This is a third article written in response to the 2023 consultation on proposed revised guidance on elective home education in England. However it also has relevance for families in Wales, where the government published new guidance earlier this year including similar unjustifiable attempts to extend state supervision of HE children.
What’s been said?
This Byte considers the references to so-called ‘voluntary registers’ in both the Guidance for Local Authorities [DGfLAs] and the Guidance for Parents [DGfPs]. There is no actual requirement for the Department for Education to issue guidance for parents. It is required to provide guidance to Local Authorities, in which the convention is that the word ‘must’ normally means that the specified action is required, whilst ‘should’ implies some ability to disregard the guidance if good reasons exist. The DfE however appears to be confused over the role it has in respect to parents, seeking to treat them as an extension of the state, by also providing them with ‘Guidance.’
Section 4 of the DGfPs is entitled, “What must be done if you choose to educate your child at home.” Point 4.1 starts truthfully, but descends into confusion and misdirection after the first sentence. This paragraph climaxes with, “Most local authorities operate voluntary registration schemes which are linked to support arrangements.” There is no explanation of what is meant by the phrase “voluntary registration schemes,” nor of exactly what is meant by “support.”
The key question is, who are these registers voluntary for – LAs, or parents and children? The answer is both, but you would not understand that from the way LAs relate to HE families. This fact is a little clearer in the DGfLAs, where the third bullet point listed in paragraph 4.9 “The Department recommends that each local authority should” reads:
“operate a voluntary registration scheme for children in receipt of EHE. With such schemes, local authority support can be given more readily to those parents who wish to receive it, and registration can result in additional, useful information being provided to local authorities on home educated children in their locality, which could help inform educational policy, delivery, and to support home educating families. Such schemes can help authorities discharge their responsibilities which they have under ss.436A and 437 of the 1996 Act. The Department therefore believes registration is valuable and is committed to legislate at a future opportunity for mandated local authority Children Not in School registers;” [Emphasis added here and below]
The other reference to voluntary registers in this document occurs in section 5, “How local authorities know a child is being educated at home”:
“5.2 There is no legal duty on parents to inform the local authority that a child is being home educated, but if a local authority does not know how a child is being educated then it will have to take steps to assure itself the child is in receipt of suitable education, starting with informal enquiries. Parents informing their local authority of their child’s EHE would avoid children potentially being defined as CME unnecessarily. If a child never attends school, an authority may be unaware that the child is being home educated. The Department therefore recommends local authorities maintain voluntary registers of children who are not in school, including those electively home educated and missing education. This will enable local authorities to better undertake their statutory responsibilities and potentially offer support.”
It should be noted that the situation in Wales remains the same as it is in England. In July 2019 the Welsh Government announced two consultations. The first, concerning the new EHE Guidance, was to take place immediately. The second was a separate “Consultation on the draft regulations regarding the database and the exchange of information between local health boards and independent schools to local authorities” and was scheduled to begin in the November. A legal opinion obtained by Protecting Home Education Wales in response to the first consultation delayed the launch of the second one until February the following year, then Covid-19 lockdowns caused further delays, meaning that nothing was published until May this year. Even then only the revised guidance was published, and on 6 June in a oral statement Education Minister Jeremy Miles said:
“To further support our commitment to the success and well-being of every learner, I will be making regulations that will require a database of children who are not registered at a school, not in receipt of education other than at school, or who are not known to the local authority as being suitably home educated. The database will identify children who are potentially not receiving a suitable education. We intend to consult on the database regulations by early 2024.”
He then added that the intention was to pilot the database for a year, potentially starting in spring 2025.
Why does it matter?
The first important point is that in both countries, official “on the record” statements make clear that there is no legislation in place enabling local authorities to operate mandatory registers of children being educated otherwise than in school.
This means no LA can be acting lawfully when they imply in any way that they are required to collect and store any data on your family. The implication therefore is that if you, or in some instances your child, do not give them consent to access your data, they cannot lawfully threaten you with any form of sanction. Please note, we are not suggesting that they won’t try; they probably will, because both the new Welsh Guidance and the draft English Guidance suggest that the refusal to provide information could be responded to by the issuing of either a Notice to Satisfy and/or a School Attendance Order.
The second key matter is that operating a database of EHE children lawfully is not easy, and it is causing significant problems. The Scottish Named Person Scheme was ruled illegal by the Supreme Court in 2016. The Scottish Government were unable to resurrect it precisely because they wanted to set up a database of all children. (N.B. The Westminster Government has more powers in regard to data protection than the Scottish Government, so it could more easily overcome such obstacles in the future, but at present the situation remains as it was in 2016.)
