Memorandum submitted by Mr. James Chilton (CS 08)

i) I write as a private individual, with regard to the Children, Schools and Families Bill.

ii) I wish to humbly and respectfully suggest that the Committee should consider recommending an addition to Clause 44, as currently worded, so as to give pupils who have attained the age of eighteen the right to take their own decisions in respect of their own education. The suggestion, and the reasons for it, is set out in detail below.

Executive Summary

1) Clause 13 of the aforesaid Bill, as currently drafted, will lower the maximum age at which parents have the parental right to withdraw their children from the provision of sex education from eighteen to fourteen.

2) Mr. Vernon Coaker M.P., the Minister of State for Schools and Learnings, stated in the debate on second reading of the Bill in the House of Commons on the eleventh day of January 20101 that "it is nonsensical for parents to have the continued right to withdraw their children from sex education after they have reached the age of majority". (paraphrased slightly)

3) I wholly concur with the assessment of Mr. Coaker in this respect, and feel that his comments would apply equally to the continuation of all such parental rights after the age of majority, and not merely to those relating to sex education.

4) I therefore note with surprise that there are currently no plans to amend Section 402(2)(b) of the Education Act 1996, which provides that schools may withdraw pupils from public examinations [other than GCSEs] based solely on the request of the parent, regardless of the age of the pupil.  As such, an eighteen-year-old adult pupil could conceivably be withdrawn from A-Level examinations based solely on the whim of their parents, even after this Bill comes into effect.

5) I also wish to draw the attention of the Committee to the widespread practice amongst schools of insisting that a pupil who has attained the age of eighteen must nonetheless continue to obtain the consent of their parents as an absolute condition of their participation in school activities, such as educational field trips.

6) The imposition of such a requirement means that the parent of the adult pupil retains the parental right to grant or withhold their consent to the pupil's participation in the educational activity, notwithstanding that the adult pupil has attained the age of majority. If the parent exercises their continuing parental right to withhold consent, then the adult pupil is not permitted to participate by their school, notwithstanding both that the pupil may desire participation, and that such participation is in the pupil's best interests.

7) In particular, I believe that the adoption of such policies acts as a disincentive for sixth-form pupils to remain in full-time education, and may contribute to the low 'staying-on rate' in England and Wales relative to many other developed countries.

8) I also suggest that, based on the recent report of the Joint Committee on Human Rights4, it may conceivably be contrary to Articles 3 and 12 of the United Nations Convention on the Rights of the Child (UNCRC) to impose such a parental consent requirement on sixteen and seventeen-year-old sixth-form pupils, having particular regard to the right of the child under Article 12(1) to have their views taken into account in keeping with their age and maturity.

9) If the application of such a policy in respect of older children was indeed found to be unlawful under the UNCRC, then it would surely be Wednesbury2 unreasonable to impose such a requirement on eighteen-year-old pupils, notwithstanding that they are legal adults and therefore do not enjoy the protections of the UNCRC.

10) Under section 3(1) of the Children Act 1989, parental rights are supposed to form part of the wider parental responsibility of the parent towards their child. These parental responsibilities terminate on the child's eighteenth birthday.

11) I therefore suggest that it is nonsensical, even perverse, for parents to retain any such parental rights after a pupil has attained the age of eighteen, and therefore reached majority under the provisions of Section 1 of the Family Law Reform Act 1969 (FLRA). This applies equally regardless of whether the parental rights in question derive directly from statute law, as is the case with the sex education opt-out, or indirectly from the application of school policies and rules, as is the case with the pupil's participation in school activities.

12) I believe that it is contrary to wider public policy for schools to be permitted to lawfully adopt internal policies and rules which, to all intents and purposes, restore parental rights after they have been terminated in law.

13) I also consider that it is irrational for eighteen-year-old adult pupils to be permitted to take some decisions in relation to their own education [for example, accessing their school records] but not others [for example, going on a school field trip].

14) There have been real cases whereby eighteen-year-old pupils have been treated less favourably by their school based solely on the unreasonable withholding of parental consent. Although such cases are undoubtedly rare, I believe that even one case is one too many.

15) I note that many other countries have adopted clear legislation prohibiting schools from requiring the consent or signature of the parent for any educational decision after the pupil has attained the age of majority.

16) I respectfully suggest that the Committee should take this opportunity to recommend that this Bill is amended so as to contain a similar requirement.

17) To this end, I have drafted a suggested addition to Clause 44 on 'Interpretations'. This suggested sub-clause, if adopted, would define a pupil who has attained the age of eighteen as their 'own parent' for the purposes of section 576 of the Education Act 1976. It would further require that schools set and interpret internal rules and policies relating to parental involvement in strict accordance with this sub-clause, save as otherwise provided by regulations.

