Memorandum submitted by Mr R
Barns
Summary
· Freedom should only be restricted by the state where there is good
reason to do so. Otherwise there is a risk of losing all freedoms
incrementally.
· The current EHE guidelines provide a good
balance between the power of the state and the freedom of the individual.
· The current guidelines have only recently
been published. There has not been enough time to properly implement them let
alone to test them and reject them as "unworkable".
· There is no statistically meaningful evidence
that home education carries a safeguarding risk.
· Badman's recent letter to local authorities
requesting data to support his case shows that the data he has used is
statistically inadequate.
· There is no safeguarding reason for
monitoring home educated children if pre-school children, who are more
vulnerable, do not need to be similarly monitored.
· EHE needs to be free of state interference if
it is to act as a check on the power of the state in education. Such a check is
needed as part of maintaining a free society.
· Badman's recommendations mean that the state
and not parents decides what education children should have. Yet he supplies no
proof that such a reduction in individual freedom is necessary.
· Badman's changes to the legal status quo should
be rejected.
I am making this submission to the Inquiry as a private
individual and not as the representative of any organisation.
1. Introduction
1.1 Graham Badman's report to the Secretary of State on
the Review of Elective Home Education in England
is prefaced with a quote from Isaiah Berlin:
The need to choose, to sacrifice
some ultimate values to others, turns out to be a permanent characteristic of
the human predicament.
This is an important observation. Absolute freedom is not possible. However,
the preference should be for freedom as far as it is possible. Badman's report
quotes Article 29 of the United Nations Convention on the Rights of the Child:
"State Parties agree that the education of
the child shall be directed to...
The preparation of the child for responsible
life in a free society...[1]
This, of course, requires the existence
of a free society in which the child can live in a responsible manner. But free
societies do not exist by default. They have to be carefully crafted and maintained.
The question, then, is how to make the difficult choices that Berlin refers to in such a way as to uphold
and strengthen a free society. We need to bear in mind that it is just as
possible to lose all our freedoms incrementally as it is to lose them all at
once. Indeed it is probably easier to lose freedom gradually as the danger is
not so apparent. Therefore if a free society is our aim then our assumption
must always be in favour of choosing freedom unless there is a very good reason
for restricting it. It is my contention that Badman's recommendations restrict
freedom without demonstrating that the restrictions are necessary, and without
considering the harmful effects of those restrictions.
2.
The 2007 EHE Guidelines
2.1 Elective home education (EHE) is
already regulated by the state. Home educators do not have absolute freedom.
They are required by law to give their children a suitable and efficient
education, and they can be held to account when they do not do this. The
requirements on home educators and the related powers of local authorities are
set out in the Government's Elective Home Education Guidelines for Local
Authorities published in 2007. These guidelines were the result of considerable
consultation with both home educators and local authorities. The result is a
document that is well regarded by home educators and is well able to achieve
the aim set out in the Ministerial Foreword signed by Jim Knight and Andrew
Adonis:
Where parents
have chosen to home educate, we want the home educated child to have a positive
experience. We believe this is best achieved where parents and local
authorities recognise each others rights and responsibilities, and work
together. These guidelines aim to clarify the balance between the right of the
parent to educate their child at home and the responsibilities of the local
authority.
2.2 However, in the outset of his report
Badman states that these guidelines are "unworkable":
I have taken
account of the views of local authorities who are strongly of the opinion that
the current guidelines are unworkable in that they are contradictory and confer
responsibility without power. I agree with this view and will recommend
accordingly.[2]
Badman ought to say "those local
authorities who are strongly of the opinion..." as the report says that he only
received responses from 60% of local authorities[3]
and we are not told how many of them shared his opinion of the current
guidelines.
2.3 Badman began his review at the start
of 2009, little more than a year after the guidelines were published and yet he
wants to claim that the guidelines are unworkable. How can there possibly have
been, in that short period, enough time for the guidelines even to be
thoroughly implemented let alone for them to be properly tested and shown to be
unworkable?
2.4 The EHE guidelines do not give local
authorities duties that they do not have the power to perform; they are
responsibilities that are within the bounds of their current powers. For
example, in support of his claim that current legislation does not give the
necessary powers to local authorities Badman refers to the duty of local
authorities to identify children who are not being educated.[4]
As the 2007 EHE guidelines state:
Local
authorities have a statutory duty under section 436A of the Education Act 1996,
inserted by the Education and Inspections Act 2006, to make arrangements to
enable them to establish the identities, so far as it is possible to do so, of
children in their area who are not receiving a suitable education. The duty
applies in relation to children of compulsory school age who are not on a
school roll, and who are not receiving a suitable education otherwise than
being at school (for example, at home, privately, or in alternative provision).
