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Submission by Randall & Mary Hardy to the
Children, Schools and Families Select Committee into the recent review of
elective home education commissioned by the Department for Children, Schools
and Families.
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Email from Leendert van Oostrum, Executive Officer of
Pestalozzi Trust -Legal defence organization for home-educators in South
Africa.
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Email from Leendert van Oostrum, Executive Officer
of Pestalozzi Trust -Legal defence organization for home-educators in South
Africa. www.pestalozzi.org
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The email below was written in response to an enquiry made to
its author by home educating parents in the UK, following the publication of
Graham Badmanīs report to the DfCSF on Elective Home Education in England.
The investigation was headlined as being commissioned to discover whether
Home Education was being used as a cover for the abuse of children. Though Mr
Badman found no evidence of abuse, he made recommendations with far-reaching
implications for both parents and children. In justifying his
recommendations, Mr Badman cited The United Nations Convention on the Rights
of the Child, and it is his portrayal of this which Leendert van Oostrum
particularly challenges in this response. It is reproduced here with his
permission.
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Randall Hardy - August 2009
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I have read the report by the appropriately named
Mr Badman. And I am very concerned. Also for ourselves. Adoption of the
recommendations as they are will give comfort to officials attempting the
same kind of stuff in South Africa.
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Autonomy. On the one hand, Mr Badman seems to operate from a position
where the autonomy of the child (vis-ā-vis the parents) is a high priority.
On the other hand, he is skeptical of a simple, well established notion such
as autonomous learning. It seems that the autonomy of the child is a "good
thing" where it comes to parents, but not so when it comes to education
authorities.
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Assumption of innocence. The overall impression one gets from the report is
that it proposes, in the case of parents, the reversal of the legal principle
that one is assumed to be innocent until proven guilty. The recommendations
amount to an assumption that parents are guilty of neglecting and/or abusing
their children unless they prove (to the satisfaction of sundry officials)
the opposite.
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This is extremely dangerous, and is precisely what
kept Joy Baker in court for years. Her right to be assumed to be acting in the
best interests of her children until the opposite is proven.
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The proposed statutory amendments will constitute a
gross infringement on the right to be assumed innocent and will turn home
educating parents into assumed criminals at a stroke of Her Homeschooled
Majesty's royal pen when she accedes to the new laws.
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And this applies to home educating parents only. Mr
Badman mentions that it was pointed out to him that the same arguments for
safeguarding that he proffers also apply to parents of preschool children,
but the does not deign to respond to that argument. So, children suddenly
become children in need of safeguarding, and their parent become assumed
criminals, on the day that the children reach statutory school going age, but
not before.
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The
problem is that Parliament CAN adopt laws that reverse the assumption of
innocence. However, it is so seriously in conflict with the basis of English
law that parliaments have been very careful to avoid this except when there
are very grave reasons for it. And then, there must be appropriately strong
counterbalancing measures (automatic judicial review, appeal etc.) to prevent
abuse of these exceptional powers by officials.
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Mr Badman has not provided any evidence that such
grave reasons exist and, if I were an Englishman, I would be trotting off to
my MP tomorrow morning to start educating him/her about the issues involved.
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Mr Badman takes care to consider the legal
framework within which his proposals will operate. He considers international
law, English statutory law and case law.
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Given Mr Badman's stated purpose of "a
correct balance between the rights of parents and the rights of the child" one
would expect him to have taken cognisance of all the applicable law. Now, I
do not know all the applicable English law, but the UN Convention on the
Rights of the Child is fairly well known, and one wonders why he uses only
highly selected bits out of the Convention.
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He cites the child's right to education, and the
child's right to be heard:
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"3.3 The
United Nations Convention on the Rights of the Child (UNCRC) gives children
and young people over forty substantive rights which include the right to
express their views freely, the right to be heard in any legal or
administrative matters that affect them and the right to seek, receive and
impart information and ideas. Article 12 makes clear the responsibility of
signatories to give children a voice:
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"Parties shall assure to the child who is capable
of forming his or her own views the right to express those views freely in
all matters affecting the child, the views of the child being given due
weight in accordance with the age and maturity of the child."
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"Yet under the current legislation and guidance,
local authorities have no right of access to the child to determine or
ascertain such views."
