Memorandum submitted by the Family Education Trust (CS 06)
For almost 40 years, Family Education Trust has conducted research on a range of issues with a view to promoting stable family life and the welfare of children. Having participated in the reviews, inquiries and consultations which led to the present Bill, and having met with Sir Alasdair Macdonald during his independent review of Personal Social, Health and Economic education (PSHEe) and with Graham Badman during the course of his home education review, we have a particular interest in the sections of the Bill that relate to sex and relationships education (SRE) and to home education.
· PSHEe, including SRE, should not be made a statutory part of the national curriculum. It would reduce the influence of parents and the discretion of schools, and it would deprive primary schools of choice and run counter to the government's general education policy. Also, there is a lack of firm evidence for the effectiveness of sex education and strong public opposition to compulsory SRE.
· Provisions to protect children from inappropriate teaching and materials in SRE should be retained within the legislation.
· The right of parents to withdraw their children from SRE should remain in place for as long as parents bear the legal responsibility for the education of their children.
· There is no need for the proposed registration and monitoring system for home educators. The current legal framework is consistent with British legal traditions and with international human rights instruments, and pays due regard to parental responsibilities, family privacy and child welfare.
· There is no justification for any limitation of the defence of reasonable punishment.
1. PSHEe and sex and relationships education (Clauses 11-13)
There are compelling reasons for not making PSHEe (including SRE) a statutory part of the national curriculum.
1.1 It would reduce the influence of parents over what is taught. Schools are currently required to consult with parents regarding their sex education policies and be responsive to their wishes. Adding SRE to the national curriculum would make schools less accountable to parents in what is a particularly sensitive and controversial subject area which, for many, engages strong religious convictions.
1.2 It would limit the discretion of individual schools. At present, schools are free to develop their own policies on sex education in line with their own ethos. However, one of the government's key objectives in making SRE within PSHEe statutory is to ensure consistency. The Secretary of State has already confirmed that all maintained schools,
including faith schools, would be required to teach pupils under the age of consent about contraception and the acceptability of homosexual relationships. Allowing schools flexibility to teach sex education in line with their ethical and moral values is incompatible with the goal of consistency.
1.3 It would deprive primary schools of choice. While primary schools are currently required to have a policy on SRE, they are under no obligation to teach anything beyond the requirements of national curriculum science. However, making PSHEe statutory from primary school entry would remove discretion from primary schools with regard to SRE provision.
1.4 It would run counter to the government's general education policy. There are considerable pressures on the curriculum, and making PSHEe statutory runs contrary to the government's general policy. According to ministers: 'Recent curriculum developments have been aimed at reducing the statutory core and allowing schools even more autonomy to organise their curriculum.' However, making PSHEe statutory is a step in the opposite direction.
1.5 There is a lack of firm evidence for the effectiveness of SRE. The government argues that statutory SRE is 'vital for the healthy development of every child and young person' and will reduce teenage pregnancy rates. However, very little research has been conducted to evaluate the success of sex education programmes. The government's review group noted:
'[T]here is a dearth of good quality international evidence on SRE. A literature review of the international evidence that does exist confirms that it is difficult to be precise about the impact of SRE, for a number of reasons. Firstly, there is not always clarity about what the objectives of SRE are... Second, there is such significant variation in the delivery of SRE that it makes comparisons between programmes difficult.'
1.6 The general public does not support statutory SRE. After repeatedly excluding parents from its review of SRE, the government belatedly agreed to subject its plan to introduce statutory PSHEe to public consultation. In spite of a concerted campaign from the sex education lobby, acknowledged in the Qualifications and Curriculum Development Agency (QCDA) report, over two-thirds (68 per cent) of respondents to the government's public consultation exercise disagreed with making PSHEe a statutory part of the National Curriculum, with 64 per cent 'disagreeing strongly'.
1.7 Clause 13(4)(c) of the Children, Schools and Families Bill proposes to delete from the present law a clause aimed at protecting children from 'teaching and materials which are inappropriate having regard to the age and the religious and cultural background of the pupils concerned'. This is a matter of concern to many parents and does not sit comfortably with Article 9 or with Article 2 Protocol 1 of the European Convention on Human Rights.
