Legislative Scrutiny: Children, Schools and Families Bill; other Bills

Legislative Scrutiny: Children, Schools and Families Bill; other Bills - Human Rights Joint Committee Contents

Letter from Scott Trueman, Senior Lawyer, Legal Adviser's Office, Department for Children, Schools and Familes to Murray Hunt, Legal Adviser, Joint Committee on Human Rights, dated 15 January 2010

CHILDREN, SCHOOLS AND FAMILIES BILL

Many thanks to you and Chloe for taking the time to come to the Department to see us just prior to Christmas and for setting out some of the issues on which you thought the Committee would be interested in having further detail. It was very helpful to have these thoughts and we are happy to try and set out our thinking more fully for you in response. I apologise for the short delay in getting this to you.

As you can appreciate, it has been somewhat difficult over the festive period to contact all of the officials with whom we needed to speak to finalise our response, and in one or two cases we do need further discussion with colleagues before we can respond fully.

However, in the interests of being able to provide what details we could in advance of any meeting of the Committee, so as to be as helpful as possible, I set out in this letter such responses as we are able to give at this point.

PUPIL AND PARENT GUARANTEES

You raised questions about the extent to which the new proposed guarantees might contribute to fulfilment of the UK's obligations under the International Covenant on Economic, Social and Cultural Rights (ICESCR) and relate to the Committee's own reports on Economic and Social Rights more generally. The Department is, of course, aware of the Committee's report on the ICESCR in October 2004[18] and of its subsequent consideration of economic and social rights in the context of a proposed Bill of Rights in its 29th Report of the 2007-8 session.[19] The Committee will be familiar already with the Government's response to this latter report, contained in the Memorandum from the Minister of State at the Ministry of Justice, Mr Michael Wills MP.

We have considered these questions in the light of the JCHR's 29th Report and the argument it makes that a Bill of Rights should include economic and social rights—in particular the two rights in relation to education that:

— everyone of compulsory school age has the right to receive free, full-time education suitable to their needs; and

— everyone has the right to have access to further education and to vocational and continuing training.

Subsequent to this report, our colleagues in the Ministry of Justice have published a Green Paper on precisely this issue. This Green Paper Rights and Responsibilities: developing our constitutional framework[20] suggested ways in which such entitlements might be given constitutional recognition in a Bill of Rights and Responsibilities, and we do not wish to pre-empt the results of the consultation process.

The creation of the Pupil and Parent Guarantees is an example of the way the Government promotes social and economic rights across a range of public services. As with entitlements to healthcare, for example, these are not generally referred to as rights, since they are not generally justiciable in the way in which rights under the ECHR can be enforced by litigation taken by or on behalf of individuals against public authorities (though some of these specific guarantees will be). The Guarantees don't on their own represent a constitutional right to education and, as with similar provisions in the Child Poverty Bill and areas of health policy, they pursues more specific policy goals rather than fulfilling an overarching, constitutional purpose.

HOME-SCHOOL AGREEMENTS

You asked too about the relationship between home-school agreements (HSAs) and school attendance, parenting orders and prosecutions for non-attendance. The short answer is that although parenting contracts and orders under the regime in the Anti-social Behaviour Act 2003 will make further references to the existence of HSAs, there is no direct legal link between these and the school attendance regime under the Education Act 1996. Broadly speaking, the HSA is intended to deal with a range of issues including, but not limited to, behaviour and parental support for learning and it concerns attendance (truancy) to only a limited extent. The school attendance regime (and prosecutions for breaches) is focused only on the attendance of pupils at school. We would expect a home-school agreement to support, but not be the main driver of, a school's attempts to improve the attendance of a child.

A parenting contract (but not an order), in the case of a pupil's truancy, will automatically include references to the HSA and in particular to the parent agreeing to discharge their responsibilities under the agreement. However, as the Department noted in its original submission to the Committee, parenting contracts are voluntary arrangements entered into by parents with schools and there is no element of compulsion involved which could engage Article 8. Likewise, parents are not obliged to sign an HSA, and will not suffer any direct adverse consequences as a result of failing to sign—so Article 8 is not engaged by the mere existence of HSAs either.

