Education Otherwise Response to the DCSF
Proposals for the Registration and Monitoring of Home Education
Consultation
Question 1: Do you agree that these proposals
strike the right balance between the rights of parents to home
educate and the rights of children to receive a suitable education?
Selection: No.
Comment: In English law, parents have a duty
to cause their children to receive education. The question presents
a false dichotomy and betrays a lack of understanding of the law.
These proposals categorically do not represent a positive move
towards greater rights for children. The parent is the child's
best advocate and home education is an expression of the rights
of the child. It would be ill-advised disproportionate and extremely
damaging for the Government to proceed to legislation on the basis
of a tiny minority of serious cases where the parent was not acting
in the best interests of the child.
The proposals shift the decisions about education
from the parent to the Local Authority in the case of home educated
children and are in conflict with section 7 of the 1996 Education
Act and with statutory guidance on Children Missing Education.
Barrister Ian Dowty states:
"If as the Badman Report says in 3.5 and
3.6 the Talmud Torah test causes a further problem for local
authorities, it cannot be solved by changing the position for
home educators. The Talmud Torah test applies to schools and it
is in that context that it is an expression of the law. A private
or faith school supplies education suitable to age aptitude ability
and special needs and within logistical limitations also to the
preferences and values of the parent. If a parent can discharge
their s7 responsibility by sending a child to such a school,
then why should they not be able to home educate in accordance
with the same principles. To decide otherwise would unfairly discriminate
against home educators."
It is clear from the proposals to involve schools
in the planning of provision that school pedagogy will be imposed
on home education. This is inappropriate for settings with a much
higher adult:child ratio. Many families home educate because they
disagree with the imposition of the National Curriculum, the constant
testing of children, the lack of a child's ability to shape their
own provision and be a full participant in directing their own
learning. The proposals negate the right of parents and children
to define for themselves an appropriate education suitable to
the age, ability, aptitude and any special needs of the child.
The proposals will remove richness and diversity in current provision
and instead will bring ever-increasing prescription and direction
over the child's education at home.
The requirement for a twelve month plan in advance
flies in the face of best practice in terms of encouraging reflective
and responsive provision. This point was made in oral evidence
to the Select Committee on 14 October.
The Badman Review has damaged innovative and
constructive joint working between local authorities and home
educators which does nothing to benefit children or to promote
the rights of the child. Some families have felt compelled to
withdraw voluntary co-operation with local authorities as a result
of the Review. The Review places the relationship between home
educating families and local authorities in an adversarial context,
institutionalises mutual suspicion and does nothing to establish
and address the reasons why some families choose not to have a
relationship with their LA. This point was raised in Select Committee
oral evidence by Education Otherwise on 14 October.
The emphasis on producing work for inspection
and the requirement for a child to "exhibit" learning
show a fundamental lack of understanding of home education and
the dignity and respect afforded to children by home educating
parents. There are good reasons why some families choose not to
have a relationship with local authority officials who undermine
their provision and destroy the self confidence and self esteem
of children through a lack of appreciation and awareness and a
lack of respect for the child.
There appear to be a number of conflicting reasons
for home visits and interviews with children: a safe and well
check by observing the child, ensuring that the child is receiving
suitable education and verifying that the child is able to answer
questions about academic work undertaken during the year.
It also appears to be envisaged that the home
interview would give the child an opportunity to disclose abuse
to a trusted and familiar adult. These four objectives are counter-productive
and wholly incompatible.
Should these proposals be implemented, we predict
a barrage of complaints throughout the country, escalating through
local council complaints procedure to Ombudsman level. Many home
educating families have already been to talk to their MP about
these proposals.
The present law is sufficient but there is no
established framework for liaison between home education representatives,
local authorities and the Department at a local authority level.
Nor is there a framework or mechanism or channels of communication
between the Department at a national level and home education
organisations and local authorities. We suggest that regional
and national conferences should be organised to bring together
practitioners and stakeholders to investigate, discuss and disseminate
best practice.
There has been inadequate central government
guidance and a failure to educate local authorities in home education.
Elsewhere in this consultation submission, Education Otherwise
proposes that the Government take powers to put the 2007 Home
Education Guidelines on a statutory basis.
The parent has a duty to cause the child to
receive education via section 7 of the Education Act 1996.
This can be done through school or outside the school system.
