Learning, law and children’s rights

18 October 2009 by Jennifer

The Government want to give to Local Authority bods (not from Social Services), at their own discretion, the right to separate children from their parents and have a stranger interview them. Up till now, that’s been a power only available under very carefully controlled circumstances, and rightly so.

This proposal appears as part of proposed new laws for elective home-based education (EHE). But because of the legal precedent it would set, it’s relevant to all families.

I’m not impressed with their ideas about EHE, either, as you’ll see if you read on :-)

A bit of background

Earlier this year, a blokie called Graham Badman was lent some civil servants and asked to produce a report about whether home-based education could be a “cover” for child abuse, forced marriage or trafficking. He found there was no evidence for that, but went on to pontificate at length about other aspects of home ed, and recommended a lot of interference. The Govt is now “consulting” on this proposed interference.

Mr Badman backed up his ideas with some shaky stats which have since been taken to pieces rather thoroughly by researchers from the home ed community. Some other criticisms of the Report can be found here and here.

At the time of writing, there’s a “Select Committee Enquiry” taking place into the conduct of the Review and the writing of the Report.

As the Select Committee won’t report back for some weeks yet (maybe November) – and as there’s not yet been a published impact assessment or proper costings for the report’s recommendations – one might say it was jumping the gun a bit to be consulting on the implementation. But that’s what’s happening.

Some of my reasons for being deeply unimpressed with Badman’s scheme are presented in the consultation response below. There are other reasons too, which maybe I’ll write about another time.

Obviously I’m not saying the world of home ed could never have any dodgy people in it, but Badman’s shown so little sense of proportion, and so little understanding of false positives and other tricky factors, his ideas are i.m.o. very unlikely to help more actual children than they harm.

Me and writing about this

I’ve been finding it hard to write about all this for the blog, because non-school education is one of those areas that’s heavily framed by stereotypes. (It’s a bit like bisexuality in that way – a lot of people have the illusion that they know something about it, when really most of what they know is the popular myth, and the reality is different.) So as soon as I start to explain one bit, I realise I have to explain another bit as well, and it starts turning into a book! (By the way, there are some great books already about child-led learning and so on.)

So when I’ve wanted to talk about all the political stuff, I’ve mostly been doing it on EHE community lists. There, I have less need to add stuff to ensure that other people understand what I’m saying, because most of the other people there have the background already.

But I do want people-in-general to be aware of what’s going on. So in putting this up here, I’m kind of “dipping my toe into the water” of more public writing on the subject. And I hope it’ll be a bit of an intro to some of the issues, for my non-EHE-community friends and other people who might read this blog.

The issue of “registration”

Before I get into the actual consult, I should explain something.

Some readers may be surprised that registration with the Local Authority (LA) isn’t already compulsory for home ed families. “Isn’t the LA in charge of education?”

It makes sense when you remember the legal context, still the case, that parents are legally responsible for their child’s education. Section 7 of the Education Act 1996 says (italics mine): “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.”

So when you send a child to school, you’re delegating a set of roles and tasks to the school, but the ultimate responsibility is still yours.

Or, to look at it another way, schools are provided by the LA as a service – and usually one doesn’t have to register that one isn’t taking up a service.

Why the question of registration is coming up now is partly because Badman and the DCSF have been looking from a safeguarding perspective. The people in charge of Children’s Services think that school protects children against being abused – which in certain ways it sometimes somewhat does, though of course nothing like reliably. They want all EHE children inspected by the LA; some already are, but the LA doesn’t have the legal right to insist on educational grounds. And the general public tends to buy this line of argument, because aren’t all home-ed kids practically trapped in their homes without any friends and terribly deprived of ordinary human contact? (Not.)

So you get this rhetoric of “hidden” children, and people talking about the foster children of Eunice Spry – who of course had social workers already, and in fact had been in school when the abuse started. The whole “What if there’s a child locked in a cupboard somewhere” really gets people going – but let’s face it, if there were a child locked in a cupboard somewhere, their evil parent(s) wouldn’t register them under Badman’s scheme anyway! The whole area is a mass of woolly thinking… Meanwhile, many home ed children have already been “helpfully” reported to Social Services by neighbours, usually for not being at school in the day.

A note on tone

Some people may feel that I’m being unnecessarily negative about the role of Local Authorities – my choice of the word “interference”, etc.

