Memorandum submitted by Mr R Barns





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


[13] Badman, Report, paragraph 11.1