The guidance issued makes it clear that the duty does not apply to children who
are being educated at home.[5]
This duty is clearly stated to be limited
by practicality: "so far as it is possible to do so" within the bounds of the
current legislation. The guidelines do not "confer responsibility without
power" rather they confer a responsibility that is explicitly within the limits
of the local authorities' powers. Of course those powers have their limits, but
the powers of the state need to be limited, that is by definition an essential
element of a free society.
2.5 Furthermore, where it appears that
children are not being educated, local authorities have the power to:
...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.[6]
And they have the power to serve a school
attendance order where necessary.[7]
2.6 Local authorities have significant
powers in these areas even to the extent of being able to force children to
attend a school against their will and against the will of their parents, but
the law has been carefully established so as to also allow freedom to parents.
2.7 In summary Badman rejects the 2007
EHE guidelines without there having been anywhere near enough time for them to
be properly implemented and evaluated. His claim that they confer
responsibility without power is mistaken.
3.
Safeguarding
3.1 In his opening letter to the
Secretary of State for Children, Schools and Families, Badman writes:
In particular,
you asked me to look at whether there are any barriers to local authorities and
other public agencies in effectively carrying out their safeguarding
responsibilities in relation to home educated children. You also asked me to
investigate suggestions that home education could be used as a 'cover' for
child abuse.
3.2 The very emotive claim that home
education could be a cover for child abuse generated bad publicity for home
education but was found to be groundless. Badman says:
...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.[8]
3.3 This leaves the general issue of
safeguarding children. On this topic Badman publishes a number of submissions
from organisations and individuals who want increased monitoring of home
education[9]
but he provides no practical evidence that home education carries safeguarding
risks.
3.4 Badman writes:
...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.[10]
But he provides no details of why the
children were "known to children's social care". The variation between
authorities suggests that these were not serious matters but were rather a
matter of policy in the different authorities. If some authorities
automatically refer some categories of home educators to children's social care
then the figures would not be an indicator of a problem at all. As it is, with
no details as to why the children were referred Badman's vague statement is
meaningless and only serves to give a bad impression of home education without
at all demonstrating that such an impression is deserved.
3.5 Additionally Badman refers to a
"small number of serious case reviews where home education was a feature"[11]
but makes it clear that he is not suggesting "that there is a causal or
determining relationship". A small number of cases is not of any statistical
significance and should not be used in determining Government policy.
3.6 Badman indirectly acknowledges the
inadequacy of the data for the use to which he is attempting to put it when in
a letter to local authorities, dated 17/09/09, he asks them to provide him with
more data that will back up his case:
I would like to
strengthen my statistical evidence in advance of the Select
Committee
hearing so that it is more extensive and statistically robust.[12]
Not only is the letter clearly a request
for selective data to bolster his case but it is an admission that the data he
used were inadequate. If his data were sufficiently reliable to inform
Government policy then they should be sufficiently reliable to withstand the scrutiny
of the Select Committee. As he clearly doubts the strength of his statistical
evidence he should never have used it as a basis for recommending policies to
the Government.
3.7 Finally on this topic it should be
mentioned that there is no good reason to increase monitoring of home educators
in order to meet safeguarding concerns. The Government has no intention to
increase the monitoring of pre-school children and home educated children are
in the same position. Indeed there should be much less concern about the safety
of home educated children as they are older than pre-schoolers and thus more
able to seek help if they need it. The fact that the Government is not
increasing monitoring for pre-school children (who are more vulnerable than
home educated children) shows that there is no reason to increase the
monitoring of home educated children.
3.8 In summary the Badman review found no
evidence that home education was being used as a cover for abusive practices
nor did it provide any evidence that there are safeguarding concerns connected
to home education. Hence there is no good reason to restrict the liberty of
home educators in order to meet safeguarding concerns.
4.
The Effect of Badman's Recommendations
4.1 Of particular concern is the effect on
freedom of education of recommendations 1 and 7.
Recommendation 1 is the requirement that
all home educators register annually with the local authority and provide
details of educational approach and planned outcomes for each child.
Recommendation 7 gives local authority
officers access to the home and the right to interview the child without the
parents being present.
4.2 Badman's recommendations make a
radical change to the legal standing of home education; indeed they change the
relationship between the citizen and the state in the area of education. At
present education is the responsibility of parents. They may delegate it to the
state if they wish but, apart from where the parents fail to provide an
education, the nature of education is decided by the parents. If Badman's
recommendations are implemented this would change so that parents would need
prior permission from the state to educate their own children. Indeed they
would need annually renewed permission from the state to educate their own children.
