Trying to Come to Terms with the Portsmouth Judgment

Trying to Come to Terms with the Portsmouth Judgment

There is a vital need to understand the implications of the outcome of the recent Judicial Review if our diverse home educating communities are not to completely surrender their responsibilities as parents.

What’s been said?

When the judgment in the Goodred v Portsmouth City Council High Court case was published on the morning of 16 November, a seismic wave of disbelief and bewilderment swept over home educating families. Frustration, anger, despair, and alarm have followed in its wake, making it very difficult to step back and calmly ask difficult questions. Questions like, why were hopes dashed so thoroughly, why did no-one apparently see this coming, what are the implications in the immediate future and, ultimately, does this mean all is lost?

Once the dust begins to settle, clear thinking around such areas will be important if the intent to completely disenfranchise parents is to be successfully resisted. It is worth reading the judgment as a whole, but if you prefer something shorter, we have been sent this Case Note (summary) on the Judge’s statement.

Additionally, a week after the publication of the ruling, two of the barristers involved conducted a webinar to explain what in their opinions were the issues being tested in the case, and the implications of its outcome. (Paul Greatorex represented Plymouth City Council and James Cornwell the Secretary of State for Education.) The session was recorded and the video is available here. Their presentations were seemingly matter of fact and are therefore helpful for those looking for a perspective on the judgment from outside home education circles.

Practically, there seems to be two areas of understanding about this case which home educating families will need to come to terms with going forward. The first is whether or not this judgment essentially takes away all hope of being able to push back against state overreach into family life. There is at least one reason stated in the judgment itself which suggests that this is not the case. Secondly, even if that were so, until it has been tested in an appropriate way, HE families living in England will have to develop ways of managing their relationship with their LA – especially if, as in Portsmouth, that authority is seeking to occupy every last inch of educational ground gifted to them by the 2019 Guidance.

Both these are major themes too complex to address in one of our regular pieces. Therefore in the hope of stimulating careful thought around such areas, we have worked with one of our readers on a longer article entitled, “How the State Demoted Parents” and placed it in our Library. This does not provide the answers to these questions, but it does identify key areas spotlighted by the judgment and offer suggestions as to how families might consider responding in both the short and long term.

Why does it matter?

The last thing HE families need to do in the wake of this case, is to throw in the educational towel and admit defeat. This is true equally for those who have held on to their parental responsibilities out of conviction, and for those who have reclaimed them out of desperation as schools have failed their children.

However outraged you may be feeling, remember the saying that “it’s always darkest before the dawn.” Does this judgment contain any hope of future light? Possibly one glimmer, indicated by Mr Justice Lane’s own words, when he stated in the second half of paragraph 96:

“As I have also mentioned, the claimant’s grounds make it plain that she is not bringing any challenge to the assessment by the defendant of the suitability of the education that she provides to her children. In any event, the defendant’s policy properly takes account of the 2019 guidance documents of the Secretary of State; and there is no challenge to the lawfulness of these.”

This clarifies that the claimant (the parent) was not contesting the defendant’s (Portsmouth CC) authority under the 2019 Guidance to assess the suitability of the education she was providing. More importantly, the judge makes clear that neither was she challenging the legality of that Guidance. In the first place then, this judgment is explicit that there is no lawful means (without a specific appeal against it, which the Portsmouth group have said they are not making) of restraining any LA which follows PCC’s example. However, it also states that the non-statutory guidance they are following remains untested by the courts. This important distinction does merit thorough consideration by those far more experienced in legal matters than the majority of HE parents, and indeed the author of this article.

One reason why this case did not challenge the Guidance could probably be that by when it arose, the time limits for doing so had expired. It may however be possible to tackle any significant revision of those documents in the future. If that were an option, it would almost certainly have to be on the grounds that they contravene Human Rights Legislation.

The now infamous Scottish Named Person Scheme was found to break data-sharing restraints, and because of that, the whole scheme could not operate. We have very recently quoted Lady Hale’s likening of the Scottish Government’s intentions with those of a totalitarian regime seeking to indoctrinate its citizens’ children with its own world-view. Paragraph 28 of the Portsmouth judgment refers to section 9.4 of the 2019 Guidance for LAs, which lists eight criteria by which an LA may decide to evaluate whether the education being provided to a child is or isn’t “suitable.” This list is not confined to skills and knowledge, but also encompasses values as a criteria for assessing suitability.

It seems that many home educators failed to recognise the sleight of hand contained in the revised Guidance. The day after its publication, we called this out in a Byte entitled, “Registration but Not Monitoring – Really?” Now, almost three years later, and in the light of this recent judgment, we invite you to reread that article and notice one of the dangers of this section which we highlighted then:

“Instead, whilst recognising that there is no requirement for HE parents to teach them, both guidance documents state that ‘education at home should not directly conflict with the Fundamental British Values as defined in government guidance’ (Parents §2.10.b), adding that if a LA suspects otherwise, then it should not ‘regard that education as being “suitable”.’ (LAs §9.4.c)” [Emphasis added]

It has been said that “a bad tree cannot produce good fruit.” Where this is so, there is very little to be gained from attacking the fruit instead of the root. In the recent case, it has to be asked if the wrong target was chosen.

HE communities in the UK and those who stand up on their behalf have a good record of resisting state incursion into family life. In October 2019 and then again in April 2020, Protecting Home Education Wales submitted legal opinions by David Wolfe QC which powerfully argued that the Welsh Government’s [WG] plans in the first instance for new EHE guidance and in the second for a database of children would both breach human rights laws. From what can be gleaned, these certainly caused the WG to think again.

When this website launched in March 2018, we carried a post asking a question which remains vital to this day, “Isle of Man Home Education – Who Defines ‘Suitable’?” This referenced a document written by Allan Norman, a solicitor and social worker commissioned by families on the island. Written in 2017, Norman’s submission set out “the human rights framework of the right to education, within which any consideration of home education must be framed.” The prolonged battle to defend those rights in the IoM finally succeeded in February this year.

The battle for educational freedom in Wales continues however, with Families First in Education – Wales having recently written to the Education Minister with a submission to rebut the Children’s Commissioner’s interpretation of the UNCRC. The delay there and the reversal in the Isle of Man should encourage home educators here in England to prepare in advance should a future opportunity arise to defend the primacy of parents as guaranteed in Human Rights conventions such as the Universal Declaration of Human Rights Article 26, 3:

“parents have a prior right to choose the kind of education that shall be given to their children.”

What can I do?

Don’t be overwhelmed by this judgment. All has not been lost.

Use the sources quoted in the opening section of this Byte to inform yourself of what is and what isn’t the outcome of this ruling.

In particular read our new Library article “How the State Demoted Parents” to understand some of the key implications of this ruling on the dynamics between LAs and parents under the 2019 Guidance.

That article also suggests some ways in which you could help prepare your family to engage with LA’s under the rules as set out in the Guidance. Perhaps the most important of these is to train your children to self-advocate so they are prepared for encounters with over-zealous LA staff.

Above all, remember that your sons and daughters are far too precious to abandon to the state machine.