The school attendance regime is not intended to 'enforce' HSAs and overlaps in content with only one aspect of the HSA—ensuring that a child attends school. As noted, though, no relevant amendments to the provisions in s. 437 et seq. of the Education Act 1996 are made by the Bill and no formal interaction is intended. Clearly, in guidance that will be consulted on in February the Department will set out that it considers that the interrelationship of HSAs and school attendance orders is that the home-school agreement will be one mechanism through which schools draw attendance to the attention of all parents initially and which they can use to agree actions with particular parents if the need arises. More formal action on attendance will continue to be taken through the mechanism of contracts and orders for attendance.

PERSONAL, SOCIAL, HEALTH AND ECONOMIC (PSHE) EDUCATION

In relation to this aspect of the Bill, you asked three particular questions:

Gillick

(2) Why is requiring schools to assess pupil competence too administratively burdensome if the numbers withdrawing are so small? Can we identify what proportion of pupils withdrawn are girls? Are they disproportionately affected?

(3) How will these new requirements work for faith schools? Will a version of the guidance be available for the committee to see as the Bill passes?

As we indicated in the original submission to the Committee, the present law, contained in s. 405 Education Act 1996, which potentially leaves a right of withdrawal from sex education to parents in respect of their children until their child's 19th birthday is unsustainable and the Department was clear that this age had to be reduced. The Department also accepts, of course, that in considering this issue the rights of both parents and children are in play, and that it is necessary to achieve an acceptable balance. The Department is also mindful as well, that there are a wide range of sincerely held beliefs in the country as to where the balance between the respective rights of each should be struck.

The Department accepts that the rights of parents and pupils under Article 8 and Article 2 of the First Protocol are potentially engaged. Although there is unlikely to be any conflict between the Article 8 rights of parents and pupils when the child is still young, the Department accepts in principle that there comes a point at which the rights of children of sufficient maturity and understanding would be potentially infringed by the continued existence of a parental right to withdraw them from lessons and that the parental right should cease, so far as possible, before that point.

The Department is of course, conscious that the rights of children themselves must be of paramount concern. Although you raised the issue of Gillick capacity and suggested that the point should be drawn by reference to this criterion, the Department does not accept that such a point is, in practice, particularly workable. Whereas it is no doubt convenient and straight-forward for a GP or other medical practitioner to assess the competence of a young patient, and take appropriate action on that assessment, the Department does not consider that schools and teachers will want, or should be given, the responsibility of making such decisions in respect of their pupils. Such a responsibility would also open the school up to what the Department considers to be a significant litigation risk from parents who did not accept the school's assessment of a child's competence, and the Department cannot see that it would be in anyone's interests for there to be such uncertainty, or such risk.

We are mindful that the European court has held on a number of occasions that the State can adopt practical solutions to cases of difficulty. On that basis, we consider that the Bill need not require individualised assessments of capacity, and may adopt instead a broader view of an age at which a child's views should prevail over that of their parents.[22] That being the case, the Department considers that setting the statutory age for parental withdrawal to terminate at a child's 15th birthday is a significant and progressive step towards according mature pupils more rights, and for the, to date, small numbers who have been withdrawn by their parents, ensures even the youngest in the an academic year a minimum of one year's sex and relationships (SRE) education before they reach the age of consent.

We consider that such a provision accords primacy to the rights of more mature children in a way which satisfies the Article 8 rights of all parties.

We also consider that it ensures that all pupils have access to some SRE as part of their PSHE studies, whilst ensuring that the views and wishes of parents of younger children are also accorded respect. The Department considers that it therefore satisfies the requirements of Article 2 of the First Protocol for both pupils and parents and does so by reference to a straight-forward and practical criterion (age) for the small numbers concerned.

With reference to the issue of medical treatment and any possible disparity that may arise, the Department takes the view that very different considerations may arise when considering medical treatment for a young person (which may be urgent and essential for their continued health and well-being) and considering access to a statutory curriculum which provides some information and education about long-term health, but which may have no immediate relevance to the individual. The personalised nature of medical consultation and treatment may make it eminently practical, and reasonable, for a child to have early access to information and treatment if needed for that individual. In any event, all competent children will, under these proposals, receive essential SRE education, information, advice and guidance before their sixteenth birthday, whatever the views of their parents may be. Some limited disparity appears inevitable between the two when one is decided by reference to Gillick competence, and the other by reference to age. However, the Department has indicated above why it has taken that decision, and that it considers it justifiable. On that basis, any limited disparity would also be justifiable on the same grounds.