Since February 2007 the local authority
has a duty via s.436A of the Education Act 1996 to make arrangements
to identify children missing education. Paragraph 87 of the
statutory guidance on Children Missing Education states that:
"local authorities should make inquiries
with parents educating children at home about the educational
provision being made for them. The procedures to be followed with
respect to such investigations are set out in the EHE Guidelines,
2.7-2.11 and 3.4-3.6."
Section 437 of the Education Act 1996 requires
the local authority to seek information from parents if it appears
that a child is not receiving education. Ultimately if the local
authority is not satisfied, it has a duty to serve a School Attendance
Order.
The authority has further duties via the Children
Act 1989 sections 17 and 47 in relation to establishing
whether a child is in need of services and a duty to step in if
the child is at risk of significant harm.
Section 10 of the Children Act 2004 obliges
the local authority to co-operate with statutory partners to improve
wellbeing of children in the area.
Question 2: Do you agree that a register should
be kept?
Selection: Not sure.
Comments: We have answered "not sure"
because the question is ill-conceived and cannot be answered in
the context of the Badman Report. Is this a question about the
principle of voluntary registration, of compulsory registration,
or of the specific licence-to-home-educate registration scheme
proposed by Graham Badman and the DCSF? We are implacably opposed
to the compulsory registration scheme proposed by Graham Badman.
In the few areas where the local authority has been able to offer
access to services and non-judgemental support to home educating
families there has been an increase in the take-up of voluntary
registration and a far more positive working partnership between
home educators and the local authority.
We should like to query the term "register"
rather than "database." These proposals would create
the offence of having an unregistered child. We are not clear
whether the parents or guardians of a child entering the country
for a holiday would have to register the child as home educated,
since the proposals refer to residence but a timeframe is not
defined. Nor is it clear how asylum seekers between the ages of
five and 16 or children of no fixed abode might be brought
into the scope of the proposed registration scheme. We would also
have grave concerns about registration and disclosure for the
children in families where there has been domestic violence since
there has been no guidance or reassurance about shielding.
The proposals appear to be incompatible with
recent statutory guidance on Children Missing Education which
directs local authorities to follow procedures set out in the
Government's Elective Home Education Guidelines. The complexities
of a compulsory registration scheme create the potential for legal
challenge.
On a technical point, there are security issues
with locally administered databases which may not conform to a
central agreed standard. All the security, data protection and
data cleansing issues raised by ContactPoint are equally applicable
to home education databases.
Question 3: Do you agree with the information
to be provided for registration?
Selection: No.
Comments: Education Otherwise does not support
compulsory registration or conditional registration. We therefore
object to all the information outlined in the proposal for compulsory
registration.
We take particular issue with the statement
of educational approach and the requirement to produce a 12 month
plan as a condition of registration. We believe that this proposal
was conceived in haste and we understand that Graham Badman's
Expert Reference Group had serious reservations.
Registration and monitoring as specified in
the Badman Report would be extremely costly. There has still been
no Impact Assessment for the Government's proposals. In particular
there has not been a Race Impact Assessment or Disability Impact
Assessment or Equality Impact Assessment.
The Review did not adequately assess the benefits
of voluntary engagement nor the corresponding danger that families
will disengage if forced into an adversarial relationship with
their local authority. We have also addressed this issue in our
answer to the first question of this submission and in our oral
evidence to the Select Committee on 14 October.
A lack of engagement with the authority is not
an indicator that there are difficulties, that the family is isolated
or that there should be concerns for the children.
Question 4: Do you agree that home educating
parents should be required to keep the register up to date?
Selection: No.
Comment: It is not possible to keep such a register
up to date and the question betrays a lack of understanding of
home education. The place of education may change from day to
day and the educational approach may of necessity and principle
diverge from the statement contained in the 12 month plan.
Under the Government's proposals parents would be committing a
criminal offence if they failed to supply any part of this information
to the authorities at the earliest possible opportunity in order
not to break the law.
The proposals are in conflict with recent statutory
guidance on Children Missing Education which directs local authorities
to follow procedures set out in the Government's Elective Home
Education Guidelines. The complexities of a compulsory registration
scheme create the potential for legal challenge.
In the few areas where the local authority has
been able to offer access to services and non-judgemental support
to home educating families there has been an increase in the take-up
of voluntary registration and a far more positive working partnership
between home educators and the local authority.