People who know me know that I’m generally not especially inclined to negativity. And it’s not that I personally have had bother from our local people, yet (though the Government has eaten a lot of my energy with their repeated consultations on similar subjects, full of loaded questions).

But from other people around me in the world of EHE, I’ve heard story after story of LAs’ ignorance, insensitive comments to children, lies and “trying it on” about the legal position, etc etc – everything I mention below – and I’d have to be a fool to think the system was working well. People can “mean well” and still lack integrity. People can “mean well” and still fail to grasp the implications of what they’re doing and saying. Five years of following EHE politics has done more to lower my expectations of the state and the public sector than anything I’d encountered before.

Anyway, enough preamble. Here it is:

My consultation response

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?

[x] Disagree.

This is a loaded and wrongly-constructed question. The parents have a legal duty to ensure the education of their child, and an ethical duty to protect the best interests of their child. Parents need the right to home educate in order to fulfil the child’s right to a suitable education, since for many children, school fails either to provide them with a suitable education or to protect their best interests in other ways.

(Treehouse, the national charity for autism education, quotes a 2005 result that over a quarter of children with autism had been excluded from school on one or more occasions.

Bullying UK says “it is believed that around 16-20 pupils in the UK commit suicide every year” because of distress over bullying. The right to move to home-based education can save lives.)

Moreover, a genuine commitment to children’s rights would include paying attention to what they say themselves. Mr Badman’s report makes no mention of the scenario, which is likely to arise, where a child states that they do not want to be visited or interviewed by a Local Authority representative. Two informal surveys on this subject, covering 409 and 591 children (albeit not randomly sampled), showed that many children do feel this way. Even if this sample were not representative of all EHE children, we already know that at least a few hundred children don’t want to see LA personnel.

In the survey organised by Ann Newstead of Education Otherwise, one question asked children the following: “The Report wants local authorities to have the right to question you on your own, without your parent or “educator” present. Do you think this is right? If so, why and if not, why not?”

Here are some of the answers:

“I would find it quite scary to be interrogated by a stranger on my own. It’s unfair and wrong.”

“This would violate the rights of the child, exactly what this repports says it’s “protecting”. I can think back to being 6 or 8 or 10 or 12 and I would’ve been extremely anxious about being interviewed by strangers, I probably would’ve just cried. A situation like that would make me feel alone, scared, vulnerable, anxious, confused – an unnecessary amount of stress to put on a small child. What if the person interviewing me alone was like the lady who was working at the nursery in Plymouth? My parents would then be putting me at risk by allowing a stranger alone with me. What if the person was asking me leading questions? what if they misrepresented what I actually said? The police are not allowed into your home without reasonable suspicion of you committing a crime so why are home educating families being presumed guilty until proved innocent??”

“Aboslutely 100% NOT right! I met Graham Badman and told him this. I was there when groups of home educated young people over and over told him this. My parents did what they had to do to help me overcome the damage I suffered in school. I would literally have been terrified of someone asking to speak to me on my own. The report says that the children’s views should be respected-that includes mine and my choice is NOT to see anyone from the LA especially not in my home, which for me when I first left school, was the only place I felt safe in. To impose this on home educated children would take away that feeling of safety that the parents have encouraged. Why did Mr Badman not listen to the views of the children and young people he spoke to?”

The Convention on the Rights of the Child says “No child shall be subjected to arbitrary or unlawful interference with his or her privacy, family, home or correspondence”.

The proposed legislation can’t be reconciled with this; in most families, there’s nothing wrong and hence no evidence that anything’s wrong, so that any imposed visit or interview would certainly be “arbitrary“.

(This may be partly why Mr Badman appears so keen to demonstrate at least an increased statistical likelihood for children in EHE to be at risk; but in fact his data so far don’t show that.)

Can it be that Mr Badman and the people who agree with him are not in fact all that deeply committed to children’s rights, but just find it convenient to wave the idea around, in order to lend a veneer of justification to their pre-existing plans?

2 Do you agree that a register should be kept?

[x] Disagree.

This would alter the relationship between family and State in a highly undesirable way. However, my main objection is pragmatic.

As the system is malfunctioning so badly at present, I believe the ability to choose not to engage with the LA is currently essential for the wellbeing of children. I would only support registration if it were accompanied by a guarantee that families could decline further educational interference from the LA. Clearly this is not what’s envisaged; on the contrary, registration in Mr Badman’s scheme is only the first step in the LA taking control of the child’s education.