18) The effect of the adoption of this sub-clause would therefore be to give eighteen-year-old pupils the legal right to take their own decisions in respect of their own education for any decision that, according to school policies, currently falls to the pupil's parent.

Schools and eighteen-year-old pupils

18) Many schools continue to insist that a pupil who has attained the age of eighteen must nonetheless continue to obtain the consent of their parents as a condition of their participation in school activities, or of enjoying certain privileges; for example, leaving the school site at lunchtime. This means that the decision on whether or not to participate is taken not by the adult pupil, but by their parents, as part of extended parental decision-making rights.

19) Additionally, such schools typically insist that eighteen-year-old pupils must get absence notes signed by their parent, even if they are genuinely ill.

20) If a school instead adopts a policy of allowing eighteen-year-old pupils to sign their own consent forms, then the parental decision-making rights in question clearly do not exist, and the pupil takes their own decision as to whether or not to go on the trip. This illustrates that the parental rights being exercised are created by the school through the application of a mere school rule, rather than through the direct application of any law. I do not believe it should remain lawful for schools to restore parental rights over legal adults where they no longer formally exist in law.

21) The underlying rationale behind school parental consent requirements in general is to: a) protect the right of parents to make decisions on behalf of children under eighteen, and b) protect the school from any legal liability that might arise from taking children under eighteen on trips without parental consent. Neither scenario is remotely applicable to pupils over eighteen.

22) It has been further established that in loco parentis no longer applies to eighteen-year-olds; that parental consent carries no formal legal standing in respect of an eighteen-year-old, and would not protect a school from liability in any way in the unlikely event of an accident. Therefore, to my mind, there is no good reason for a school to insist on parental consent for eighteen-year-old pupils.

23) I note that sections 576 and 579 of the Education Act 1996 defines "parent" to additionally include people who are not natural parents, but only in respect of pupils who have not attained the age of eighteen.

24) This means that a natural parent of an eighteen-year-old pupil continues to exercise parental rights, but a (former) guardian, such as a grandparent, does not.

25) The right of a parent to grant or withhold consent for a pupil's participation in a school activity is meant to form part of wider parental rights, which in turn forms part of wider parental responsibility under section 3(1) of the Children Act; the latter was of course extinguished entirely on the pupil's eighteenth birthday. I would draw the attention of the Committee to the famous Gillick 3 case: in which it was held that that "the rights of a parent exist primarily because of the parent's duties to the child" and further held that "parental rights disappear upon reaching the age of majority".

26) Given the lack of any obligation to exercise their continuing parental rights in a responsible manner, I would accordingly suggest that imposing a continued parental consent requirement on legal adults gives parents the power to abuse these decision-making rights for their own benefit. For example, a parent might decide to withhold their signature as a form of "punishment by proxy" based purely on perceived domestic misconduct by their adult son or daughter.

27) The DCSF suggested, in its first e-mail to me5, that a pupil who feels that a school rule is being applied in an unreasonable manner should lodge a formal complaint using the school's complaints procedures. However, I feel that, there are at least three problems with this approach, given the specific context under consideration, as set out below:

1) The adult pupil may mistakenly believe, or be led to believe by their school, that parental consent remains a statutory requirement even after they have turned 18, and further may be unaware that they even have a right to complain.

2) The pupil may not wish to divulge details of their difficult relationship with their parents, and may fear victimisation in the private life if they challenge their parent's continued authority to take educational decisions on their behalf.

3) Even if a complaint is lodged, the school may well decide, based on DCSF and local authority guidance, that they have no choice to honour parental wishes, even if they privately think that the parent is being wholly unreasonable in withholding their consent. Indeed, an independent school, being governed by the law of contract, may even be under a contractual obligation under the law of contract to respect a withholding of parental consent in such circumstances

28) For these reasons, I would suggest that any eighteen-year-old pupil in this situation currently has few truly realistic options other than to acquiesce in their less favourable treatment. Dropping out of school altogether is perhaps not a proportionate and sensible response, although some pupils have done just that, contributing to the relatively high drop-out rate of sixth-formers in the UK relative to other countries.

29) Even if the parent of an eighteen-year-old pupil chooses to exercise their continued parental rights in a responsible manner, as most do, by signing the parental consent form as requested, I would still argue that it is demeaning, even humiliating, for a legal adult to be made subject to the decisions of their parents in this way.

30) I also consider that a school policy of requiring eighteen-year-old pupils to continue to obtain parental consent for school activities is inconsistent with the decision-making rights that such a pupil has in many other aspects of education law.

