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Memorandum submitted by Sue Gerrard
Executive Summary
Primary concerns regarding the recommendations the government intends to adopt:
· The evidence for home-educated children being at risk of harm is insubstantial · Legal rights are seen as granted by the State rather than recognized by it · The rights of parents and children are misconstrued and not clearly defined · Related statutory guidance contains internal inconsistencies and does not make clear the boundaries of responsibility and accountability of local authorities · The recommendations put local authorities in a position of conflict of interest · The recommendations do not uphold the principles of assumption of innocence and right to privacy · Possible unintended and unwanted outcomes from the recommendations are not addressed · I recommend that concerns about home-educated children be addressed through support rather than policing
Relevant experience
I currently home-educate my two children, one with SEN. I am an independent researcher affiliated to a university research group working on knowledge modelling. I have a PCGE, an MSc in Occupational Psychology and have taught in a parent-controlled school. The views expressed here are personal ones.
1. Evidence for abuse
1.1 The review was launched amidst concerns about the quality of education of home-educated children and about claims of abuse. The NSPCC response to the proposed Revised statutory guidance for local authorities in England to identify children not receiving a suitable education cited the Eunice Spry case and 'a number' of cases raised by the London Children's Safeguarding Lead network. Eunice Spry was known to and investigated by social services. No verification of the other cases appears to have been provided. The review report found no evidence of forced marriage, servitude or trafficking or for inappropriate abusive activities (8.14), but states that;
...on the basis of local authority evidence and case studies presented, even acknowledging the variation between authorities, the number of children known to children's social care in some local authorities is disproportionately high relative to the size of their home educating population... (8.12). The meaning of this paragraph is unclear and no data are provided.
1.2 In short, although it is possible that home-educating parents could be abusing their children, no reliable evidence that this is actually happening was given in the report. Nor have any retrospective abuse cases been cited, suggesting that the occurrence of any abuse is infrequent. Legislating against hypothetical risk is an inefficient use of public funds, especially if it leads to the diversion of resources from an area of known risk. A more prudent approach would have been to make recommendations once reliable data was available. It is a matter of some concern that a public announcement linking home education with abuse should have been made in the absence of valid evidence.
2. Constitutional and legislative framework
2.1 The report opens with a quotation from Isaiah Berlin, a proponent of negative liberty (the idea that the individual is free to do as s/he wishes unless s/he harms others). The review report appears to work from a different perspective - that individuals are granted positive rights by the UNCRC, the ECHR or the State through legislation (Annex E 1.1, 1.2). This suggests a misunderstanding of the principles on which democratic states (or at least the UK) are founded; rights can be recognized, agreed or safeguarded by the State or by international bodies, but those bodies have no inherent authority to 'grant' rights.
2.2 The report does not make a clear distinction between safeguarding and education. Such a distinction might have helped clarify the legislative issues involved.
2.3 Education The review is predicated on the assumption that a correct balance should be achieved 'between the rights of parents and the rights of the child to an appropriate education and to be safe from harm' (3.1). In English law, parents do not have a right to home-educate a child, nor has a child a right to an education, except as outcomes of the parent's duty to cause the child to have a suitable education (s.7 Education Act 1996). Because the parent's duty is defined by the child's educational needs, the consequent 'rights' of both parties are by definition in balance. Other rights, such as those of the individual in relation to government, are not addressed by the review.
2.3.1 The report is correct in pointing out that Article 2 of Protocol 1 of the ECHR does not imply a fundamental right to home-educate (3.9). Article 2 recognizes only one right; that of parents to ensure that any function of education and teaching assumed by the State is in conformity with their own religious and philosophical convictions. Article 2 does not recognize a right to an education, except in terms of a prohibition against depriving anyone of an education.
2.3.2 Article 28 of the UNCRC by contrast, recognizes the right of a child to an education and Article 29 sets out the general objectives to which that education should be directed. Article 29 does not preclude home education but allows that its minimum content can be specified by the State.
2.3.3 The report contrasts EHE regulation in England with other countries with 'highly developed education systems' (11.1). The implication appears to be that England should be in line with other developed nations in its EHE policy. There is no reason why this should be so, given that education is an exclusive competence under the Lisbon Treaty. The fact that home education was banned in Germany in the 1930s could be considered an argument in favour of, rather than against, a more liberal approach to home-education.
2.3.4 The report refers to the requirement of Article 12 of the UNCRC to take into account the child's views, and states that 'under the current legislation and guidance, local authorities have no right of access to the child to determine or ascertain such views' 3.3). It is clearly important that all children have access to an independent party who can ensure that their voice is heard, but there is no reason why that party should be the local authority. Indeed, in cases where the child wishes to make their views known with respect to education, the need for impartiality suggests that the party involved should not be the local authority.