When I say that the system is malfunctioning, what I mean is that LA staff frequently act both insensitively and ultra vires (“beyond the powers granted by law”). It’s disgracefully common – to the point of “business as usual” – for Local Authority staff to misrepresent the law to home educators. Sometimes they’re “trying it on” because they think they ought to have powers which in fact they don’t. Sometimes they appear not to know the law themselves. In my experience, other home educators are likely to provide more accurate legal information about EHE than most Local Authorities.

So, rather than trying to incorporate all families into a malfunctioning system, I believe the sensible next step is to ensure that all Local Authority staff know the law and stick to it. The likely result of the current proposals would be simply to multiply the amount of damage and mistrust.

3 Do you agree with the information to be provided for registration?

[x] Disagree.

There is some ambiguity at present about exactly what information would be demanded under the proposed scheme. However, any demand for plans and goals would be a recipe for misjudgements and mistaken interference. It’s stupid to make us accountable to someone from the Local Authority who knows less about what we’re doing than we do. (It’s also ethically indefensible, but again, I’m concentrating on the pragmatic objections.)

Most people in Local Authority EHE department posts are ex-teachers, ex-head teachers, ex-Ofsted inspectors, or (odd as this might sound) people with no education-related experience at all. It’s rare for a Local Authority to employ anyone in the EHE department who comes from the community they’re going to be working with.

(In my own LA, we have one full-time EHE person who had never worked in education before this job; and until recently, before the LA got rid of them all to save money, we had six part-time “advisors” all retired from mainstream teaching, mainly ex head teachers or ex deputy heads. From my asking around, anecdotal evidence from across the country has so far revealed three instances of LA EHE staff who are or were home educating parents – one currently in post, and two more examples from the past which may not be current. That’s out of 150 LAs, many of whom employ several people to visit families.)

Not all learning has the transmissive, linear characteristics expected in school. Teacher training, and experience of school teaching, may even instil paradigms of education which are actively incompatible with more child-led and self-motivated learning.

Peter Traves, Director of Children’s Services at Staffordshire County Council, recently said, “Nor do I accept the rather bizarre view that there is some kind of home education expertise that must be tested by the parent before access is granted to officers with years of proven experience in education.”

Far from being a “bizarre” view, it’s borne out by the experience of many parents, especially those following child-led learning methods: not everyone from a traditional teaching background understands what they’re seeing. Not all ex-teachers have developed the ability to suspend their school-based assumptions about what education looks like.

If people fail to recognise that a skill set exists which they don’t have, they are unlikely to acquire it.

So it’s worrying to hear of someone in this position of power declaring overtly that there’s nothing to learn; but it’s consistent with the fact that few of the people currently paid to “inspect” or “advise” home educating families have had any training to adapt their skills to the new environment.

(If someone’s worked all their life at a nuclear power station, does it qualify them to inspect and advise at a wind farm? They’re both in the energy industry, right? – Can’t take credit for this metaphor b.t.w.)

Luckily, the UK’s home-ed community is rich with wisdom and experience. I can get help and advice from people who do know from long experience about the kind of learning we do, and have a thoughtful understanding of how it differs from school. Some of the parents have been around for long enough that their formerly-EHE children are now at University or in employment.

They say “it takes a village to raise a child”, and I agree that parents aren’t the only people who have an ethical interest in their child’s upbringing. But the “village” – the child’s wider community – doesn’t have to mean the State.

4 Do you agree that home educating parents should be required to keep the register up to date?

[x] Disagree.

No. At present, being able to remain separate from the Local Authority is protecting many children from unhelpful interventions by Local Authority staff. See my answer to question 9.

5 Do you agree that it should be a criminal offence to fail to register or to provide inadequate or false information?

[x] Disagree.

No. At present, being able to remain separate from the Local Authority is protecting many children from unhelpful interventions by Local Authority staff. See my answer to question 9.

Also, making registration compulsory doesn’t make it fail-safe. Anyone who had evil intentions towards their child(ren) would be among those most likely simply to break the law.

Also, the word “inadequate” is much too vague to make good law. Some LAs would no doubt find it useful as a threat to extort more and more detail of the families’ intentions, and lawyers might like the money for the case which eventually decided what it meant, but that kind of unclarity is not helpful to parents or children.