Question 5: Do you agree that it should be
a criminal offence to fail to register or to provide inadequate
or false information?
Selection: No.
Comment: We would strongly oppose any move to
impose a criminal record on parents and we feel that the question
is offensive.
Would local authorities be liable in law for
failing to keep a comprehensive register and how might this be
determined or enforced?
It is difficult to imagine the legal input to
the Department in drafting this question since "inadequate
information" is an impossibly subjective criterion for prosecution.
It is simply not possible to keep such a register
up to date and the question betrays a lack of understanding of
home education. The place of education may change from day to
day and the educational approach may of necessity and principle
diverge from the statement contained in the 12 month plan.
Home educators are not the only people to object
to this proposal. Select Committee witnesses from the National
Children's Bureau and the Association of Directors of Children's
Services stated on 14 October that the case had not been
made for criminalising parents and that other options were preferable.
How is it envisaged that the Government might
enforce registration especially for highly mobile families?
It makes little sense to legislate for increased
intervention in the area of home education and to appear to promise
a menu of support to home educating families, without first assessing
the cost of implementing these proposals. The Government is clearly
not able to do this until the total number of home educated children
is known. Therefore it is not logical to proceed to legislation
in the absence of any reliable data.
There has still been no Impact Assessment for
the Government's proposals. In particular there has not been a
Race Impact Assessment or Disability Impact Assessment or Equality
Impact Assessment.
This proposal should be withdrawn.
Question 6 a): Do you agree that home
educated children should stay on the roll of their former school
for 20 days after parents notify that they intend to home
educate?
Selection: No.
Comment: This will cause undue stress to families
as the school puts pressure on the child to attend school during
this period in order not to prejudice Ofsted-rated attendance
targets, particularly persistent absence figures. The proposal
undermines children's rights and is damaging to the welfare of
the child.
Schools will seek to persuade parents not to
take children off the school roll and to remain as pupils. Local
authority officials will become involved in discussions over whether
the parent is capable of producing a detailed 12 month plan
at this stressful time. The potential for conflict and legal challenge
is considerable.
This proposal is also in conflict with section
7 of the 1996 Education Act and with recent statutory
guidance on s.436A of the Act and with the 2006 Pupil Registration
Regulations.
This proposal is ill-conceived and should be
withdrawn.
Question 6 b): Do you agree that the
school should provide the local authority with achievement and
future attainment data?
Selection: No.
Comment: The case has not been made. We are
unable to see why this is necessary or desirable. Schools do not
routinely provide home educating parents with this information.
It is not proposed that consent be sought from the parent or from
the child. The reason for taking this information could only be
to judge the parent's educational provision against school standards
and projected school attainment targets.
We have feedback from members indicating that
in some cases schools under-estimate a child's ability and future
attainment, stating that the child will never be academically
successful, that the parent is deluded or biased to think otherwise.
In other cases, members have been routinely
misinformed by schools about the child's actual level of attainment
and understanding based on the curriculum material covered in
class which may not have been understood or assimilated by the
child, necessitating a great deal of one to one remedial work
at home once the child has been removed from the state system.
Moreover, the parent may not wish to adopt school-based
values and a school-type curriculum but would come under pressure
from the local authority to base the home education on the framework
set out by the school. We already see this in many cases where
the local authority interprets the statement of special educational
needs as imposing a requirement on the parent to deliver a particular
form of education or to reach specific attainment targets.
Question 7: Do you agree that DCSF should
take powers to issue statutory guidance in relation to the registration
and monitoring of home education?
Selection: No.
Comment: The Government should not take powers
to issue statutory guidance on registration and monitoring. This
is the wrong question about statutory guidance. We should have
been asked for our views on statutory guidance regulating the
rights and responsibilities of the parent and the local authority
which was the focus of the Government non statutory Guidelines
in 2007.
http://www.dcsf.gov.uk/everychildmatters/publications/elective/
The Badman Review did not seek comprehensive
reliable information about local authority practice and procedure.
Education Otherwise has begun much-needed research in this area.
Philip Noyes giving evidence on behalf of the NSPCC to the Select
Committee on 14 October noted that the Badman Report was
lacking in this respect.
The 2007 Government guidelines on home
education were published after wide consultation and deliberation.
The problem is that these non-statutory Guidelines were not publicised
by the Government. Many local authorities either remained unaware
of their existence or treated them as merely advisory since they
were not statutory.
