Evidence or Hearsay

What’s been said?

On 13 April, V Colvin submitted a Freedom of Information Request [FoIR] to the Department for Education. In it Colvin quoted two statements from the third paragraph of the introduction to the new EHE Guidance for local authorities (p4):

“However, the past few years have seen a very significant increase in the number of children being educated at home, and there is considerable evidence that many of these children are not receiving a suitable education. There is a less well evidenced but increasing concern that some children educated at home may not be in safe environments.”

In summary, Colvin asked for the following information about the “considerable evidence” in regard to those said to be not receiving a suitable education:

  • names of the Authorities and Services which have provided this evidence;
  • what constitutes ‘considerable evidence’;
  • the number of children concerned.

Concerning children who “may not be in safe environments” they requested:

  • names of the Authorities and Services where these concerns have originated;
  • “the lesser volume of evidence” held by the DfE on these children.
  • the reasoning behind the DfE’s concerns “without increased evidence being available”.

On 25 April, Stephen Bishop, of the Independent Education and Boarding Team, responded to this request with the following statement, which is worth quoting in full:

“The information you requested is not held by this department. Although the 2018 ADCS survey on home education contains details of local authorities’ concerns about a trend for children known to social services to be educated at home, the statements made in the guidance document are not the result of a systematic survey or record. They are based on communications over several years with local authorities and other bodies about the work they do from day to day with families who have children who are deemed to be educated at home. It is not possible to attribute these to particular authorities or give specific numbers but the department is in no doubt that the statements are true, based on the experience of the bodies in question. The evidence is therefore accumulated testimony from local authorities, other public bodies, and parents and grandparents of children who are ostensibly home educated.”

Why does it matter?

Since reviving Graham Badman’s proposals, those who dislike HE have developed the art of scare-stories to the point where they now appear to have been accepted as significant, even though the DfE has no real data to support them. What is more striking is that the Guidance for LAs acknowledges:

“7.3 There is no proven correlation between home education and safeguarding risk. In some serious cases of neglect or abuse in recent years, the child concerned has been home educated but that has not usually been a causative factor and the child has normally been known anyway to the relevant local authority.”

Some may argue that in the introduction the Department is expressing concerns about the suitability of the education a child is or is not receiving from their parents, whilst in §7.3 it is discussing “safeguarding” risks. At one time this may have been an accurate explanation, but it is no longer the case. This is because the DfE has now conflated education and safeguarding, as illustrated by another statement in the introduction to the Guidance. The following paragraph is emphasised in the original:

“Where necessary – because it is evident that a child is simply not receiving suitable education at home and the use of school attendance powers is not achieving a change in that situation – the local authority should be ready to use its safeguarding powers as explained in this guidance. The overriding objective in these cases is to ensure that the child’s development is protected from significant harm.”

Here then, in the light of Bishop’s response to the FoIR, is a summary of the DfE’s logic:

  • We have no substantial factual evidence of children not being suitably educated at home, nor of them being in unsafe environments, only hearsay which we choose to believe;
  • We recognise that there is no proven correlation between home education and safeguarding risks;
  • We recommend, despite any evidence to support what is being claimed, that when LAs cannot accomplish the outcomes they deem best for a child, they override parental responsibilities by employing their safeguarding

This is a very unsatisfactory position for a government department to take, and it shifts the foundations of relationship between the state and all parents, not just those who home educate.

What can I do?

Given the course which the DfE has now adopted, it is very difficult to know how best HE families can respond. Elsewhere in the Guidance (§6.22) the DfE states that it would be prepared to “support local authorities to test the boundaries of current case law through discussion with them of potentially difficult home education cases which they are contemplating bringing before the courts…” Whilst this is not desirable, it may be the only way in which the new Guidance – and the lack of evidence behind it – can be challenged.

Should a truly elective home educating family find themselves unjustly taken to court by an over-enthusiastic LA, hopefully they will be supported by the wider EHE community.

Hearsay is generally not permissible in court, where only solid evidence is normally considered relevant.