Memorandum submitted by Dave Watson (CS 30)

 

I am a home educating parent with two years experience of successful Elective Home Education. I have grave concerns regarding Clause 26 of the CSF Bill ("Home Education: England"). In particular, a great deal of detail has been omitted. Regulation-making powers are contained in sections 19A, 19B, 19C, 19F, 19G and 19H. As a result, it is impossible to fully consider the proposed legislation and its possible implications. Additionally, legislation could be changed beyond recognition at a later date with minimal, or no, parliamentary scrutiny.

 

Summary:

Use of ambiguous term "welfare of the child" may result in legislation being applied incorrectly.

Many details have not been provided and are left to "regulations". This includes details regarding:

o Information to be supplied during registration

o Items which may trigger revocation of registration

o Assessing educational provision

o Appeals Process (all details have been left to regulations).

Right of entry to home is unnecessary.

Right to interview child alone is unnecessary and compromises all parties; and registration can be revoked if parent/child withholds consent.

The interests of the child are not taken into account.

The Bill makes no attempt to improve support for home educated children.

 

 

Comments on Clause 26 / Home Education.

1. Schedule 1, Section 1: 19B(7) / Welfare of the child

"...if the authority consider that it would be harmful to the child's welfare for the child [to be home educated]"

a) Also see clause 19C(2)(b), and clause 19E(1)(d), and clause 19F(1)(d).

b) "Welfare" is an ambiguous term. There is too much scope for this term to be misapplied and registration refused/revoked on specious grounds. For example, an atheist LA Officer may consider the religious upbringing of a child to be a "welfare" issue (or vice versa). The same issue presents itself regarding cultural differences.

c) Since the aim of this section is to protect the child from abusive activity, the wording should be tightened up to specifically apply to child protection.

d) Note that the CSF Select Committee recommended that education and safeguarding should not be conflated (see section 13 of this document).

 

 

2. Schedule 1, Section 1: 19C(4)(b) / Details required for registration

"...an application for registration of a child's details to include a statement giving prescribed information about the child's prospective education"

a) It is unclear what is required by a "statement giving prescribed information about the child's prospective education". The DCSF has remained silent for several months despite concerns being raised by home educators. The CSF Select Committee also criticised the DCSF for failing to clarify this, especially as the failure has "engendered much hostility from some home educators who might have been reassured [otherwise]" (paragraph 128).

b) One cannot tell if the statement will be a couple of lines outlining an educational philosophy, or a detailed week-by-week plan describing in some depth what topics will be studied under each subject.

c) The ambiguity is allowed to continue as the Bill provides no insights. This is unacceptable because it is impossible to critique legislation if vital detail is missing.

d) Omitting detail from the Bill in this manner gives rise to the problem where legislation can be changed beyond recognition without receiving the benefit of parliamentary scrutiny.

 

 

3. Schedule 1, Section 1: 19F(1)(b) / Revocation of registration

"[if it appears that] information that has been provided...is incorrect or inadequate in a material respect (whether or not it was so when it was provided)."

a) It is difficult to comment on this as the Bill does not specify what information is to be provided when applying for registration (see 19C(4)). However, if information provided is found to be incorrect/inadequate after a successful registration, it would be more efficient to serve a notice requiring it be corrected within a specified timescale. Deregistration will trigger a subsequent re-registration request, with the corresponding administrative overhead.

 

 

4. Schedule 1, Section 1: 19E(1)(b) / Assessing educational provision

"whether [the education] accords with information provided to [the LA] for the purposes of the application for registration"

a) Since the DCSF has failed to clarify what is expected from a "statement giving prescribed information about the child's prospective education," it is impossible to form an opinion on how the LA might assess the educational provision against this statement.

b) One cannot tell whether home educators and LAs should prepare for a 10-20 minute discussion, or a battery of tests lasting several hours.

c) This is unacceptable since it is impossible to critique legislation if vital detail is missing.

d) Omitting detail from the Bill in this manner gives rise to the problem where legislation can be changed beyond recognition without receiving the benefit of parliamentary scrutiny.

 

 

5. Schedule 1, Section 1: 19E(1)(c) / Assessing educational provision

"[The LA is required to ascertain...] what the child's wishes and feeling about [their education] are"

a) School-educated children are not afforded this option. Further, it is not possible to provide school-educated children this option since parental choice comes into play. Parents may have to work during school hours for financial reasons, in which case home-education is not an option. The LA cannot legitimately seek this information from schooled-children. Therefore it cannot legitimately seek it from home educated children either, since this would be discriminatory.

b) This is also open to abuse by LAs using the child's "wishes and feelings" to justify sending the child back to school. This also raises the risk of LAs using leading questions to get the responses they want. For example: wouldn't you like to see your friends every day (in school)?

 

 

6. Schedule 1, Section 1: 19E(3)(d) / Right of entry to the home

"visiting...the place (or at least one of the places) where education is provided to the child"

a) This is a carefully worded way of providing LA Officers access to the home. That this is the intent of the DCSF is confirmed by the Position Statement published on 19th January 2010 which states, paragraph 58, that this will be a meeting in the home in most cases.

b) This creates invasion of privacy concerns.

c) Entry to home without adequate justification is contrary to UNCRC Article 16, paragraph 1 ("No child shall be subjected arbitrary or unlawful interference with his or her privacy, family, home or correspondence...").

d) Following on from the previous point, the CSF Select Committee are emphatic on finding no grounds for allowing right of entry to the home - paragraph 82/recommendation 10 - "We are not convinced that these meetings need to take place in the family home under any circumstances."

e) See also comments under section 7.