2. Exemption from sex and relationships education (Clause 14)
2.1 The explanatory notes to the Bill state that giving all pupils a guarantee of sex education lessons 'at the very least in the last year of compulsory education' will ensure that their right to a private life under Article 8 of the European Convention on Human Rights is not infringed. However, Article 8 does not provide any basis for regarding 15- and 16-year-olds as autonomous individuals, to be treated independently of their parents. Rather, the
Convention refers to 'the right to respect for...private and family life'. The government's proposal does not take account of the whole family dimension.
2.2 The principle enshrined in Article 2 Protocol 1 of the European Convention on the Rights of the Child that 'the State shall respect the right of parents to ensure such education and
teaching in conformity with their own religious and philosophical convictions' applies throughout the years of compulsory education and does not cease at some arbitrary point determined by the government. We therefore question the government's contention that 'it is acceptable and consistent with human rights principles to limit the parental right of withdrawal by reference to a child's age'.
2.3 The logical extension of the government's argument would be to transfer the statutory duty for ensuring that children of compulsory school age receive a suitable and efficient education from parents to the children themselves once they reach the age of 15. However, we do not see any support for such a fundamental change in education law. We further note that 79 per cent of respondents to the government's public consultation agreed that parents, carers and guardians should retain their current right to withdraw their children from the SRE element of PSHEe.
2.4 Article 12 of the United Nations Convention on the Rights of the Child provides no support for the government's proposal. The fact that the Bill does not propose to grant pupils the right to withdraw themselves from sex education classes from their 15th birthday demonstrates that the proposal has nothing to do with the rights of the child. The effect of the measure would rather be to limit the influence of parents over what their children are taught, while allowing the state to determine what 15- and 16-year-olds will learn about sex and relationships, irrespective of the views of parents or young people themselves.
2.5 The government has admitted that there is no evidence that 15- and 16-year-old pupils whose parents have hitherto withdrawn them from SRE are at any greater risk of teenage pregnancy or sexually transmitted infections than other pupils. The interference with the right to a private and family life cannot therefore be justified on the basis that it is required to protect health and morals.
2.6 When children's rights arguments were employed against the right of parents to withdraw their children from collective worship and Religious Education lessons in the Joint Committee on Human Rights, the children's minister vigorously defended the parental right of withdrawal. She stressed that 'parents bring up children in this country, not the government and not schools'. In line with this principle, which lies at the heart of the Children's Plan, it is important that the parental right of withdrawal from SRE should remain throughout the years of a child's compulsory education.
2.7 Clause 14 would result in parents losing certain rights, while still retaining all their responsibilities. In order to ensure that rights and responsibilities remain together, the right of parents to withdraw their children from SRE should remain in place for as long as parents retain the legal responsibility for the education of their children.
3. Home Education:
The government's proposal has rightly been characterised as the introduction of a licensing scheme, whereby home educating parents are required to apply to the local authority (LA) on an annual basis for permission to provide their children with an education otherwise than at school.
3.2 To require home educators to apply for an annual licence would undermine the legal duty that all parents have to ensure that their children receive a full-time and efficient education. It would turn home education into a special privilege that may be granted or withheld by the LA, rather than a choice that may be freely exercised with a view to fulfilling a legal duty.
3.3 Education is one among many responsibilities that parents bear towards their children, along with feeding them, clothing them, caring for them, protecting them, attending to their health needs etc. Parents should no more be required to seek a licence from central or local government to educate their children than they should be required to apply for a licence to feed and clothe their children, and provide for their other needs.
3.4 The position of home educating parents is comparable to that of full-time parents of a pre-school-aged child: if parents choose to place their child in some form of child care or day nursery, they go through a registration process, but no form of registration or monitoring is required if they choose to care for their own child at home. We see no compelling reason why that should change at the beginning of the term after a child reaches the age of five. Since it is parents who bear the legal responsibility to ensure their children receive a full-time and efficient education, home education should similarly be viewed as the default position, requiring no form of registration.
3.5 Some have argued that parents who home educate are not simply performing a private duty, but also a public function. However, when parents educate their children at home, they are no more performing a public function than when they feed them, clothe them, nurse them back to health, and care for them in an infinite number of other ways. The family is a private institution, not an arm of the state.