In oral evidence to the Select Committee on
14 October there was some discussion of what constituted
suitable education and the local authority witness suggested that
in home education there should be the consistent involvement of
parents or other significant carers; recognition of the child's
needs, attitudes and aspirations and opportunities for the child
to be stimulated by their learning experiences.
These proposals are of course already contained
in the Government Guidelines at paragraph 3.15 further demonstrating
that there is no need to reinvent the wheel.
http://www.dcsf.gov.uk/everychildmatters/publications/elective/
The Review did not have sufficient time to investigate
models of good practice nor did the Department for Children Schools
and Families consider pilot studies. Much more work needs to be
done in this area.
There can clearly be no headlong rush to legislation
as there is no Impact Assessment for the Government's proposals.
In particular there has not been a Race Impact Assessment or Disability
Impact Assessment or Equality Impact Assessment.
Question 8: Do you agree that children about
whom there are substantial safeguarding concerns should not be
home educated?
Selection: Not sure.
Comment: We have answered "not sure"
since a yes/no answer is not applicable to this question and the
subject demands further consideration. Recommendation 23-24 of
the Badman Report propose that any "concerns" not otherwise
specified could also be grounds for refusing home education registration.
This is prejudicial to any meaningful discussion of question 8 and
recommendations 23 and 24 should be withdrawn and redrafted.
The current proposals are open to legal challenge.
If the child is considered to be at risk of
significant harm there is legislation and guidance in place via
section 47 of the 1989 Children Act and Working Together
to Safeguard Children which sets out procedures to be followed.
The mode of education is irrelevant. A child is either safe with
the parent or not safe, yet this proposal would create a third
category of child who is "safe to go to school."
Members tell us that where the child has special
educational needs the school or local authority often raises "safeguarding
concerns" as an obstacle to the family's home education,
in some cases leading to a section 47 referral which remains
on the family's record. The value and legality of home education
is not adequately understood.
Children and families may be known to social
care services for a variety of reasons. In some cases the child
may be in need of services and therefore the family has approached
social services or health services. This take-up of services is
surely to be encouraged and not to be adduced as evidence that
the educational provision made for tens of thousands of other
children is in urgent need of inspection.
Question 9: Do you agree that the local authority
should visit the premises where home education is taking place
provided two weeks notice is given?
Selection: No.
Comments: The Badman Report conflates education,
welfare, child protection and safeguarding. No justification has
been given for imposing a duty to visit the home and question
children without the parent present. The proposal is operating
on the assumption that any and every child could be at risk and
is a wholly disproportionate response to a minority of cases.
The proposals also burden the local authority with additional
liability in law in cases where the official has signed off the
family and reported that there is no cause for concern.
It is illogical that the local authority should
only visit the homes of children who are educated at home and
not the homes of all children. Children spend more time at home
than they do at school and are of course based at home for relatively
long periods during the summer holidays, where the parent may
be working away from home.
There appear to be a number of conflicting reasons
for home visits and interviews with children: a safe and well
check by observing the child, ensuring that the child is receiving
suitable education and verifying that the child is able to answer
questions about academic work undertaken during the year.
It also appears to be envisaged that the home
interview would give the child an opportunity to disclose abuse
to a trusted and familiar adult. A moment's thought should reveal
how unlikely this would be.
These objectives are mutually incompatible.
A mass home visit scheme for 80,000+ home educated
children would be astronomically expensive and would represent
an extraordinary priority for the Government when there is still
no funding for support or services to home educating families.
There has been no Impact Assessment for the Government's proposals.
In particular there has not been a Race Impact Assessment or Disability
Impact Assessment or Equality Impact Assessment.
Question 10: Do you agree that the local authority
should have the power to interview the child, alone if this is
judged appropriate, or if not in the presence of a trusted person
who is not the parent/carer?
Selection: No.
Comments: The proposals to interview and question
children in their home without a parent present have met with
widespread and determined opposition and are unworkable.
The civil rights organisation Liberty has stated:
"Any power of access to the home must be tightly regulated
and a full explanation as to the power's necessity should be given."
There appear to be a number of conflicting reasons
for home visits and interviews with children: a safe and well
check by observing the child, ensuring that the child is receiving
suitable education and verifying that the child is able to answer
questions about academic work undertaken during the year.
