Memorandum submitted by Cumbrian Home Educators


This submission includes:




1- Starting point: Mr Badman has based his work on a misunderstanding of law

2- What preceded this latest review and current consultation


The review seen in the light of the Terms of Reference

3- General comments about the Terms of Reference

4- Barriers to safeguarding

5- Extent of abuse

6- Local Authority support

7- Changes to home education monitoring


Our comments to (a selection of) the recommendations

8- General comments about Recommendations

9- Recommendation 1: Annual registration and statement of intent

10- Recommendation 7: Right of access to the home and to interview children alone

11- Recommendations 23 and 24: Local authorities discretion to refuse and revoke registration


Lack of impact assessment

12- Impact on current legislation and civil liberties

13- Financial consequences for LAs

14- Impact on already overstressed Services

15- Impact on safeguarding issues






1- Starting point: Mr Badman has based his work on a misunderstanding of the law


The review report and the DCSF consultation both talk about balancing the rights of parents and the rights of children, as if these two things are contrary to each other.

As well as being completely illogical, this is a fundamental misunderstanding of the way education law in England works.


In fact, parents do not, in English law, have a 'right to home educate' except that which is conferred by Section 7 of the 1996 Education Act[1]. The rights of parents, in this context, are entirely bound up with the parental duty to ensure that children receive an education suitable to their age, aptitude and ability and any special educational needs they may have.


Parents do not have a right to choose to deny their children the education they need, nor do they have a right to choose to put their children in danger. There is no conflict between the parent's duty to provide an education and the child's right to receive an education; these are both enshrined in the very same piece of statute law.


Local authorities ask for additional powers to visit home educating families and see home educated children, but they do not understand or use the powers they already have.


If local authorities take powers to control the type of education children should receive, they would make themselves legally liable for the outcomes. Children who believe their education (whether at school or at home) was not adequate would have a legal case against their local authority.


2- What preceded this latest review and current consultation


In the past 4 years there have been 16 consultations, all directly or indirectly affecting home education.

In November 2007, the government issued guidelines for local authorities, on elective home education[2]. In January 2009 the government issued statutory guidance on local authorities' duty to identify children not receiving a suitable education[3].

In the same month, January 2009, Graham Badman was asked by DCSF to carry out an independent review of Elective Home Education (EHE). The unfounded allegation of a possible link between EHE and child abuse caused anger and upset in the EHE community.


Approximately 1400 home educating parents and 200 home educated children responded to the review questionnaire. Of a total of more than 2000 respondents a large majority (at least 80%) was in favour of the status quo in terms of regulation of home education. Only 10% of respondents favoured the introduction of a scheme of registration, monitoring and inspection.


On 11th June 2009[4] Graham Badman's report was published, including 28 recommendations. On that same day Ed Balls, on behalf of the DCSF, accepted some of the recommendations[5], and announced another public consultation on their implementation[6].


Although the consultation period is not yet finished (it closes on October 19th), the government has already announced that it plans to include 'improving monitoring arrangements for children educated at home' in an Improving Schools and Safeguarding Children Bill, which will be announced in the Queen's Speech in November[7].


Following protests from many home educating parents, the Children, Families and Schools Parliamentary Select Committee is now conducting a short inquiry into the Badman Review and the associated consultation[8].


The review seen in the light of the Terms of Reference


3- General comments about the Terms of Reference


The Terms of Reference fail to distinguish between welfare and education issues, which has caused concerns over welfare being used to try and interfere with matters only related to education.


Mr Badman was asked to investigate:


4- Barriers to safeguarding


the barriers to local authorities and other public agencies in carrying out their responsibilities for safeguarding home educated children and advise on improvements to ensure that the five Every Child Matters outcomes are being met for home educated children.


Our comment: Existing powers are sufficient


What Mr Badman failed to understand is that Local Authorities already have sufficient powers to deal with concerns they perceive to have and are unable to solve, because they fail to implement said powers correctly, a shortcoming earlier identified by Lord Laming in his VC report.

Our experience is that Cumbria Local Authority have managed to understand and implement their powers in a way acceptable to both Local Authority and home educators, without having to resort to ultra vires practices.


Making a minority choice (EHE) in itself is not a reason for concern or suspicious treatment.