In our meeting you mentioned the figure for parental withdrawal, quote by OFSTED,[23] of 0.04% (about four in every 10,000 pupils) and we agreed that this was also our best estimate for the numbers of pupils who are currently withdrawn from SRE. OFSTED identified 40 LEAs to represent a national sample. All these LEAs were asked to take part in a survey. As an incentive to take part they were promised a full analysis of their data with national data so they could make comparisons. Each LEA was sent 50 forms for them to distribute to their schools. They collected the forms and forwarded them to OFSTED for analysis. Return rates were very good: never less than 50%. The survey asked a range of questions including details of how and when SRE was taught, who taught it, the number of pupils withdrawn, etc. The data showed a consistent picture across the country with small numbers of parents withdrawing their children from SRE.

The OFSTED report does not contain any gender breakdown, and we understand from OFSTED that the local authority figures upon which they based this estimate also did not contain any gender divisions. At present, therefore we cannot say which sex is more affected by the right of withdrawal or what those percentages might be. We have asked OFSTED to look again at any underlying statistics they may have, and if we receive any further useful information on this we will communicate it to you.

Although we agree that the figure of 0.04% is a very low number, the fact is that it would not be valid to extrapolate from this and assume this to be the same as the numbers that would withdraw from the proposed statutory SRE curriculum in PSHE. The figures are, in any event, merely a best estimate. Even if accurate, parents may not presently feel so inclined to withdraw their children from an SRE programme which is non-statutory and the content of which is determined solely by the school in consultation with parents. If these proposals are implemented it is possible though by no means clear, that these figures could rise. Even just a few cases each year could cause a school significant inconvenience, concern and risk.

In relation to faith schools, as I mentioned in the meeting, clause 11 inserts a new section 85B into the Education Act 2002, to provide for PSHE and the principles which apply to the way it is taught. The 'second principle' contained in section 85B(6)(a) would permit PSHE to be taught in a way that is 'appropriate to the ages of the pupils concerned and to their religious and cultural backgrounds…'. The Department intends that this is wide enough to cover the 'ethos' of a school, without compromising the other principles. There is no direct cross-over with the Equality Bill currently before Parliament, and indeed clause 89(2) of that Bill (largely replicating provisions of the Equality Act 2006) specifically excluded the content of the curriculum from the ambit of the provisions on schools in that Bill.

LICENCE TO PRACTICE

You indicated that you thought the Committee were likely to want further details in relation to the proposed licensing scheme for teachers. Although we accept that there is less detail here than there is in relation to the home-education provisions, the home education registration and monitoring scheme is only intended to be a basic, light-touch scheme in a previously unregulated field. On the other hand, we expect that the licensing scheme will mature and evolve as time passes, in what is already a complex area with a large number of variables. We therefore need to retain the flexibility to deal with this through regulations and to set out the details otherwise than in primary legislation. It is the Department's intention to set out in policy statements at the time of the Bill reaching Committee what our intentions are for the regulatory system, and these will include the grounds for refusing or withdrawing licences.

We will also revert to you at that stage on the remaining queries you raised at our meeting.

HOME EDUCATION

What follows here is largely taken from the ECHR memorandum, with some additional explanation when required. As noted briefly in the Department's original submission, home education is lawful[24] and largely unregulated at present. Parents may decide to home-educate from an early age. Where a child has never attended school, parents are not required to inform the local authority or seek approval from it. This is also the case when a child is moving from a nursery to a primary, or primary to secondary school. If a home-educated child is known to one local authority but moves to another area, there is no obligation on the parent to inform either local authority. Local authorities consequently have no clear idea of exactly how many children in their area are being home-educated. The best current estimate by the Department is that there are 20,000 to 80,000 home-educated children in England.

The proposals for a registration and monitoring scheme for home-educated children, will enable local authorities for the first time to identify all home-educated children, ensure that they are receiving a suitable education and are safe and well. The scheme will thereby enhance protection of childrens' rights not to be denied an education in accordance with Article 2 of the First Protocol (right not to be denied education and for respect for parental religious and philosophical convictions). Monitoring and registration will also enable local authorities to provide better access for these children to facilities that enrich their experience of education, including school libraries, sports facilities and music lessons. Home educators also tell the Department that they want more tailored support for children with special educational needs and we will be looking at how this can be achieved as we take forward our work on the recommendations from Brian Lamb's review of SEN provision.