 

 

7. Schedule 1, Section 1: 19F(1)(e) / Revocation of registration (not visited the home)

"[An LA may revoke registration] by reason of a failure to co-operate with the authority in arrangements made by them under section 19E"

a) This makes no provision for the scenario where education is provided to the child outside the home.

b) It is clear from the DCSF's Position Statement of 19th January 2010 that the DCSF expects meetings to take place in the home. Similarly, LAs will require meetings take place in the home, and have the right to refuse or revoke registration where this does not happen.

c) To reiterate points made under section 6, this is in opposition to UNCRC Article 16 paragraph 1. Further the CSF Select Committee finds no justification for holding these meetings in the home.

 

 

8. Schedule 1, Section 1: 19E(4) / Right to interview a child alone

"Arrangements...may, unless the child or a parent of the child objects, provide for a meeting with the child at which no parent of the child or other person providing education to the child is present."

a) This section makes no provision for UNCRC Article 12, paragraph 2: "the child shall in particular be provided the opportunity to be heard in any judicial and administrative proceedings affecting the child, either directly, or through a representative or an appropriate body...".

b) CSF Committee notes that proposed legislation "offers the opportunity for an LA Officer to abuse a child, to make false accusations against the parent, and for the child or the parent to make false accusations against the LA Officer" (paragraph 87). It is inappropriate that these issues are not addressed in the Bill.

c) See also comments under section 9.

 

 

9. Schedule 1, Section 1: 19F(1)(e) / Revocation of registration (as child not interviewed alone)

"[An LA may revoke registration if there is] an objection to a meeting as mentioned in section 19E(4)"

a) The Bill has been phrased disingenuously. Whilst there appears to be the option to refuse to allow a child be interviewed alone, this section makes it clear that refusal may result in registration being refused or revoked.

b) This section erodes the child's right to silence, since it is not possible for the child to decline to be interviewed alone without taking the risk that the LA may refuse registration as a result.

c) This makes no consideration for the child's welfare. It seeks to put a child into a position where his future is dependant on the answers provided to a stranger in an interview which affords no support from parents. This will be doubly stressful for the child who has been deregistered from school due to unchecked bullying, and who faces being returned to school if he provides the wrong answers.

d) There is no guarantee that interviewing a child alone will provide the information the LA seeks (section 19E(1)) as many will be shy and uncommunicative if left alone with a stranger.

e) See also comments under section 8.

 

 

10. Schedule 1, Section 1: Clause 26, 19F(6) / Revocation of registration

Entire section.

a) Further detail regarding criteria for revoking registration has been omitted from the Bill.

b) This is unacceptable since it is impossible to critique legislation if detail is missing.

c) Omitting detail from the Bill in this manner gives rise to the problem where legislation can be changed beyond recognition without receiving the benefit of parliamentary scrutiny.

 

 

11. Schedule 1, Section 1: 19G / Process of Appeal

Entire section.

a) No detail of the appeals process is provided, beyond stating its existence.

b) This is unacceptable since it is impossible to critique legislation if no detail is being provided.

c) Omitting detail from the Bill in this manner gives rise to the problem where legislation can be changed beyond recognition without receiving the benefit of parliamentary scrutiny.

 

 

12. Schedule 1, Section 2: 5(6) - Amendment to s437 of Education Act 1996:

"(3A) If it appears to a local authority in England -

(a) that a child in their area is a home educated child but is not

registered on their home education register, and

(b) that it is expedient that the child should attend school,

the authority shall serve a school attendance order on the child's parent"

 

(3B) In determining...whether it is expedient that a child should attend school, an authority shall disregard any education being given to the child as a home educated child"

 

a) This requires an LA to issue an SAO against any home-educated child who is not on the LA's Home Education register. This is because the Bill requires that all home educated children be registered. The only outcome described in clause (3A) is that a School Attendance Order be served. Therefore sections (3A)(b) and (3B) are redundant.

b) By failing to allow registration on the LAs Home Education Register as a valid outcome, this amendment does not consider what is best for the child.

c) Similarly, section (3B)'s requirement that education provision be disregarded reinforces the position that the Bill does not fully take into account what is best for the child.

 

 

13. General Comments on Clause 26

 

a) The Bill conflates education and safeguarding. The CSF Select Committee notes that conflating education and safeguarding is problematic (Review summary), and recommends that "LA officers responsible for liaising with home education families should not be given the right to interview a child away from the child's parents. That right should be reserved for colleagues who have primary responsibility for child safeguarding" (paragraph 89 / recommendation 12).

 

b) The interests of the child are not represented in Clause 26. The Bill only mentions registration and monitoring. The DCSF has not taken the opportunity to improve support for home educated children.

 

c) The proposal undermines the duty placed on parents by Education Act 1996:

 

The parent of every child of compulsory school age shall cause him to receive efficient full-time education suitable-

(a) to his age, ability and aptitude, and
(b) to any special educational needs he may have,

either by regular attendance at school or otherwise.

Education Act 1996, section 7

 

The proposed legislation undermines this duty by providing Local Authorities with the freedom to arbitrarily interfere with the decision to educate at school or otherwise (see comments on section 1, 3, 4, 5, 7, 9, 10 and 11).

 

d) Given the comments above, clause 26 should be removed.

 

 

 

References

UNCRC - United Nations Convention on the Rights of the Child

CSF Select Committee

- wherever quotes/opinions have been attributed to the CSF Select Committee, references are to "The Review of Elective Home Education," Second Report of Session 2009-10.

 

January 2010