Also, there is no evidence that EHE produces significantly worse educational or social outcomes than school education - quite the opposite, in fact. Paula Rothermel's 2002 study of 419 home educating families in the UK found that the home educated children achieved significantly higher scores than the national average on a range of assessments in the areas of literacy and numeracy, and were socially adept.[9]


5- Extent of abuse claims


the extent to which claims of home education could be used as a 'cover' for child abuse such as neglect, forced marriage, sexual exploitation or domestic servitude and advise on measures to prevent this.


Our comment: There is no problem to be solved


Having been specifically asked to look for evidence that home education could be used as a cover for abuse, forced marriage or domestic servitude, Graham Badman found no evidence that this was actually happening. In paragraph 8.14 of the report, he states:


"I can find no evidence that elective home education is a particular factor in the removal of children to forced marriage, servitude or trafficking or for inappropriate abusive activities."


An analysis of the responses of 129 local authorities to Freedom of Information requests has revealed that the rate of abuse among children known to be electively home educated is in fact less than a third of that in the population as a whole.[10]


6- Local Authority support


whether local authorities are providing the right type, level and balance of support to home educating families to ensure they are undertaking their duties to provide a suitable full time education to their children.


Our comment: Support should be available if and when required, not forced upon home educators


In Cumbria the Local Authority have a small team that deal with home educators (home education consultants). This team have an understanding of forms of education outside mainstream provision, and they have knowledge of how autonomous or child led education works. As the team is small, it means that the same consultant deals with the same family each time enquiries into educational provision are made.


The Cumbrian LA consultants understand that if a home educating family turns down face to face meeting, this in itself is not a cause for concern. Where there have been causes for concern the Local Authority has used its existing powers to deal with the problem.



7- Changes to home education monitoring


whether any changes to the current regime for monitoring the standard of home education are needed to support the work of parents, local authorities and other partners in ensuring all children achieve the Every Child Matters outcomes.


Our comment: No changes are needed, only correct interpretation of ECM is required


The wording of the Terms of Reference suggests that there is a legal framework in place for monitoring for ECM outcomes. However, there is no duty on Local Authorities to ensure ECM outcomes for any child. ECM is supposed to be a supportive guidance, that LA staff should frame their practice around.


The duty to provide education suitable to age, ability and aptitude and any special education needs a child might have, rests with the parents.


Local authorities already have power to require home educating families to supply information that will satisfy the authority that an education is being provided, if they have reason to believe it is not.


Because they may not know if there is cause for concern if they have no information at all, there is also provision (due to Lord Donaldson's judgment in a 1980 court case) for LA's to make informal enquiries of home educators. Home educating families are permitted to respond to these enquiries in a variety of ways. This allows families to engage with LA's in whichever way suits them and their children best.


If families refuse to supply information, even when issued with a legal notice to do so, or if the information supplied does not satisfy the LA that a suitable education is being provided, then a school attendance order (SAO) can be issued. Parents can be prosecuted if they don't comply with an SAO.


If there is reason to believe any child is at risk of harm, social services have extensive powers to investigate. This is the same for home educated children as for school children.


And as we explained under (7), our Local Authority are doing an excellent job without having to resort to ultra vires practices. Consequently there is a general atmosphere of tolerance and mutual respect between home educators and Local Authority in Cumbria.


Our comments to (a selection of) the recommendations


8- General comments about Recommendations


In his letter dated 11th of June 2009 the Secretary of State "accepts all the recommendations in [Mr Badman's] report that call for urgent action to improve safeguards for home educated children" and he says that DCSF "will introduce these as soon as possible, subject to identifying funding and workable delivery arrangements." In the abovementioned letter he does not specify which ones he refers to, but looking at the "Home Education -registering and monitoring proposals" consultation document, we assume they are recommendations 1, 7, 23 and 24.

We wish to emphasize that we take issue with most if not all 28 recommendations, but to stay within the requirements of the submission, we will have to limit our comments.


9 - Recommendation 1: Annual registration and statement of intent


What is being proposed here is effectively a licensing scheme for a minority of parents. For these recommendations to become law without being discriminatory would require major changes to primary legislation, which would see all parents/carers requiring a license to provide the education of their choice. It would also effectively give the State the responsibility for education (currently held by parents), and it would present the interesting legal question "if that would open the State up to litigation should a child be 'failed' by the chosen education".


For autonomous educators and those who practise child led learning, being asked to make plans for the following twelve months and state the outcomes they expect at the end of that time, is nonsensical, as these approaches operate by constantly adapting to the child's individual educational needs and interests. Also, within the proposed scheme, there is no space for de-schooling, whereby a child has a period of 'recovery' from the schooling system before finding their own style of learning. This is vital to children who have been, in one way or another, traumatized by their school experience, and finding a child's own style of learning underpins the autonomous approach.