31) For example, a eighteen-year-old sixth-former can enrol themselves in school, choose their own subjects, withdraw themselves from collective worship, represent themselves in formal disciplinary hearings, access their own school records; and even withdraw themselves from school altogether.

32) Furthermore, at present, an eighteen-year-old pupil can choose to enrol at and attend a school, and to study, say, Biology without reference to their parents, but may then be told by their school that they require parental consent to go on an educationally necessary trip relating to the completion of their Biology A-Level. I consider this to be irrational.

33) I note that the Joint Committee on Human Rights [JCHR], has recently issued a report4 criticising the Government for, in their opinion, giving parents too many rights over the education of older children at too high an age. They suggested that this arguably constitutes a breach of Articles 3 [which states that the best interests of the child are paramount] and 12(1) of the UNCRC [which requires that in all decisions effecting children due weight should be attached to their views taking into consideration their age and maturity].

34) I suggest that the UNCRC applies just as much to 'non-statutory' decisions, such as participating in school trips, as it does to 'statutory' decisions, for example, the excusal of pupils from collective worship. If the application of such a school policy in respect of seventeen-year-old pupils was indeed found to be unlawful under the UNCRC, then it would surely be Wednesbury2 unreasonable to impose such a requirement on eighteen-year-old pupils, notwithstanding that they are legal adults and therefore do not enjoy the protections of the UNCRC.

35) The DCSF has published guidance 5 which suggests that schools should continue to get parental consent for school trips for all pupils, regardless of age, ostensibly due to liability issues.

36) However, no such liability issues could ever apply to eighteen-year-old-pupils. The guidance makes absolutely no distinction between a four-year-old and an eighteen-year-old, and, as such, I would suggest that this too could be a breach of the UNCRC.

37) The Education Act 1996 gives parents substantial rights over the education of pupils, and, more pertinently, specifically define 'pupil' as "a person for whom education is being provided at a school who has not attained the age of nineteen". As such, the Education Act effectively creates a dual age of majority in law, effectively being nineteen in respect of educational matters at a school, and eighteen in respect of everything else (as per the FLRA).

38) I believe that there should be a single age of majority and that eighteen-year-old pupils, being adults, should be able to take all their own decisions in respect of their own education.

39) The Government, has, over the last few years, gradually extended the rights of young people over their own education, but has only ever changing a specific narrow section of individual law to grant new rights on a point-by-point basis, without, as far as I can tell, ever truly pausing to consider questions of consistency, either with other individual decision-making rights or with the age of majority more generally.

40) The lack of clarity on the status of eighteen -year-old pupils has created confusion amongst schools, parents, and different county councils, with different local education authorities adopting different policies towards the necessity or otherwise of a continued requirement for parental consent after a pupil has attained the age of eighteen.

41) I have included links to the official guidance issued by a county council6 expressly mandating that eighteen -year-old pupils must get their parent's consent to go on school trips, as is an internal school policy document7 explicitly stating that parental permission for school trips must still be obtained by pupils over the age of eighteen. You will note that the school policy also includes a requirement for the parent of an eighteen -year-old pupil to complete a medical consent form, notwithstanding that such medical consent would be legally worthless and could lead to confusion or worse in the event of an emergency.

42) Many developed countries in the world, certainly including Germany and Canada at the very least, explicitly allow eighteen -year-olds to take all their own decisions in respect of their own education, including signing their own consent forms. For example, section 49061 of the California Education Code8 states that: "If a pupil has attained the age of 18 years ...[snip], the permission or consent required of, and the rights accorded to, the parents or guardian of the pupil shall thereafter only be required of, and accorded to, the pupil."

43) I do acknowledge that eighteen-year-old pupils ought to obey all reasonable school rules, but I suggest that there are very solid grounds for distinguishing between rules requiring parental consent, and other 'ordinary' rules, such as a school uniform requirement.  Rules requiring parental consent involve the transfer of decision-making rights from the adult pupil to a person who no longer exercises legal parental responsibility and potentially put an adult pupil in a weaker position in their domestic life in relation to the exercise of these rights.  By contrast, 'ordinary' rules do not.

44) Similarly, the difference between a school rule requiring parental consent for 18-year-old pupils and a rule requiring parental notification is that, in the latter, the parent is informed, and may express their wishes, but the adult pupil has the final say; with the former, the adult pupil may express their wishes, but the parent has the final say.

45) If the UK adopted a Californian-style law, then this would not necessarily prevent parental notification, but it would clearly establish the principle in law that eighteen-year-old pupils are adults and are therefore entitled to take their own decisions, including signing their own school forms to grant themselves consent for participation in school activities.