3.6 One of the advantages of home education is that provision can be tailored to the developing needs of an individual child and delivered in the context of a close parent-child relationship. To insist that home educating parents provide a statement giving prescribed information about the child's prospective education introduces an unnecessary element of bureaucracy. Most home educating parents view the education they give their children as an aspect of parenting. They should therefore no more be required to provide a statement regarding their child's education than any other parent should be required to submit a statement of approach to parenting.
3.7 Home educating families typically do not draw a distinction between education and family life - the two are very much intertwined. It is for this reason that many are so uncomfortable about registration and monitoring. They would feel that their family life were being monitored and their children surveilled to a degree not experienced by children attending school.
It is not new legislation that is required but a correct understanding and use of the legislation already in place. The current law allows parents the freedom to determine how their children will be educated, while empowering LAs to take appropriate action where it appears to them that a child of compulsory school age in their area is not receiving suitable education, either by regular attendance at school or otherwise.
3.9 Similarly, where the LA has 'reasonable cause to suspect that a child who lives, or is found, in their area is suffering, or is likely to suffer, significant harm', it is empowered to 'make, or cause to be made, such enquiries as they consider necessary to enable them to decide whether they should take any action to safeguard or promote the child's welfare'.
3.10 The current legislation is perfectly adequate but all too often poorly understood. There is a clear distinction to be drawn between saying that LAs have a duty to identify, so far as possible, the children in their area who are not registered pupils at a school and are not receiving suitable education otherwise than at school, and saying that they have a duty to
ensure that all
children receive a suitable education. The duty to ensure that children receive
a suitable education rests with parents, not with the LA.
3.11 Section 437(1) of the Education Act 1996 does not require LAs to routinely assess the education of children being educated otherwise than at school. The current DCSF guidelines state: 'Local authorities have no statutory duties in relation to monitoring the quality of home education on a routine basis'. Section 437 is engaged where 'it appears to a local education authority that a child of compulsory school age in their area is not receiving suitable education, either by regular attendance at school or otherwise'. Only in cases where it comes to the attention of the LA that parents are failing in their s7 duty does the LA have a statutory duty to require parents to satisfy them that their child is receiving a suitable education.
3.12 Given the less than robust evidence base with regard to the relative safeguarding risk to school and home educated children, there is no basis on which to treat home education as a risk factor in child abuse. It is, however, well-established that child abuse is disproportionately found in families where children are not brought up by their two natural parents, and particularly where the child's natural mother is cohabiting with a partner who is not related to the child. Nevertheless, it would be regarded as unacceptable and highly discriminatory to routinely monitor all children not living with their two natural parents. If it is unacceptable to introduce special safeguarding measures where there is an established link between child abuse and family structure, it should be even more unacceptable to contemplate routinely monitoring home educating families where there is no established link.
3.13 We object to the proposal to require the LA to ascertain 'the child's wishes and feelings' about being home educated as part of its monitoring procedure. The decision of parents to send their children to school is respected, irrespective of the wishes and feelings of the child because responsibility for ensuring a full-time and efficient education rests with the parent, not with the child. We fear this provision could be abused by LA personnel who are unsympathetic towards home education.
3.14 The proposal to grant LA officers a statutory right to meet with home educated children on at least an annual basis suggests that home educating parents are being treated with a degree of suspicion like no other group of parents. We are also deeply concerned that the proposed legislation envisages that refusal to allow a LA official to see a home educated child alone could be deemed uncooperative, leading to the revocation of registration.
3.15 It is important to uphold the legal tradition whereby citizens of a free country are presumed innocent until found guilty. In the absence of evidence to the contrary, it should be assumed that parents are fulfilling their legal responsibilities with regard to the care and education of their children. If such a presumption were more widespread, it would help to resolve many of the conflicts that have arisen between LAs and home educating parents. Agents of the state do not routinely enter the private homes of citizens to ascertain that they have not committed a criminal offence, and there is no reason why routine monitoring arrangements should make home educating parents the exception to this general rule.