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This, apparently is the major legal provision on
which he relies for his proposal of home visits and interviews with children
in the absence of their parents.
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However, Mr Badman fails to quote the second part
of the same article, which states:
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"2. For this purpose, the child shall in particular be provided
the opportunity to be heard in any judicial and administrative proceedings
affecting the child, either directly,
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or through a
representative or an appropriate body, in a manner consistent with the
procedural rules of national law."
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The Convention, therefore, provides for a range of
options, including one where the child's views are presented by someone representing
the child. Mr Badman, however, silences the Convention on this issue, and
provides in his proposal for only one option - that the child be interviewed
by representatives of the Local Authority.
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In addition, his proposals do not provide for
children who choose to exercise their right by remaining silent. For the
right NOT to express his or her views is an inherent part of the right to do
so.
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Furthermore, the child also has, in terms of the
same Convention (Article 15), the right to free association, which includes
the right to dissociation. The child might prefer NOT to associate with a
given official, or with any officials, by expressing his or her views to
them, while the child might be willing to do so to other persons.
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Mr Badman also seems to find it
convenient to ignore completely several other relevant articles of the
Convention, these include:
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Article 5 States Parties shall respect the
responsibilities, rights and duties of parents or, where applicable, the
members of the extended family or community as provided for by local custom,
legal guardians or other persons legally responsible for the child, to
provide, in a manner consistent with the evolving capacities of the child,
appropriate direction and guidance in the exercise by the child of the rights
recognized in the present Convention.
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In other words, the Convention itself states that
children exercise their rights under the "direction and guidance" of their
parents. This includes their right to have their views heard by Local
Authorities. How are parents to exercise their "responsibilities, rights and
duties" to provide the child with guidance and direction in the exercise of
the right to have his or her views heard if the parents are prevented by law
from being present at the hearing?
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There is a whole body of law behind this particular
right, but I won't go into that now.
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1. No child shall be subjected to arbitrary or unlawful
interference with his or her privacy, family, or correspondence, nor to
unlawful attacks on his or her honour and reputation.
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2. The child has the right to the protection of the law against
such interference or attacks.
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The child has the right to be protect by law from
arbitrary or unlawful interference with his or her privacy, family, or
correspondence. Badman proposes, instead, to make such interference lawful.
However, he has not shown that the interference is not arbitrary.
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The fact
is that all information that the Local Authorities might reasonably require
about the education and safeguarding of children can be obtained in far less
intrusive ways than those being proposed by Mr Badman. That means that his
proposed home visits and interviews are arbitrary in every sense of the word.
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1. States Parties shall use their best efforts to ensure
recognition of the principle that both parents have common responsibilities
for the upbringing and development of the child. Parents or, as the case
may be, legal guardians, have the primary responsibility for the upbringing
and development of the child. The best interests of the child will be
their basic concern.
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2. For the purpose of guaranteeing and promoting the rights set
forth in the present Convention, States Parties shall render appropriate
assistance to parents and legal guardians in the performance of their
child-rearing responsibilities and shall ensure the development of
institutions, facilities and services for the care of children.
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3. States Parties shall take all appropriate measures to ensure
that children of working parents have the right to benefit from child-care
services and facilities for which they are eligible.
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Mr Badman treats the highlighted text in Article 18
(the second sentence) very lightly. Especially in view of the fact that,
while he quotes Article 29, which states the general content that the child's
education should conform with, he again remains silent about the second
paragraph of the article, which states:
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2. No part of the present article or article 28
shall be construed so as to interfere with the liberty of individuals and
bodies to establish and direct educational institutions, subject always to
the observance of the principle set forth in paragraph 1 of the present
article and to the requirements that the education given in such institutions
shall conform to such minimum standards as may be laid down by the State. Of
course, this clause does constitute a right to home education - without
interference!
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I cannot judge the remainder of Mr Badman's 'legal
framework'. However, the highly selective approach that he follows with the
UN Convention on the right of the child allows him to misrepresent entirely
what that piece of law actually means. In the light of that, I should think
it highly advisable to obtain competent legal opinion on the remainder of the
"law" that he relies on.
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I have some comments about the remainder of the
report as well, but his is all I have time for now.
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