2.4 Safeguarding and welfare The report emphasises the duty of local authorities to safeguard and promote the welfare of children (8.13, Annex E 1.4, 3.5), citing the Children Act 1989 and the Education Act 2002. The report also refers to the Children Act 2004 with reference to the five Every Child Matters outcomes (Recommendation 2, 8.4) and to the Revised statutory guidance for local authorities in England to identify children not receiving a suitable education (Annex E 3.2, 3.3).
2.4.1 My understanding is that the five outcomes were originally intended to provide a framework for the assessment of services delivered by local authorities and other bodies to children and their families. Since home-educating parents are not providing a service to the community within the meaning of the Children Act 2004, the five outcomes do not apply, although most parents would probably seek these outcomes for their children. It is not clear on what grounds, or how, the five outcomes should be used in regulating home education.
2.4.2 The Children Act 2004 gave local authorities a proactive duty to safeguard and promote the welfare of all children. Since then blurring of the boundaries of responsibility for children's welfare appears to have taken place, at least in the thinking of some local authorities and children's organizations. Currently, parents have legal responsibility for their children, for self-evident reasons. Parents do not always fulfill their duty to the child, but it does not follow that local authority officers, unless they know the child very well, or the child's circumstances are extreme, are in a position to determine the child's best interests. Some of the report's recommendations in effect give parents and local authorities joint responsibility for the child's welfare, a position likely to lead to considerable legal confusion.
2.5 The Revised statutory guidance has contained internal inconsistencies since its proposal in July 2008. I have twice asked the Minister for clarification via my MP (Owen Paterson, North Shropshire). She has replied but has not addressed the points I had raised, which were:
2.5.1 Paragraph 87; s. 436A of the Education Act 1996 requires the identities of children not in school and not receiving a suitable education to be established - the Guidance requires identification of any such children receiving a suitable education.
2.5.2 Paragraph 92; The Elective Home Education Guidelines cite s. 437 (1) of the Education Act 1996, that local authorities should act if it appears a child is not receiving a suitable education - the Guidance says they should make inquiries about whether home educated children are receiving a suitable education.
2.5.3 Paragraph 94; s. 47 of the Children Act 1989 says local authorities should investigate if they have reasonable cause to suspect that a child is at risk of significant harm - the Guidance says the criterion is cause for concern about the child's safety and welfare.
2.5.4 The Guidance shifts the local authority's role from one of acting when there is reasonable cause to suspect that the law has been broken, to one of making sure that parents are adhering to the law - a significant change in the constitutional role of the local authority. I am concerned that statutory guidance can be used, whether deliberately or inadvertently, to change the import of primary legislation, and that it is possible for statutory guidance to come into force without internal inconsistencies being picked up by a scrutinising body.
3. Other rights: constitutional framework
3.1 Local authorities The report does not address the constitutional role of local authorities and related bodies. My understanding is that local authorities provide services for the local community that the community pays for. The local authority is answerable to the community for the quality of those services, one of which is law enforcement. A local authority can act if it suspects a member of the local community has broken the law. However, the individual in question is not answerable to the local authority, but to the community via the judiciary.
3.1.1 Several of the report's recommendations introduce a constitutional and legal anomaly - that of a home-educating parent being made accountable to a body which is in turn accountable to the parent. One can imagine a scenario in which a parent withdraws a child from school due to a demonstrable failure on the part of the local authority to provide a suitable education or a safe environment for the child (a well-documented problem in the case of children with SEN), and the local authority then refuses permission for the parent to home educate on the grounds that indicators of abuse are present, when those indicators had in fact arisen because the child had received inadequate educational support in school and had been subjected to physical bullying by other children. The legal ramifications of such a case are complex.
3.1.2 The recommendations also put local authorities in a position of conflict of interest. As education providers themselves, local authorities cannot be reasonably expected to exercise impartial judgement in the case of a home-educated child, either in respect of the content of the child's education, nor in respect of home-education per se.
3.2 Presumption of innocence and the right to privacy In focusing on a balance 'between the rights of parents and the rights of the child to an appropriate education and to be safe from harm' (3.1), the report overlooks the implications of its recommendations in cases families where children are safe and receiving a suitable education.