The Department therefore accepts that a registration and monitoring scheme will engage Article 2 of the First Protocol and Article 8 ECHR (private and family life) but contends that it will be compatible with them provided that the scheme is operated in a way that is subject to clear and accessible rules; such that any controls or restrictions are operated in a proportionate manner for the purposes of ensuring the education or welfare of the child; and contains sufficient procedural safeguards.

You raised two particular issues in this context: the extent to which this system enhances the rights of the child who is being home-educated and the grounds on which the power to revoke or refuse registration would be exercised. You also asked about the composition of any independent appeals panel.

The paramount consideration under Article 2 of the First Protocol is the child's fundamental right not to be denied education. The ECHR does not provide an absolute right for parents to home-educate their children in accordance with their own wishes. The cases of Family H v UK[25] and Leuffen v Germany[26] make it clear that a State may prevent a parent from home-educating where it reasonably considers that home education would be contrary to the child's wider educational interests. In Konrad v Germany[27] compulsory attendance at primary school (thereby denying any possibility of home education at all) was held justifiable where the state had carefully reasoned its decision and had good reasons for requiring school attendance. It was accepted by the Court that not only the acquisition of knowledge but also integration into and first experiences of society were important goals in primary education. Other registration schemes similar to that proposed in schedule 1 of the present Bill have been found compatible with Article 2 of the First Protocol.[28]

The Department considers therefore that requiring registration and monitoring of home education enhances children's rights under Article 2 of the First Protocol, by providing for a consistent method of ensuring all children have access to a suitable education. Secondly, the light-touch regulation scheme presently proposed reflects due respect for the philosophical convictions of parents who wish to educate their children themselves at home, where those convictions do not interfere with a child receiving a suitable education. It should be noted that there is already an existing duty on parents to ensure that their child receives a suitable education[29]—so there is nothing new, or additional, in this last requirement. The Department will be publishing, before or at Committee, a policy statement about its intentions with respect to the regulations. It will take the opportunity to also set out the Department's current understanding of what constitutes a 'suitable' education, and I say more about that below.

In setting out the requirements of registration and monitoring, a child's own wishes and feelings will, as you have identified, often be relevant. At new section 19E of the 1996 Act (to be inserted by Schedule 1 of the Bill), the purposes of monitoring are set out—and local authorities will be under a duty to ascertain as part of this process, so far as is reasonably practicable, the wishes and feelings of home-educated children about their education and to ascertain whether it would be harmful to the child's welfare for home education to continue. This will ensure that, for the first time, a child's own views will be taken into account. Authorities will be obliged to hold at least one meeting with the child each year (new section 19E(3)(a)), and, where appropriate, local authorities can also seek to interview a child alone (new section 19E(4)), if they deem it necessary (though there is no power to compel this if a parent or the child refuses).

Also of note is the requirement in new section 19F(4) for a local authority to give due consideration to a child's wishes and feelings when deciding whether to revoke registration on the grounds of possible harm to their welfare, or lack of suitability of the education. The Department anticipates that childrens' wishes and feelings will permeate the entire registration and monitoring scheme because of their clear relevance to the issues of welfare and suitability. For example, where a local authority has doubts about the suitability of education received but the child is very clear that they want to be educated at home, a local authority is likely initially to focus on offering support to the family with a view to improving the quality of learning.

The Department therefore maintains that the proposed system not only enhances childrens' rights under Article 2 of the First Protocol, but in doing so, also makes consultation with the child an important part of the process.

The Department accepts too that requiring parents to register home education clearly engages Article 8, but the Department considers that any interference with this right is necessary in the interests of the protection of health, and the protection of the rights of others, as the local authority will need to have accurate information to monitor the suitability of a child's home education and the child's welfare. The information required of parents at registration will be quite basic and include a statement of prescribed information about the prospective education. It will therefore be proportionate to the aim of monitoring such children.