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?

[x] Disagree.

Not on roll as a pupil, no. If there are concerns about a few parents acting in haste and perhaps changing their mind later, it would be sensible to keep the child’s school place open for a while. However, the parent’s right to withdraw the child from the school’s control must remain as it is, to protect children who really need to get out of a bad situation.

The Badman Report states “This period would also allow for the resolution of such difficulties that may have prompted the decision to remove the child from school”. Oh really? In twenty days?

Perhaps Mr Badman has never met any parents who, when they took the step of turning to home-based education, had already been in negotiations with the child’s school for months if not years, attempting to get resources for their child’s special needs, or to get bullying stopped. Sadly, that kind of story is not rare.

Or perhaps Mr Badman imagines that the school would suddenly start trying harder when they think the child would otherwise leave? I suspect in fact that may be true – but if so, it’s a terrible indictment of the schools, and a much bigger problem than can be solved by constraining new home educators.

And even when the school teachers were already trying as best they could to cater for a child, sometimes the skills or money or resources are simply not available.

6 b) Do you agree that the school should provide the local authority with achievement and future attainment data? 

[x] Disagree.

No. The temptation would always be there for the school to overestimate the child’s achievements while at school, to make the school look less bad. This would be especially likely where the child has learnt virtually nothing in months or years at school, which is certainly a circumstance in which the parent might remove the child.

If the LA were to put such misleading data to any use, it would give the child an impossible level to live up to and thereby put at risk the success of the home-based education.

In any case, children in home-based education have the freedom to follow their own passions and curiosity. They won’t necessarily be continuing in a linear way on separate subjects, as imposed by the National Curriculum and measured by the school.

7 Do you agree that DCSF should take powers to issue statutory guidance in relation to the registration and monitoring of home education?

[x] Disagree.

No. Bad understanding leads to bad law. DCSF has not yet demonstrated that it understands home-based education: rather the contrary; the Department is not “safe hands” for the children who need that environment.

In any case, statutory guidance shouldn’t be used to make major changes in law; it’s better suited to minor regulations and administrative methods. Although home-based education has been represented as some kind of trivial anomaly which just needs mopping up, the rights and powers which are under discussion here are fundamental ones.

8 Do you agree that children about whom there are substantial safeguarding concerns should not be home educated?

[x] Disagree.

Not necessarily.

There could be safeguarding concerns which were unrelated to the child’s home or education; for instance, a non-resident parent with a history of violence, with whom the child has occasional contact.

If the parent is struggling for some reason, but home-based education suits the child, then general support (such as help with arranging activities, etc) would be more appropriate. School should not be used as “cheap respite care”.

On the other hand, if the child were so unsafe at home as to be the subject of a Child Protection Plan, then (if I’ve understood correctly) Social Services can already apply for an Education Supervision Order, giving them control over the child’s place of education. The existing system allows each case to be reviewed carefully on its own merits.

In answering this question, one must also ask who decides what counts as “substantial”. Given that many people hold unfounded prejudices about race, class, disability, educational background etc, as well as unfounded prejudices about home-based education itself, there would be a risk that any such legislation could be misused to deny access to home-based education based on prejudice.

9 Do you agree that the local authority should visit the premises where home education is taking place provided 2 weeks notice is given?

[x] Disagree.

No. If the LA has reason to believe that the child is not safe, Social Services ought to be in charge of the case. They already have the powers to deal with that difficult situation. For educational matters, it would be hugely disproportionate to invade the child’s home. This is especially important where the child has had distressing or frightening experiences at school, or where a child with special needs has difficulty coping with visitors.

I heard the following story, and got permission to cite it here, from the mother of the child:

A five year old girl was removed from school after becoming withdrawn and unhappy. Shortly afterwards, the LA’s EHE department sent someone to inspect the family. The mother warned the visitor that they were “still in the assessment phase” and that “any attempt at anything schoolish or confrontational would set her back many weeks”. The visitor ignored this boundary and insisted that the child must read to her. Afterwards, the parent reports: “My daughter had nightmares for two weeks afterwards, and was terrified of knocks at the door for much longer, thinking they were more teachers coming for her.”