3.2.1 An underpinning principle of UK law, recognized by current relevant legislation, is that no one is entitled to enter private premises without permission of the owner except in certain circumstances, such as a serious emergency or, when it is suspected that a crime has been committed or is about to be committed, with the permission of a magistrate. Another principle is that individuals are assumed to be innocent of criminal activity unless shown to be guilty beyond reasonable doubt. Historical evidence suggests that abandoning these principles almost invariably results in a serious breakdown of trust within society and with government. Some of the report's recommendations put parents in the position of being assumed to be in breach of the law unless they can demonstrate otherwise, and remove the protection of the law from individuals against abuse of authority, inadvertent or deliberate, by local government officers.
3.3 Since current English law already balances the 'rights' of the parent and child, does not contravene either the ECHR protocols nor the UNCRC articles, and since education is an exclusive competence under the Lisbon Treaty, there appears to be no fundamental problem with the current legal framework relating to home education.
4. Specific recommendations
4.1 Annual renewal of registration Annual updating of the child's place of education would be sensible; renewal of registration implies that the parent will require the local authority's permission to re-register. This recommendation raises the questions about accountability and responsibility referred to in paragraph 3.
4.2 Visits by local authority officers The implication is that the parent's 'right' to home-educate their child will be contingent on a local authority officer having a right to enter the home. This raises constitutional questions.
4.3 The 20-day 'cooling-off' period If a parent has reached the point of withdrawing a child from school it is likely that mechanisms for resolving difficulties have already failed. I am concerned that the 20-day period might be used by local authorities to marshal evidence to suggest that the child is being abused (sometimes the case, but not necessarily at home) and to prevent de-registration. The uncertainty introduced by this period could have a deleterious effect on the child, especially if the decision to home-educate has been taken because of serious problems with school and the child has to stay in school during this time. If the child is not in school but is on the register, under current legislation the parent would be acting illegally.
4.4 The statement of educational approach In principle, this is a sensible recommendation. However, although local authorities and schools might be able to offer help and advice in relation to specific educational content, it is doubtful whether they would be able to do so in relation to the 'planned approach'. The approaches adopted in the one-to-one education of a child at home are very different to those used in a class of thirty constrained by the requirements of the national curriculum and SATs attainment levels. Local authorities would require relevant expertise.
4.5 Child's achievement record School records of achievement to date might be useful to parents, but predictions of expected achievement are meaningless outside the state system. Since the school and local authority are providing a service for the parent, one would expect a copy of the child's school record to be sent to the parent as well.
4.6 Criminal offence to fail to register or to provide inadequate or false information This is not unreasonable in respect of personal data, but could create significant problems if applied to the statement of approach to education, which by definition could change to meet the child's educational needs.
4.7 Right of access to the home In cases where it appears that a child is not receiving a suitable education, current legislative provision is sufficient. There should be no right of access without good reason to suspect wrongdoing.
4.8 The right to speak with each child alone I found this the most worrying of the recommendations. The judicial system acknowledges problems with child testimony and strict protocols surround its elicitation in legal cases. Local authority officers would be required to have expertise in educational approaches, SEN, child development and safeguarding issues. The DCSF proposes legislation now for registration and monitoring arrangements but guidance and training 'ultimately'. This order of implementation could have serious consequences. The proposal offers the opportunity for a local authority officer to abuse a child, to make false accusations against the parent, and for the child or the parent to make false accusations against the local authority officer. Interviews with a child alone should take place only in cases where criminal activity is suspected, should be videotaped, and ideally should be undertaken in the presence of an independent expert who can ensure that the child is not led, and that the interview process itself is not unnecessarily damaging to the child.
5. Alternative proposals
The best way to prevent possible problems with home education would, I feel, be through support, rather than policing.
5.1 Home visits by health visitors, doctors and district nurses, once commonplace, have been gradually withdrawn, eroding the preventative role of the health service through awareness of community issues. Routine optional home visits by health visitors and district nurses in relation to child health and development would go a long way toward improving safeguarding.
5.2 Educational concerns could be addressed by the provision by local authorities of resource centres, funded through the per capita allowance not used by home-educated children. The centres could be extensions of the library service, giving interested parties access to reference books, samples of educational books and equipment, and information, training and advice.
6. Conclusion
I welcome the recommendations of the report in respect of support and resources and understand that registration of home-educated children and the provision of a statement of educational approach would be sensible. However I am concerned that many of the review's recommendations appear to emerge from an inadequate grasp of constitutional and legislative principles and of the range of pedagogical approaches required for a suitable education to be provided. I propose that educational concerns be addressed through resource centres, accessed voluntarily, and safeguarding concerns through the reinstatement of home visits from health professionals.
16 September 2009
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