Education Committee Call for Evidence – Stand your Ground!

Inquiry is an open door to tell MPs how much schools, the Department for Education and their own Committee have failed home educated children and their families!

Previous Bytes in response to this Call for Evidence:

• Education Committee Call for Evidence – Elective Home Education 4 Oct
• Education Committee Call for Evidence – Accentuate the Positives 12 Oct
• Education Committee Call for Evidence – Grasp the Opportunity 14 Oct

What’s been said?

This fourth look at the Education Committee’s Inquiry into home education considers the areas of evidence which, no doubt rightly, vex HE families the most. In our reordering of the points listed by the Committee, we have grouped these together as follows:

5    whether the current regulatory framework is sufficient to ensure that the wellbeing and academic achievement of home educated children is safeguarded, including where they may attend unregistered schools, have been formally excluded from school, or have been subject to ‘off-rolling’;

1    The duties of local authorities with regards to home education, including safeguarding and assuring the quality of home education;

2    whether a statutory register of home-educated children is required;

6    the role that inspection should play in future regulation of home education;

These points are based on a perceived mismatch between two areas of legislation. Firstly there is education law, which places responsibility for every child’s education primarily upon their parents. Then there are acts concerning welfare, or as it is now referred to, safeguarding, which have become the rallying ground of those seeking to enforce registration and monitoring on EHE families.

Those who champion state oversight do so on the grounds that a Local Authority has a safeguarding duty placed on it for every child resident in their area. This regardless of whether or not any child is placed temporarily (i.e. during school hours) or long-term in the care of the state. This approach entered the UK public arena in 2009 when then Secretary of State, Ed Balls asked Graham Badman to carry out a review of HE.

Why does it matter?

It is very important that the HE community across Britain understands the differences between these two areas of legislation, and why safeguarding is the chosen battleground by those who seek to impose registration and monitoring on families. Space constraints preclude a discussion of the underlying ideology behind their vision of the future, but it is important to recognise that should they succeed, the word “elective” before “home education” will be replaced by “licensed.”

If introduced, registration and monitoring will in time result in the criteria for HE being steadily altered until there will be little difference between the education a child is allowed to receive at home and the one which is served up in schools. When that happens, the educational freedom of parents will have been expunged by stealth.

This Call for Evidence, unwelcome as it is, provides a much better opportunity than so-called “consultations” for EHE families to make clear that we will fight tooth and nail to prevent that from happening!

Education law is clear that naturally and historically, responsibility for education rests with a child’s parents. This is a point well made by the Education Committee’s 2012 report “Support for Home Education” cited in the documentation for this Inquiry. (If you have time to read its findings, we encourage you to do so and keep referring to it where relevant in your submission.) It is worth quoting the first paragraph in Section 2 in full, “Relationships between home educators and local authorities.”

“10. The role of the local authority is clear with regard to home education. They have two duties: to provide support for home educating families (at a level decided by local authorities themselves), and if families wish it; and to intervene with families if the local authority is given reason to believe that a child is not receiving a suitable education. It is not the role of the local authority routinely to monitor whether a suitable education is being provided, and local authorities should not act as if it is, or cause parents to believe that it is.”

Whilst departmental guidance has changed since 2012, legislation has not. When responding to the four points above, it is essential to emphasise that the legal basis for HE remains the same today as it was then.

Current Guidance for LAs is available here and whilst this cannot be discussed in depth now, when it was published in April last year we commented:

“The change in emphasis is mainly focussed on the safeguarding duties of LAs, which are discussed at length in Section 7, rather than on the education a child is receiving.” [Emphasis original]

We encourage you to read that Byte if you need to understand these changes better.

It is also helpful at this point to consider a three page letter from the former Under Secretary of State for Schools, Lord Adonis, sent in 2006 to Lord Judd. Judd was proposing an amendment to a Bill which would “introduce a simple statutory ‘right to education'” for every child. Adonis rejected this amendment after the Department’s “officials and lawyers” persuaded both him and the Secretary of State that any such change would bring about “legal uncertainty.”

Adonis described the “fourfold foundation” of British education legislation. Its first principle, the primary place of parental responsibility, is emphasised by a citation from a court ruling earlier that year. In the judgement concerning Ali v Lord Grey School [2006] UKHL 14, Lord Bingham stated:

“This fourfold foundation has endured over a long period because it has, I think, certain inherent strengths. First, it recognises that the party with the keenest personal interest in securing the best available education for a child ordinarily is, or ought to be, the parent of the child…” [§16]

Importantly, Adonis later argued for English law to maintain the negative emphasis of the Human Rights Act 1998, “no one shall be denied the right to education,” on the basis that Judd’s proposal for a positive right to education might impose, “an obligation on local authorities to ensure that children could receive education of a particular type or standard which the authorities were unable to provide…”

We have recently referenced the shift to justify registration and monitoring – i.e. licensing – of HE in terms of a positive right to education (Isle of Man: 10 Sep. & Wales: 1 Oct.). It is increasingly clear that it is this presumed positive right to education, a right which does not exist in English or Welsh law, which is being appealed to by the claim that the state has a responsibility to proactively “safeguard” every child.

It will therefore be helpful, based on the Adonis letter, to remind the Education Committee that any standard set for a “safe” and suitable education to be provided for every EHE child would have to be the standard supplied to every school child in the country! If any LA failed to ensure such an education for just one child, then it would be impossible to justly impose that standard upon HE families.

It is important to challenge the two direct references to safeguarding in points 1 & 5 listed above. You can find two articles in our Library which will help you to gather your thoughts in this respect. These are, “The rise of the safeguarding industry” and “Child of the parent or child of the state?” This Byte from August 2018 will also be helpful, along with the longer article upon which it is based.

One final aspect from the areas of evidence requested which must be addressed is the conflation of illegal practices and institutional failures with EHE. The Committee needs to hear that elective home education does not include children who have been abandoned by schools either by off-rolling, exclusion or by being moved into “Alternative Provision” – though many children benefit from an atmosphere which is nearer to true HE provided by some AP settings. Neither does EHE include children who have been deregistered by parents to enable them to spend significant amounts of time in illegal, unregistered schools.

Please consider politely but firmly challenging Committee members about the practice of bundling non-elective and illegal practices under the catch-all title of “home education.” Politicians need clarity in their own minds that illegal education is not elective home education. Neither are coerced education, abandoned education nor state-funded out of school education. This statement is as true for all the above alternatives as it is for emergency pandemic schooling at home.

What can I do?

The four areas of evidence covered in this Byte are the ones which will require most careful thought for many HE families. They are however those which need very firm rebuttal. You don’t have to be a legal expert to say that the current hostile environment to EHE is contrary to law.

If you would like further inspiration around legal issues, you will find it helpful to read and perhaps refer to the legal opinion by David Wolfe QC on the 2019 Welsh Consultation on revised guidance. This was crowd-funded and submitted as part of their response (p.10-14) by Protecting Home Education Wales.

Please keep talking to other HE families about this Call for Evidence and encourage them to respond. Share this and our other posts (see above) with them. By now there are less than three weeks for submissions to be sent to the Committee – instructions how to do this are here.

Be determined not to let this opportunity pass you by. Speak out clearly and boldly for parental responsibilities. Make your points firmly and forcibly, but please remember that ranting will do more harm than good.

Politicians need to know that EHE families will do all it takes to protect their children’s futures!