Memorandum submitted by Mr. Imran Shah (CS 02)

 

 

Schedule 1 of the Children, Schools and Families Bill versus Human Rights Act 1988 and the United Nations Conventions

 

 

 

 

1. The author, Mr Imran Shah is a qualified social worker with 15 years experience. He has also worked in the educational/training sector for an additional 10 years, and is a home educating parent of two children.

 

 

EXECUTIVE SUMMARY

2. This submission refers explicitly to Schedule 1 of the Children, Schools and Families Bill, (hereafter referred to as Schedule 1) which proposes changes to the current laws pertaining to home education.

 

3. Schedule 1 of the Children's, Schools and Families Bill violates the Human Rights Act 1988:

as it does not respect the rights of parents to bring up children according to their philosophical or religious beliefs

 

4. Furthermore:

it is unlawful "for a public authority to act in a way which is incompatible with a Convention right."

 

5. Schedule 1 is incompatible with the following articles of the United Nations Convention on the Rights of the Child:

 

6. Article 3 instructs state agencies that they must have the best interests of the child as their primary concern.

 

7. Article 5 protects parents' rights to act to preserve their children's rights.

 

8. Articles 12, 15 and 16 give children the right to refuse to be seen alone, to refuse to associate, and protects them from arbitrary state interference.

 

9. Article 18 mandates state agencies to provide services to parents in recognition of the primary role that they play in bringing up their children.

 

10. The Human Rights Act instructs local Authorities that they must respect parents' rights to educate according to their own religious and philosophical beliefs.

11. The Children, Schools and Families Bill gives wide-ranging powers to local authorities to prevent parents from educating their children at home, without taking into consideration parents' religious and philosophical beliefs, or the best interests of the child. For example should parents choose not to register their children for school, but to educate them otherwise, the new Bill places no obligation on them to inform the local authority. However, should they then become known to the local authority, the authority is directed to issue a School Attendance Order, even though the parents have broken no law, and are exercising their duty to educate otherwise, as per their religious or philosophical beliefs There is no requirement on the local authority to consider whether the issuance of a School Attendance Order is in the best interests of the child. It is enough that the child was unregistered and being educated at home. This places a severe restriction on the freedom that parents have to exercise their duty to educate their children otherwise.

 

12. Article 3 of the UNCRC instructs Local Authorities to have the best interests of the child as the primary consideration.

13. There is no statutory requirement in the Bill for the local authority to consider what is best for the child. E.g. Home educating parents will have to submit a 12 month plan of the forthcoming year's provision. Such a plan mitigates against the very flexibility that is a strength of home education, and prevents parents from responding to the individualised educational needs of their children. Furthermore, when considering the issuance of a School Attendance Order, courts are explicitly directed not to consider the suitability of education being provided. Therefore parents who are providing a suitable education, but who have altered the 12 month plan submitted to the local authority, will not be able to argue in their defence that they were providing a suitable education, and thus serving the best interests of their children.

 

14. Article 5 empowers parents to act to protect their children rights to freedom of association. Implicit in this right is the freedom not to associate.

15. If parents object to their children being seen alone, the local authority can determine that such am objection amounts to a failure to cooperate, under the terms of Schedule 1, and can then issue a School Attendance Order.

 

16. Article 5 states that parents can expect: "state parties to respect their responsibility to provide, in a manner consistent with the evolving capacities of the child, appropriate direction and guidance in the exercise of a child's rights"

17. Schedule 1 does not honour this provision, as it prevents a parent from advising his/her child not to speak to the Local Authority, under threat of being issued with a School Attendance Order, should the Local Authority determine such an action amounted to a failure to cooperate on the part of the parent.

 

 

18. Article 12 gives children the right to refuse to be seen alone.

19. If parents object in order to preserve their child's right, the local authority has the power to consider such an objection as a failure to cooperate, and can then issue a School Attendance Order.

 

20. Article 15 of the UNCRC gives children the 'freedom of association'. Implicit in this, is the freedom not to associate, since one can only have the freedom to associate, if one has the freedom not to associate.

21. The Bill violates this by giving local authorities arbitrary powers to see children alone. Local authorities will have no automatic right to see children alone, unless the local authority officer considers it appropriate. Refusal to be seen alone, may be considered as a failure to cooperate, which can then result in the issuance of a School Attendance Order.

 

22. Article 16 of the UNCRC states that: "No child shall be subjected to arbitrary or unlawful interference with his or her privacy, family, home or correspondence.... The child has the right to the protection of the law against such interference or attacks."

23. There is no protection of the law against the actions of an overbearing local authority and its agents since any refusal to be seen alone may be considered as a failure to cooperate, which can then be used to issue a School Attendance Order. There is no provision in Schedule 1 for an independent judicial appeals process.

 

 

24. In the above instances, the children have committed no crime, the local authority does not need to demonstrate that it has concerns, nor is there any judicial oversight of this process. Finally there is no requirement for a local authority to consider and be able to demonstrate to an independent body that it is always acting in the child's best interests. Children may be subjected to the issuance of a School Attendance Order if their parents assert their rights under the Convention. Should these provisions within Schedule 1 pass into law, a local authority would be in breach of the Human Rights Act were it to exercise its new powers.

 

25. Article 18 requires government and its agencies to recognize that it is parents that have the primary responsibility for the upbringing and development of the child since the best interests of the child will be their basic concern. Agencies are mandated to provide appropriate services.

26. There is no requirement in Schedule 1 for the local authority to consider, or address, or affirm, the needs and wishes of parents, or to provide services that support home educating families. Instead, parents will be answerable to the local authority. Should they wish to educate their children at home, and become known to the local authority, they will be required to register on an annual basis. This registration amounts to a licence, since parents will have to fulfil certain administrative conditions in order to be granted permission to educate their own children. The state and it's!!! agents will be able to refuse this licence on many grounds without ever having to consider the child's best interests, which as the Convention recognises is the parents' basic concern.

 

CONCLUSION

 

27. This Bill represents a significant intrusion into family life Home educating families will be subjected to a range of bureaucratic procedures that have nothing to do with the best interests of children but are no more than administrative obstacles that parents will have to overcome in order to fulfill their natural duties to provide for their children as best they can.

 

28. This Bill will do damage to home educating families and their children since it will allow state agencies to ride roughshod over family life, especially since there is no statutory requirement for state agencies to ensure that they are always acting in the best interests of the child, and to be able to demonstrate that they are doing so, to an independent body. Worryingly, Schedule 1 of the Bill, has no provision for any independent judicial oversight of state actions for families to seek redress against overbearing local authorities who are not acting in the best interests of the children involved.

 

29. The result will be a significant shift in power from the family to the state, even for those families where the children are thriving and their best interests are being met through home education.

 

 

30. I recommend and request that Schedule 1 of the Children, Schools and Families Bill be repealed, and the government initiates a more considered consultation, acting in partnership with home educators, that seeks to ensure that the best interests of home educated children are paramount.

 

 

January 2010