educate?
No. When a parent notifies a school, as they are required to do, that they are providing an education otherwise than at school, this is not notice of an intent to home educate, it is notice of home education and, as an immediate consequence according to the Education (Pupil Registration) Regulations 2006, it is an instruction to remove their name from the register – commonly known as deregistration on demand.
This proposal would create conflict with primary legislation and for that reason has already been corrected in 1995 and rejected in 2006 when the Education (Pupil Registration) Regulations were formulated.
The Education Act 1996 Section 7 provides that a parent may choose to cause their child to receive an education at school or otherwise; it does not imply any time restraints or other provisos except that the education must be suitable.
The Education Act 1996 Section 444 makes it an offence for a parent not to secure regular attendance of their school registered child. Therefore, this proposal creates a situation where a parent, by the action of another – ie the school or LA – commits an offence.
It would also bring undue pressure to bear on children who are being deregistered for their own security or well-being.
It would move the balance of rights and powers too far in the LA’s favour, which would greatly increase the risk of LA and school personnel bringing their preferences and prejudices to bear.
6 b) Do you agree that the school should provide the local authority with achievement and future attainment data?
No. Such information is no business of the LA once the child is home educated, unless the family wish the LA to have it. Therefore, this information should be archived and copied directly to the family for them to use as they choose.
A family may not wish to use such information to guide their home education and an LA cannot use it as a yardstick for what is a completely different education.
7 Do you agree that DCSF should take powers to issue statutory guidance in relation to the registration and monitoring of home education?
No. There is currently no provision in primary legislation to issue guidance for registering children other than pupils. To alter primary legislation to confer that power would involve making registration and monitoring compulsory, which I have already opposed above. It would also contradict current primary legislation and therefore be susceptible to judicial review.
It is also of enormous concern that statutory guidance is not subject to the same rigorous parliamentary scrutiny as primary legislation and often is subject to regular change. This leaves it wide open to being altered to suit the preferences and prejudices of Ministers and could be the thin end of the wedge that severely over-regulates home education by introducing clauses and provisos without proper consultation and scrutiny.
8 Do you agree that children about whom there are substantial safeguarding concerns should not be home educated?
No. It is frankly insulting to any child whose safety is at that level of risk, to suggest that going to school for certain hours and days will protect them. This is the sort of woolly thinking that emerges when one conflates education issues with safeguarding issues and actually puts children at risk rather than rescues them from it; another reflection of the inability to recognise appropriate boundaries.
If a child is not safe at home during school hours, they are not safe there at other times either; conversely, if a child is safe at home out of school hours, they are safe there during school hours.
However, school hours and safety have nothing directly to do with education. If a child is safe enough to be living at home they are safe enough to be educated there; the only contraindication is where the LA has found that the child is not in receipt of a suitable education.
Of course it is useful for education and welfare departments to be able to liaise where there are real concerns, but to automatically merge these separate matters as if they are one issue does neither service any justice. The relationship between parent and child can only deteriorate if the state automatically declares the parent not fit to educate, whereas the relationship may be improved by the experience of sharing this part of their lives more closely, especially if school had played any part in their difficulties.
9 Do you agree that the local authority should visit the premises where home education is taking place provided 2 weeks notice is given?
No. I do not agree with any requirement to accept a visit to the home or any other place utilised for home educating.
Homes are private refuges from the interference of all except those who are invited in, unless there is reasonable cause to believe that someone in that home is at significant risk. In those instances the state already has powers to intervene and by no stretch of the imagination could it be said that every home educated child is at significant risk.
Other premises used apart from the home are far too many and varied to possibly justify LA visits.
10 Do you agree that the local authority should have the power to interview the child, alone if this is judged appropriate, or if not in the presence of a trusted person who is not the parent/carer?
No. I think it is once again the result of a lack of recognition of proper boundaries that results in this sort of proposal. This is the sort of process that should only ever occur if there is strong evidence to suggest that the child’s boundaries have already been breached and that she or he is in need of protection.
To take this sort of action in the absence of such conditions would be to create exactly the situation it purports to prevent. It completely disregards a child’s privacy, personal space and right to have their views heard as they would wish them to be heard. It would send the message to the child that their parent is not trustworthy, that their own privacy is not important and that the state is allowed to do with them what they will and it is not within their own gift to prevent it. In my view this lays the foundation for that child to become the victim of all sorts of abuse as a child and later as an adult.
I sincerely hope that this proposal never sees the light of day.
11 Do you agree that the local authority should visit the premises and interview the child within four weeks of home education starting, after 6 months has elapsed, at the anniversary of home education starting, and thereafter at least on an annual basis? This would not preclude more frequent monitoring if the local authority thought that was necessary.
No. My view on this issue is the same as that expressed in response to question 9.
Apart from not agreeing with compulsory visits per se, this proposal leaves the frequency of these proposed visits, wide open to abuse by LA officers with personal prejudices or ignorance.