Where a local authority refuses to register a child on their home education register or revokes registration, Article 8 is engaged. The new provisions will give an authority discretion to refuse to register a child only in specific circumstances. The Department intends to specify in regulations what matters should or should not be taken into account by local authorities in exercising the discretion to refuse registration, and any regulations will, themselves, have to be Article 8—compliant. As noted above, we will deal with this in outline in our policy statement.

There will also be various grounds for revocation of registration all of which will be on the face of the legislation. The Department also intends to use regulations to specify what matters should or should not be taken into account by local authorities in exercising the power to revoke.

The Department will set out a clear regulatory framework for relevant procedural steps for revocation or refusal of registration—such as notifying parents of specified matters, prescribed periods for responses, what evidence might be needed etc. In relation to grounds of refusal of registration/revocation there will be a proportionality balance that will need to be carried out by the local authority. It is, though entirely necessary and justifiable, to satisfy both Article 8 (and as stated, article 2 of the First Protocol) that there will be some circumstances when a local authority may wish to say that a child should not be home-educated.

As the Bill also provides for the monitoring of the scheme to include an annual meeting not only with the child, but also with the parent(s) and with any educator (if different), these provisions will also engage Article 8. Again, however, the Department regards these as an essential adjunct to the requirement to monitor suitability, and determining whether it would be harmful for the child's welfare for the home education to continue. Again, these are proportionate to the aim of protecting health and the rights of others.

The Department intends to commission work in the early part of this year aimed at defining more clearly what 'suitable' education is, and to include this into any statutory guidance. In commissioning the review, we have assured home educators that they will not be required to follow the National Curriculum or the Early years Foundation State nor take any tests or require their children to be entered for any public examinations. They will also not have to observe school hours, days or holidays. The review will build on existing case law which refers to preparing children for life primarily in their own community while not preventing them from pursuing a different form of life if that is what they choose, as adults. This means that home educators will continue to have a wide discretion to decide their own educational approach. The review will be asked to take into account the wide diversity of approaches that home educators currently take. It will also be asked to take into account the view of the Children, Schools and Families Select Committee which said that the definition of 'suitable' must enable local authority officers to tackle situations where it appears to the authority that a child has no prospect of gaining basic literacy and numeracy skills or where there is no breadth of education. Parents and local authorities are both required to make a judgement about the suitability of a child's education and the Department believes it is in the interests of both parties to have a shared understanding of what this is.

In relation to appeals against refusal or revocation of registration, you asked for some further thoughts on the constitution of the independent panel who will consider appeals against local authority decisions. As we indicated at the meeting, the appeal process will be set out in regulations and we intend at present that appeals be considered by a panel independent of the original decision maker. We intend to provide for an oral hearing, where appropriate, and for provision about representation for parents or children before the panel. We anticipate that local authority's exercising good practice will want to have a review process in place which parents can use initially before having to appeal and we will set out this expectation in guidance. Clearly, parents would also have the right to seek judicial review of any panel decision and, if they considered that there was maladministration, could complain to the local government ombudsman.

As we indicated to you in the meeting, and in the original memorandum, the Department does not consider that refusal or revocation of registration engages Article 6, as we do not accept that such a decision is determinative of a parent or child's civil rights. The decision only determines whether a child must attend school or whether they can be educated outside school. We also do not accept that such a decision would affect the reputation of the family either, even if welfare grounds were invoked, sufficient to engage Article 6. In R (B) - v - Alperton Community School[30] a similar argument that exclusion proceedings engaged the reputation of the family so as to amount to an infringement of Article 8 was rejected by the High Court because the proceedings before the Independent Appeal panel were not directly determinative of the pupil's reputation and the procedure followed recognised the risk of repututational damage in any event.

The Department accepts that the decision to refuse or revoke registration will engage Article 8 and will therefore require justification under Article 8(2); but the Department asserts that this is proportionate to the aim of ensuring both the health and safety of the child and that he or she is not being denied education. Monitoring and the light-touch regulatory provisions which accompany it (including ascertaining the wishes and feelings of the child themselves) is also justified and proportionate to make the registration scheme effective.

FAMILY COURTS PROVISIONS

We will also revert to you in relation to these at a later date.

CONCLUSION

I very much hope that these comments and further thoughts are helpful. We look forward to hearing from the committee and assisting with any further queries they may have.