It is also worth noting that in May 2022, the Welsh Education Minister wrote to the Senedd’s Children’s and Young People Committee about the plans for EHE children, stating amongst other things [reported here]:
“One element of this work remains outstanding, relating to the benchmarking of the data sharing process between agencies.
The unforeseen delay in receiving this evidence may result in the proposals being brought before the Senedd in September rather than June as was intended. However, it is not expected to impact on the timescale for the implementation of the proposals in April 2023.”
As reported above, despite his confidence there is to be yet another consultation followed by a year-long pilot starting some time in 2025. It seems that introducing mandatory registration is proving something of a knotty problem!
Notwithstanding the experiences of the Scottish and Welsh Governments, the Children’s Commissioner for England, Dame Rachel de Souza, has for some time now been calling for “a ‘unique identifier'” for every child, saying:
“This would enable LAs to better track children who move around the system. Having a single unique identifier would better enable services to share information on a child, identify where they need help, and allow services to support them back into school.” [“Where are England’s Children?” March 2022; PDF report, page 16]
Make no mistake, registers are about tracking children, sharing information across services, and getting them back into school. This was essentially the agenda behind the Named Person Scheme, and always in the context of “keeping them safe.” However, many HE families know that schools are not safe places; that alone is a major factor driving the rise in parents deregistering their children.
Besides this, there are other causes for concern about registers in general – registers of any children, in any country. Time and again the state has proved itself unable to properly protect children’s data. The Children’s Act 2004, s12 paved the way for a project with the working title “the Children’s Information Sharing Index,” later named ‘ContactPoint.’ Under this scheme, extensive data on children could be collected without consent, shared and retained. This resulted in the production of a report in November 2006 called “Children’s Databases – Privacy and Safety” by the Foundation for Information Policy Research. In the Executive Summary, the authors argued:
“Government documentation and guidance is mostly unbalanced in that it ignores the dark side; it pays little heed to family values, therapeutic effectiveness, trust and privacy.”
This wilful denial of the dangers of collecting children’s data was confirmed by the response of the Labour Government to the Deloitte “Data Security Review” of the proposals, which the Telegraph [archive copy] (June 2010) reported was only released after intervention from the Information Commissioner. Highlighted in that article is this key observation:
“It should be noted that risk can only be managed, not eliminated, and therefore there will always be a risk of data security incidents occurring.”
During the period ContactPoint was being planned, the proposals for a national database of children had been criticised. The then Information Commissioner, Richard Thomas, raised his concerns with the Times in August 2004. The article was entitled “Beware rise of Big Brother state, warns data watchdog” [archive copy] and he told their Home Correspondent:
“The Children Bill proposes a database of all children from birth until adulthood… There are reasons why we need to promote better information sharing where children are at risk, but whether the right answer is to create a database of every child in the country should be questioned.”
Eventually the Coalition Government heeded these and other concerns. In a written statement, Under-Secretary of State for Education, Tim Loughton announced on 22 July 2010 that ContactPoint would be closed down just two weeks later. He added:
“It has always been our view that it was disproportionate and unjustifiable to hold records on every child in the country, making them accessible to large numbers of people.“
It appears however that the State has memory loss problems. Current and draft EHE guidance is produced by those who exhibit exactly the same symptoms of institutional blindness as those who devised ContactPoint. It doesn’t matter if a database contains information on every child in the country, or just those who are being well looked after by their parents whilst being educated outside of school; it remains disproportionate and unjustifiable to hold records on them.
At this moment in time it is clear that there is no legal authority for LAs in England and Wales to demand data on your family because you have chosen not to delegate your responsibility to educate your children to the state. “If you don’t defend your children’s rights to a private life now, then they will have those rights taken away”
What can I do?
First and foremost, recognise that what is being pushed by the DfE and politicians is not new. Since 2004 at least, invading families’ privacy in order to track, trace and supervise their children has been the direction of travel across the UK.
Remember the reality is that registers do not protect children – parents do!
Secondly, determine to respond to this current consultation – yes, it’s difficult to know what to say, but help is available and more is on its way. There are over two weeks in January to respond, so for now you could try reading some of it and looking at what others have already said – details, resources and links are on our English Consultations page.
Once you have submitted your response, you may also want to consider contacting your MP to initiate a dialogue with them about how confusing and misleading the draft guidance is, and how inaccessible and confusing the consultation process has been.
Finally, one other thing you could think about. Data protection and human rights legislation are in place to protect the civil liberties of citizens. However, if citizens do not protect the protections they provide, then they will no longer protect citizens. Please think long and hard before surrendering your right to privacy in exchange for a “quiet life.” The latter is an illusion, for there are many people who are hungry for your children’s data.