Memorandum Submitted by Mr Imran Shah and Ms Betsy Anderson (CS 04)

Introduction

1. 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.

2. The authors are Mr Imran Shah and Ms Betsy Anderson. Mr Shah is a qualified social worker with 15 years experience, mostly in child protection, and children's welfare. He has two children who are educated at home. Ms Anderson is a Harvard-trained lawyer who practised litigation for nine years in New York, and now home educates three children in London.

 

Executive Summary

3. The authors argue that the powers proposed in Schedule 1:

a. Fail to ensure that local authorities consider the best interests of the child as the paramount and over-riding concern at every juncture.

b. Extend local authority powers to over-ride parents' right to choose to educate their children otherwise than at school,

c. Are inconsistent with the Children's Plan 2007.

d. Are inconsistent with the Children Acts.

e. Are inconsistent with the Education Act 1996.

f. Create a conflict between the local authority and parents in who is ultimately responsible for the provision of education, and who is answerable to whom.

g. Curtail the freedom of parents to educate their children otherwise than at school, in the way that suits their child.

h. Curtail the ability of children to receive an education at home, in a manner that is sensitive to their needs, personalised, flexible, and holds their best interests paramount.

i. Set a dangerous precedent for future legislation to omit the child's best interests as the paramount consideration of local authority action.

Main Submission

4. Schedule 1 contravenes two of the fundamental principles of the Children's Plan: Launching Brighter Futures, which was launched by the government in December 2007. These are:

a. "Government does not bring up children - parents do - so government needs to do more to back parents and families."

b. "Services need to be shaped by and responsive to children, young people and families, not designed around professional boundaries."

 

General Features of Schedule 1

6. Under Schedule 1 to the Children, Schools and Families Bill (Schedule 1) local authorities will have a duty to maintain a register of all home educated children within their area. This duty to keep a register will give local authorities the power to refuse parents permission to home educate, and to curtail the practice of home education, without regard to the education being provided and without regard for the best interests of the child.

7. Home educating parents will not have an affirmative duty to register their children, but a local authority's first step can be to serve a School Attendance Order on any unregistered home educated child. Local authorities will have many powers to refuse or revoke registration, and then issue a School Attendance Order because of the unregistered status that they have thus created. Parents who do not comply with a School Attendance Order will be guilty of a criminal offence. Parents served with such an order will no longer be able to use the defence that they are providing a suitable education.

8. Under Section 7 of the Education Act 1996, it is the parents' duty, not the local authority's, to ensure that children receive a suitable education. Parents may choose to provide that education "otherwise" rather than delegating that duty to a school. Schedule 1 imposes constraints on how parents exercise this duty, should they choose to educate their children at home.

9. Schedule 1 is inconsistent with the Children's Plan and the Children Acts, favours administrative protocol over parents' freedom to choose the form of education for their children, and represents a shift in power from families to civil servants.

 

Local Authority Powers Extended

10. Schedule 1 will give local authorities extensive powers to refuse or revoke registration. They may refuse or revoke registration:

a. If a parent does not immediately apply for registration, even though there is no legal requirement for them to do so.

b. If a parent does not submit a plan for the next year's education on time, or in sufficient detail, or in the authority's designated format.

c. If a parent deviates from the educational plan that they have provided to the local authority, even if by doing so they have improved the education being provided.

d. If a family's circumstances change during the year. The local authority might, e.g., decide it is a material change if a child is found to have special needs, or if a family changed their educational approach to one that was more workable or effective.

e. If an authority, or any other authority in England has ever in the past denied an application to register a child.

f. If parents object to the local authority entering their home on a routine visit.

g. If parents object to the local authority questioning their child with no parent or carer present. Schedule 1 gives parents the right to object to their child being questioned alone, but then permits registration to be refused or revoked if they do so.

h. If the local authority determines that the parents are demonstrating a "failure to cooperate" with any aspect of the local authority's monitoring process.

i. If registration lapses, which happens automatically after one year.

j. If a parent applies to register in order to stop the school attendance order process, the process stops. However, the LA can then refuse to enter the child onto the home education register, and serve another School Attendance Order.

11. In addition, the Secretary of State will be empowered to impose further regulations and technical requirements, without parliamentary debate, and thus will be able to set even more conditions upon parents' freedom to home educate.

12. For an analysis of the provisions and potential interpretations of Schedule 1, and their implications for and impact on home educating families, see the document here: http://tiny.cc/XbTp3

 

Schedule 1 and the Children's Plan

13. Schedule 1 contravenes two of the fundamental principles of Children's Plan: Launching Brighter Futures, which was launched by the government in December 2007. These are:

a. "Government does not bring up children - parents do - so government needs to do more to back parents and families."

b. "Services need to be shaped by and responsive to children, young people and families, not designed around professional boundaries."