Furthermore the state obviously has the power to refuse such permission. This
means that the state then has the power to prohibit home education on a case by
case basis even if home education was technically permitted. Also it has the
power to prohibit home education where it has philosophical or ideological
opposition to the content of the education. This power gives the state control
over the content of the child's education. The further power, given in
recommendation 7, to enter the home when there is no suspicion of crime or
abuse is, I believe, quite unprecedented and is a clear invasion of privacy.
And the right to interview a child without the parents being present is again
unprecedented and is obviously open to serious abuse. In brief the changes
recommended by Badman completely shift the balance of power from its present
position where there is actually a "balance" between the citizen and the state
to a position where the state has complete control. It is not an exaggeration
to say that Badman's recommendations make the child a ward of the state as far
as education is concerned.
4.3 Badman repeatedly talks about the
need to balance the rights of parents and the rights of children as if they
were two competing groups with conflicting rights that had to be arbitrated by
the state. What Badman is actually doing is increasing the power of the state
and decreasing the freedom of the individual, whether parent or child. Children
and parents are not separate groups. Children are people who are soon going to
be parents and Badman is attacking their freedoms - both the freedom to be
educated without interference now and the freedom to educate their own children
without interference in the future.
4.4 It is important that the freedom to
home educate without interference is upheld. In the first place no freedom
should be surrendered without good reason because of the risk of incrementally
losing many freedoms, as was mentioned earlier. Secondly the ability to home
educate freely is an important check on the power of the state. In his report
Badman notes that
Legislation from
the 1930s banning elective home education still persists in Germany...[13]
As The Observer stated in an article
published last year:
Home-schooling
has been illegal in Germany
since it was outlawed in 1938. Hitler wanted the Nazi state to have complete
control of young minds.[14]
My purpose in noting this is not to imply
that Badman wants to ban home education - he is very clear that he does not -
but to make the point that home education has a role in the defence of a free
society. For the state to have "complete control of young minds" is very
dangerous. Home education is one of the defences against that danger and
therefore we need to take great care over any restrictions on it. Restrictions
to this freedom, as to any freedom, should only be made when there is powerful
evidence of a need to restrict freedom. Badman supplies no such evidence.
4.5 In summary EHE has an important place
in the provision of education in a free society and the freedom to home educate
without interference should not be taken away unless there is a pressing need
to do so. Badman supplies no evidence that there is such a need.
5. Consultation
5.1 As part of Graham Badman's review of
EHE there was a public consultation. The results of this consultation were
overwhelmingly in favour of the legal status quo with 80% of respondents
answering Yes to question 1: "Do you think the current system for
safeguarding children who are educated at home is adequate?" The other
responses were Not Sure 11% and No 8%.[15]
5.2 Although the consultation responses
were so clearly in favour of the current system Badman has completely ignored
this. This raises the issue of what the point was in having the consultation.
It served only to give an appearance of openness, and to waste the time of the
many respondents. Badman's attitude to the consultation results in people being
given no say in the laws that govern them.
6.
Conclusion
6.1 The current legal status of home
education has not produced negative outcomes for children. On the contrary it
has produced wonderful educational opportunities for those who are home
educated. English law allows freedom in home education - not just the freedom
to home educate but the freedom to do so without interference. It is parents
and not the state who decide on their children's education. The recommendations
of the Badman review end the freedom to home educate without interference and
most significantly they end the role of parents as the ones who decide on their
children's education. Badman's recommendations take this authority from the
parents and give it to the state. This change is a significant restriction on
liberty and one for which there is no supporting evidence. As such it should be
opposed.
September
2009
[1] Graham Badman, Report to the Secretary of State on the Review of
Elective Home Education in England,
paragraph 3.11
[2] Badman, Report, paragraph 1.4
[3] Badman, Report, paragraph 2.2
[4] Badman, Report, paragraph 3.6
[5] Elective Home Education Guidelines for Local Authorities, paragraph
2.6
[6] Section 437(1) of the Education Act 1996, see EHE Guidelines
paragraph 2.7
[7] EHE Guidelines, paragraph 2.10
[8] Badman, Report, paragraph 8.14
[9] Badman, Report, paragraphs 8.6 to 8.10
[10] Badman, Report, paragraph 8.12
[11] Badman, Report, paragraph 8.12
[12]
http://www.dcsf.gov.uk/everychildmatters/publications/documents/laeelectivehomeeducation/
[13] Badman, Report, paragraph 11.1
[14] http://www.guardian.co.uk/education/2008/feb/24/schools.uk
[15] www.dcsf.gov.uk/foischeme/_documents/DfES_FoI_799.doc