It also appears to be envisaged that the home
interview would give the child an opportunity to disclose abuse
to a trusted and familiar adult. We believe that these proposals
lack clarity and that these objectives are counter-productive
and mutually incompatible.
Should this proposal be implemented, we predict
a barrage of complaints throughout the country, escalating through
local council complaints procedure to Ombudsman level. Many home
educating families have already been to talk to their MP and hundreds
of home educating families visited Parliament on 13 October
to raise awareness of this issue.
There is absolutely no information about the
procedure if the child does not want to be questioned without
a parent present and it was this very question which Graham Badman
said he most dreaded in evidence to the Select Committee on 12 October.
This proposal is causing a huge amount of concern,
anger, distress and outrage. For children who have been bullied
at school the home is a place of sanctuary and safety. The Badman
Report does not address the issue of recommended procedure and
the rights of the child if the child refuses to be interviewed.
The proposal is open to legal challenge.
For safeguarding reasons we believe that many
parents would not be prepared to allow children to be alone with
an unknown adult in a position of power and authority. The child
seems to be viewed both as a witness against the parent and also
as evidence for the efficacy or otherwise of the parent's educational
provision. A third view of the child is as potential abuse victim
in all cases until proved otherwise. This is an extraordinary
way to segregate and objectify children while allegedly promoting
the child's right to be heard. Meanwhile parents are viewed with
suspicion and mistrust, being characterised as likely to mislead
or deceive the authorities or as being the last people who might
know what their child actually needs.
Graham Badman does not want the parent present
as an advocate for the child. Nevertheless the child needs an
advocate chosen or approved by the parent and the child. An independent
advocate is also necessary for the professional reputation of
the local authority officer who should never see the child alone.
We note that there has been no Impact Assessment
for this proposal.
Question 11: Do you agree that the local authority
should visit the premises and interview the child within four
weeks of home education starting, after 6 months has elapsed,
at the anniversary of home education starting, and thereafter
at least on an annual basis? This would not preclude more frequent
monitoring if the local authority thought that was necessary.
Selection: No.
Comment: The proposals to interview and question
children in their home without a parent present have met with
widespread and determined opposition and are unworkable. There
is absolutely no information about the procedure if the child
does not want to be questioned without a parent present and it
was this very question which Graham Badman said he most dreaded
in evidence to the Select Committee on 12 October.
The civil rights organisation Liberty has stated:
"Any power of access to the home must
be tightly regulated and a full explanation as to the power's
necessity should be given."
A mass home visit scheme for 80,000+ home educated
children would be astronomically expensive and would represent
an extraordinary priority for the Government when there is still
no funding for support or services to home educating families.
There has been no Impact Assessment for the Government's proposals.
In particular there has not been a Race Impact Assessment or Disability
Impact Assessment or Equality Impact Assessment.
There appear to be a number of conflicting reasons
for home visits and interviews with children: a safe and well
check by observing the child, ensuring that the child is receiving
suitable education and verifying that the child is able to answer
questions about academic work undertaken during the year.
It also appears to be envisaged that the home
interview would give the child an opportunity to disclose abuse
to a trusted and familiar adult.
Since February 2007 the local authority
already has a duty via s.436A of the Education Act 1996 to
make arrangements to identify children missing education. Paragraph
87 of the statutory guidance on Children Missing Education
states that:
"local authorities should make inquiries
with parents educating children at home about the educational
provision being made for them. The procedures to be followed with
respect to such investigations are set out in the EHE Guidelines,
2.7-2.11 and 3.4-3.6."
Section 437 of the Education Act 1996 requires
the local authority to seek information from parents if it appears
that a child is not receiving education. Ultimately if the local
authority is not satisfied, it has a duty to serve a School Attendance
Order.
The authority has further duties via the Children
Act 1989 sections 17 and 47 in relation to establishing
whether a child is in need of services and a duty to step in if
the child is at risk of significant harm.
Section 10 of the Children Act 2004 obliges
the local authority to co-operate with statutory partners to improve
wellbeing of children in the area.
The present powers are sufficient but poorly
understood and the Department has not taken a lead in promoting
the 2007 Guidelines.
Education Otherwise recommends that the Government
should take powers to put the 2007 guidelines on a statutory
basis.
http://www.dcsf.gov.uk/everychildmatters/publications/elective/
October 2009
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