14. However, under the terms of Schedule 1:

a. The local authority will be able to revoke registration if it considers that the education being provided is not suitable. It will also be able to refuse or revoke registration if the parents violate a number of administrative protocols, regardless of whether the education being provided is suitable or not. The net effect will be to make administrative procedures central to a local authority's consideration, not the needs of the child.

b. There is no statutory requirement for the local authority to consider whether or not it is acting in the best interests of the child.

c. There is no general requirement for the local authority to consider the suitability of the education being provided, although suitability underpins parents' right to choose to educate their children otherwise than at school. Indeed, local authorities are expressly prohibited from considering the actual education in deciding whether to issue a School Attendance Order.

d. There is no requirement for the local authority to work in partnership with home educating families to improve the education being provided if there are concerns, as opposed to ordering the children to attend school.

e. There is no assertion or recognition that the parents are responsible for the education of their child.

f. There is no requirement for local authorities to provide any services or resources for home educating families.

g. There is no appeal process outlined in the legislation. Schedule 1 states that regulations will be issued providing for a right of appeal, but the appeal process will not be subjected to Parliamentary scrutiny to ensure that it meets tests for fairness, impartiality and justice.

 

Schedule 1 and the Education Act 1996

15. Schedule 1 is inconsistent with the spirit and nature of the Education Act 1996 thus:

a. There is no explicit assertion that it is the duty of parents to educate their children either by regular attendance at school or otherwise. Instead there is a diminution of the freedom and powers that parents have to exercise their duty by choosing to home educate.

b. Local authorities are not required to consider the suitability of the education being provided whenever they consider refusing or revoking registration, and are instructed not to consider it when they issue a School Attendance Order. They are granted broad powers to refuse permission to home educate based only on whether administrative procedures have been followed.

c. The issue of suitability of the education parents provide to their children is removed from judicial consideration. Courts instead are directed to enforce a School Attendance Order against any unregistered home educated child.

 

Schedule 1 and the Children Act 1989

16. The Children Act 1989 set out key principles that guided subsequent legislation that impacts children. Schedule 1 abandons those principles.

17. The Children Act 1989 makes it clear that:

a. "Local Authorities must assess a child's needs and promote the upbringing of children by their own families if safe to do so."

b. Local Authorities must consider the needs of the child with regards to race, culture, religion, gender, disability, or special needs, or any other factors that may be relevant to the needs of the child.

c. "Local Authorities should work in partnership with parents. While the Local Authority will seek a Court order when compulsory action is in the best interests of the child, the first option must be to work with the parents by voluntary arrangement unless to do so would clearly be placing the child at risk of significant harm."

d. "The Court will only make an order if it is better for the child than making no order."

e. "In all cases when the Court determines any question with respect to the child's upbringing, the child's welfare shall be the paramount consideration."

[Our emphasis in bold: cf Children Act 1989; above expression of principles taken from Devon County Council's website: http://tiny.cc/kCR8S.]

18. Schedule 1 is inconsistent with the spirit and nature of the Children Act thus:

a. There is no requirement for the local authority to consider the needs, welfare and interests of the child as paramount.

b. There is no recognition of the importance of family life to the welfare of a child, and no requirement that the Local Authority honour the primacy of the family.

c. There is no requirement for the local authority to work in partnership with home educating families.

d. There is no requirement for the local authority to consider the needs of the child with regards to race, culture, religion, gender, disability, or special needs, or any other factors that may be relevant to the educational needs of the child.

e. There is no affirmation of the "No Order" principle, that an order should only be sought as a last resort.

f. There is no provision for independent judicial oversight.

g. The consideration for the welfare of the child is poorly defined or absent. This is inconsistent with the welfare check-list contained with the 1989 Children Act and with the other acts that shape children's services.

Conclusion

19. The Children Act 1989 marked a paradigm shift in how government agencies dealt with children and families. The authority-centred focus of Schedule 1 marks another paradigm shift, away from the child-centred, family-focused acts and policies that sprang from and were shaped by the Children Act 1989 (Every Child Matters; the Adoption Act; the Children Act 2004; the Leaving Care Act; the Children's Plan).

20. The authors fear that Schedule 1 will set a precedent for subsequent acts, empowering local authorities to impose their own preferences over parents' choice of how to raise their children, to prioritise administrative convenience over working with families, and to resort immediately to court orders for violation of administrative protocols, all without considering the child's best interests or the primacy of the family, and without independent judicial oversight.

21. Given the rushed and ill-considered nature of this legislation, and the controversy of the review that preceded it, we urge the Bill Scrutiny Committee to repeal Schedule 1 of the Children, Schools and Families. The Committee must ensure that the rights of families to educate at home are honoured and safeguarded, rather than disregarded by an administration acting in unwarranted haste.

 

 

January 2010