3.16 The current legal framework for home education is consistent with British legal traditions and with international human rights instruments, and pays due regard to parental
responsibilities and family privacy, while the proposed registration and monitoring system undermines parents and suggests a lack of trust.
3.17 We are not sure that the strengths and benefits of the present framework are always appreciated:
· it permits flexibility - where support is needed and requested it can be given;
· where parents are fulfilling their responsibilities and do not require support or intervention, the LA has no obligation towards them;
· scarce resources are therefore not wasted on monitoring families who neither need nor want LA involvement;
· LA resources are freed up to address situations where 'it appears to them' that a child is not receiving suitable education.
3.18 School attendance orders
It is unacceptable and illogical for the proposed legislation to state that, 'In determining...whether it is expedient that a child should attend school, an authority shall disregard any education being provided to the child as a home educated child.' If the LA is placed under a duty to disregard the education being provided, we fail to see on what other basis it can determine whether it is expedient for the child to attend school.
The non-statutory guidance, issued to LAs in November 2007 following extensive consultation, demonstrates how the current law offers protection for children while respecting the private and family life of home educating families. This guidance should be given more time to bed in, with support and training given to LA personnel in order to ensure that they have a clear understanding of the scope of their role and responsibilities in relation to elective home education within the current legal framework.
4. Reasonable punishment
4.1 Although not covered in the Bill as drafted, we are aware that amendments have been prepared with a view to amending s58 of the Children Act 2004 to limit the defence of reasonable punishment to those with parental responsibility and so we address the issue briefly here.
4.2 To limit the defence of reasonable punishment as proposed undermines the fundamental principle in the present law that parents may arrange for some or all of their parental responsibility to be met 'by one or more persons acting on his behalf'. It also runs contrary to the Children's Plan with its emphatic statement that, 'Government does not bring up children, parents do.'
4.3 It is not the role of the state to intervene in private arrangements made between a parent and another family member or trusted individual acting in loco parentis. Arrangements regarding the manner of administering reasonable and non-abusive discipline to children can be left to parents and should not involve the state. The state should not assume that it cares for children more than their own parents.
4.4 When limiting the defence of reasonable chastisement to those with parental responsibility was raised as an option during a public consultation process in 2000, the majority of
respondents opposed it and supported the status quo.
4.5 There is no compelling public interest in legislating to limit the defence of reasonable punishment. Moderate physical chastisement compares favourably with alternative
disciplinary tactics in terms of its effectiveness and lack of adverse side-effects, and adequate legislation is already in place to protect children against any abusive treatment. It is difficult to see any basis for singling out physical chastisement for special censure in the manner being proposed.
4.6 It would be unjust to deny to parents the option of asking a child's grandparent or trusted family friend, for example, to use reasonable chastisement to correct the behaviour of their own children under specified circumstances in order to ensure a consistency of standards and sanctions in their absence. On sensitive and personal matters such as the care and discipline of children, parents must be free to decide for themselves.
4.7 The consequences for another family member or trusted family friend who was convicted for the moderate correction of a child while acting in loco parentis would be considerable, and completely unjustified given that no harm were caused. It would also represent a misappropriation of public resources.
 HC Hansard,
3 Nov 2008,
 Review of Sex and Relationship Education (SRE) in Schools: A report by the External Steering Group, October 2008, para 22.
 QCDA, Personal, social, health and economic education: Curriculum reform consultation report to the DCSF, September 2009.
 Joint Committee on Human Rights, Children's Rights, HL Paper 157, HC 318, Ev 19-20.
 Education Act 1996, s437.
 Children Act 1989, s47.
 Education Act 1996, s346.
 Education Act 1996, s7.
 Elective Home Education: Guidelines for Local Authorities, para 2.7.
 Children, Schools and Families Committee, The Review of Elective Home Education: Second Report of Session 2009-10, HC 39-1.
R, Broken Homes and Battered Children,
 Children Act 1989, s2(9).
 Department of Health, Analysis of Responses to the Protecting Children, Supporting Parents Consultation Document.
 Larzelere R E, Kuhn B R (2005), 'Comparing child outcomes of physical punishment and alternative disciplinary tactics: A meta-analysis', Clinical Child and Family Psychology Review, Vol. 8, No. 1.