46) My draft clause, based largely on the Californian example, is therefore as follows, and I hope the Committee will consider recommending it for adoption in the Children, Schools and Families Bill:

New clause 44(3)- Interpretation of Act- to amend section 576 of the Education Act 1996, by adding a new section 576ZA

(1) Any reference to a parent in this Act- shall be taken, in the case of a pupil who has attained the age of eighteen years, as a reference to the pupil himself.

(2) For the purposes of subsection (1), a pupil shall be considered to have attained the age of eighteen in relation to any proposed future educational activity that is scheduled to commence on or after his eighteenth birthday.

(3) It shall be the duty of the school to act in accordance with this section when setting, interpreting and applying any internal rule or policy insofar as it relates in any way to the involvement of a parent in the education of the pupil at the school.

(4) The definition of "parent" in subsection (1) also applies (unless the context otherwise requires) for the purposes of any instrument made or having effect as if made under the Education Acts.

(5) Regulations may provide for subsection (1) not to apply, or to apply only to a prescribed extent, in relation to-  i) the supply of information by the school to a parent in respect of the pupil's educational attainment at the school; and ii) the charging of fees by the school in respect of the pupil's education at the school.

47) This clause would also end the anomaly of continued parental influence over the examination entry of an eighteen-year-old under section 402, as well as covering any other similar clauses in primary and secondary legislation which I have not spotted, but which nonetheless amount to an extension of parental rights past the age of majority.

48) It would also end the, in my opinion, unfair situation whereby some eighteen-year-old adult pupils have divulged confidential and sensitive personal information [such as HIV status or sexual orientation] to teachers or school counsellors in strictest confidence only to find that the school then betrays their confidence by immediately informing their parents. This has often led to the pupil being treated less favourably by their parents in their domestic life as a result. I do feel, based on Van Hannover vs. Germany9 , that this is, again, an arguable violation of Article 8 of the ECHR.

Conclusion

49) I earnestly hope the Committee will ask itself the following question:

1) Whether it agrees that it should be made unlawful for schools to set and apply internal policies and rules in such a way as to extend parental rights past the age of majority?

50) If it answers this question in the affirmative, I trust that the Committee will recommend to the House that a suitable clause be inserted in the Bill at third reading so as to guarantee the rights of adult pupils to take their own decisions in respect of their own education.

 

January 2010

References

1) Copy of debate for the eleventh day of January, ultimately taken from Hansard:

http://www.theyworkforyou.com/debates/?id=2010-01-11a.425.0

 

2) Wednesbury judicial test of unreasonableness of a decision made by a state body:

http://www.practicallaw.com/6-200-9152

 

3) Gillick (Gillick v West Norfolk and Wisbech Area Health Authority [1986] AC 112):

http://www.hrcr.org/safrica/childrens_rights/Gillick_WestNorfolk.htm

 

4) Report of Joint Committee on Human Rights

http://www.publications.parliament.uk/pa/jt200809/jtselect/jtrights/169/16910.htm#a34

 

5) DCSF policy on school trips and parental consent [pp 6]:

http://www.southamptoncis.org/images/Schools,%20Parenting%20and%20Parenting%20Responsibility_tcm21-214428.pdf

 

6) Leicestershire policy [pp 157- 159]:

http://www.leics.gov.uk/index/education/support_for_schools/oee/oe_edu_current_advice.htm

 

7) Typical school policy [pp 2]:

http://209.85.229.132/search?q=cache:2pIuklkQSxUJ:www.beauchamp.leics.sch.uk/uploads/pages/page14/planning%2520and%2520organising%2520a%2520trip.doc+BEAUCHAMP+COLLEGE+%2B+letter+to+parents&cd=1&hl=en&ct=clnk&gl=uk

 

8) California law on schools and eighteen-year-old students:

http://law.onecle.com/california/education/49061.html

 

9) Von Hannover v Germany (2005) 40 EHRR 1 [pp6];

http://docs.google.com/viewer?a=v&q=cache:W1GSh2v82mMJ:www.1cor.com/1155/records/1188/OS%2520talk.pdf+artilce+8+echr+%2B+mosley&hl=en&gl=uk&sig=AHIEtbSzwH7QhFBosfFxUR49D2kmAd9k_A Held that ECHR, article 8 protects "a zone of interaction of a person with others, even in a public context" and that the positive obligations on State bodies (including Courts) under ECHR, art.8 may require "the adoption of measures designed to secure respect for private life even in the sphere of relations between individuals themselves".

10) Children, Schools and Families Bill research paper [pp 30-31]:

http://www.parliament.uk/commons/lib/research/rp2009/rp09-095.pdf

(not referred to directly in text)