The same survey of children which I quoted in my answer to question 1 also contains comments such as this:

“I dont think its right that they invade my home. It makes me feel unsafe and threatened.”

“I am very scared about it….I don’t want to talk to them even with my Mum there, it’s scary. it makes me sad. I am 6. We talked to them before, my mum sent letters, they didn’t have to come before. I liked it better that way. My cousins at school don’t have them come to their house. So it’s not right, and I don’t want it.”

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?

[x] Disagree.

No. If there are serious child protection concerns, this is already possible, and hedged around with careful safeguards. The right to interview children alone without any such justification would be an enormous arrogation of powers to the State. It would be a frightening prospect for many children (see Q1 and Q10 above), and it would set a legal precedent which ought to be terrifying to everyone. It would also increase the number of jobs which regularly ensured time alone with young or vulnerable children.

The Badman report states, “In so doing, officers will be able to satisfy themselves that the child is safe and well.” This extremely naive conclusion would not be shared by anyone familiar with the principles of child protection. It is not the case that as soon as a child is alone with someone from outside the family, they will take the opportunity to disclose any abuse perpetrated within the family.

(It may also be worth noting that, contrary to stereotype, almost all children in home-based education already see numerous adults from outside the family, and far more often than once or twice a year.)

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.

[x] Disagree.

No. Most parents can be trusted to get on with it. The LA can already make informal enquiries when a family comes to their notice. There is no need to keep checking up on every family “just to make sure” when there is no evidence that anything’s going wrong.

Moreover, risk management is complex; more checking is not necessarily better. There comes a point where the number of “false positives” detracts from helping the children who actually need help.

Many children are in home-based education precisely because of a history of bullying at school or because they have neurologically-based social difficulties. If a child appears fearful or odd, it takes time and skill to establish the reason. On the other hand, the statistical risk of abuse from their parents is very small. This is exactly the kind of situation where false positives become a mountain dwarfing the true positives, putting at risk the children who really do need help. Social workers are at full stretch already, without referring on lots of additional children who were fine in their own unusual way.

“But if it helps even one child…?” people say. Yeah well, what if it doesn’t help even one child? What if all it does is overload the social workers to the point where they miss that one child?

I understand the pressures on people paid to safeguard children, especially in the current climate of “trial by tabloid”. I know that “We had no reason to suspect anything was wrong” doesn’t always play well in the media. Nevertheless, it’s sometimes the only wise place to stand. You don’t find a needle in a haystack by increasing the size of the haystack. If protecting children conflicts with protecting career paths, it’s the best interests of the children which must take precedence.

Here, have an index…
A bit of background
Me and writing about this
The issue of “registration”
A note on tone
My consultation response

6 thoughts on “Learning, law and children’s rights”

  1. Peter Traves is a twonk i have uncovered loads of dirt on this local authority and im in touch with other parents they have led a witch hunt on me and taken my child because i have caused them trouble and have ofsted involved do not trust them they will snatch kids for no good reason

  2. I uncovered their own documents stating their workers had mental health and alcohol issues i wrote to PETER TRAVES sarcastically recommending he send his staff for psychiatric assessments and refers them to adsis the TWONK emailed me back stating he does refer staff to adsis.Turns out in todays news they have 5 serious case reviews,also not to mention they had to set up a trust fund for a girl of 10 grand cos they ignored her being abused.My own case they did not bother to investigate domestic violence and placed my child with abusive ex whos on license from prison for a section 20 offence.Save your children from these monsters.

  3. ive4 just read this… its very much like my thoughts and opinions going through similar right now with my ed authority. i would like to show this to others to get word out if thats ok with you.

  4. @ jane – sorry to hear of your situation. I can only imagine how painful it must be to be parted from your child in that way.

    Peter Traves came to my notice when he spoke at the Select Committee the other day. He seemed to be saying that parents ought not to be allowed to choose home-based education for religious reasons, and that prompted some discussion on a list I’m on.

    I’m not really at one with calling him a twonk though. I know it’s only a medium-rude label, I just don’t like name-calling at all.

    @ Jax – thanks!

    @ nicky: yes by all means – feel free to link to this page or to print it out to show people offline. I’d just say don’t copy large amounts of it to another web page – that means search engines get confused about which one to point to.

    I don’t know if you already know about the Education Everywhere helpline. If you need support in dealing with your Local Authority, it might be worth giving them a call.

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