Summerhill School is not expected to supply planned outcomes for each pupil. If they can operate their school following a philosophy which allows children autonomy, home educating parents should have the same freedom.


In a healthy democracy, there should be room for disagreement and debate over educational approaches. Effectively outlawing one (highly effective) form of education is an act worthy of a dictatorship.


Keeping a child on a school role for twenty days would effectively mean loss of deregistration on demand. When there are suspicions of foul play - such as suggestions the 'problematic families' deregister their chil(dren) - then this is a matter for the Local Authorities and schools to deal with.


10 - Recommendation 7: Right of access to the home and to interview children alone


Recommendation 7 amounts to a blanket screening programme for a normal risk population. Local authority officers, without specific training in child protection or safeguarding would be given greater powers than that entrusted to child protection social workers. The report states that they would:


"have the right of access to the home;


have the right to speak with each child alone if deemed appropriate or, if a child is particularly vulnerable or has particular communication needs, in the company of a trusted person who is not the home educator or the parent/carer.In so doing, officers will be able to satisfy themselves that the child is safe and well."


Children being interviewed by the police under suspicion of having committed a crime are entitled to have an appropriate adult present, but home educated children (unless they are particularly vulnerable) will not be allowed this right.


Mass screening for child abuse is not current policy in any democratic country. A 1993 study by the Canadian Task Force on Preventive Health Care summed up why:


"The main problem with the available approaches is the high false positive rate. For example, assuming a high prevalence rate for child maltreatment of 20%, screening 1,000 children with an instrument whose sensitivity is 80% and specificity 90% would result in 33% of the positive test results being false positive. With a lower prevalence rate of abuse, the number of false-positive results would be even higher. A sizeable number of individuals identified by such techniques as being "at risk for child maltreatment" would never go on to commit abuse. Such labelling may put people under increased stress and interfere with their ability to function as parents. Further, the validity of many of the screening approaches has not been adequately evaluated." [11]


In many home educating settings the children's work is regarded as the children's private property. A requirement to exhibit work at demand would be seen as a violation of a child's privacy.


Recommendation 7 also proposed to allow LA officers to assess progress. In order to do this a standard to measure against would be needed. The only current standard is the National Curriculum and home educators are not now required to follow any curriculum.


Again, parents have a duty to provide education suitable to age, ability and aptitude and any special educational needs a child might have and this is not necessarily provided by the National Curriculum.


11 - Recommendations 23 and 24: Local Authority's discretion to refuse or revoke registration


Recommendation 23 is an invitation for LA staff to exercise their prejudices and will result in information about prospective home educators being shared between professionals for no proven benefit. Dr Eileen Munro of LSE commented:


"Recommendation 23 would lead to considerable intrusion into the privacy of family members and is poorly thought through. When recommending new data sharing, one needs to consider the signal to noise ratio - how much of this data will add value to the practice of the receiver in safeguarding children and how much will be irrelevant but causing problems through taking up time that could be better spent. The author does not appear to have made any estimation of such statistics but my suspicion is that it would lead to considerably more noise than signal and, in fact, create risk of harm by obscuring the few 'signals' (of true concern) among a storm of noise (irrelevant data)." (email correspondence with a home educator in Brighton, August 2009)


The last addition gives LA officers the powers to apply the licensing process according to their own personal and possibly prejudiced or uninformed judgment. As there seems to be no right of appeal, this leaves home educating families potentially open to State abuse.


Recommendation 24 makes no sense. If there are safeguarding concerns about a child in its home environment, the educational setting is irrelevant. In such instances the LA should use their substantial existing powers to intervene and safeguard the child.







Lack of impact assessment


12- Impact on current legislation and civil liberties


Apart from the changes needed in primary educational legislation, there would be the loss of presumption of innocence until proven guilty, which is a basic premise of English law.


13- Financial consequences for LAs


The Home Education Advisory Service[12] has calculated that the costs nationwide could be as much as 500 million. However, Baroness Morgan has said there is no need even to assess the financial impact of the proposals[13]. It is clear that there will be no additional funding forthcoming from the government.


14- Impact on already overstressed Services


This would have consequences for children already in need of support.


15 - Impact on safeguarding issues


Seeing children alone goes against Child Safeguarding Guidelines and leaves LA personnel vulnerable to accusations of improper behaviour between adult and child.


September 2009