Scotland Opts for Non-statutory Trusting Relationship with Home Educators

Scotland Opts for Non-statutory Trusting Relationship with Home Educators

In contrast to the increasing rhetoric of “all children in school” being used by politicians in England and Wales, this Scottish consultation demonstrates the benefits reaped by home educators standing their ground.

What’s been said?

The Scottish Government has on 23 March 2022 published its Home education guidance: consultation. Unlike the Department for Education in England it has opted to “develop trust, mutual respect and a positive relationship” that being in “the best interest of the child”. There is no database, no new legislation and no prescriptive approach. Nor is there any suggestion that home education is an indicator of a child at risk. The key difference between Scottish home education law and the English equivalent is that parents need the consent of the authority to withdraw a child from a state school. Otherwise, there is no statutory requirement for the authority to know that a child is being home educated.

Key positive points from the consultation are:

  • “The choice to provide home education is a legitimate choice, alongside the option of sending a child to school”
  • “Parents do not have to provide the authority with a reason for their request to withdraw their child from school”
  • “There is no statutory duty upon parents to inform the local authority that they are home educating if they do not require consent”
  • “Parents are not required to indicate the reasons that they are requesting to withdraw their child”
  • “Consent shall not be unreasonably withheld”
  • “There is no statutory duty upon local authorities to monitor ongoing home education provision”
  • “Home educators and local authorities are encouraged to work together to develop trust, mutual respect and a positive relationship in the best interests of the child”
  • “The authority does nothave a right of access to the home or the child”
  • “Where a parent does not allow access to their home or their child, this does not of itself constitute a ground for concern about the education provision”
  • “Where the authority has concerns about the education provision… the authority must have demonstrable grounds for concern”

Within these parameters the onus is still on the authorities to enquire but, ultimately, a polite refusal cannot trigger enforcement if the authority has no evidence that the education is unsuitable. The consultation does contain a neutral question on the possibility of a database but, otherwise, one is not proposed.

The proposals are in stark contrast to the prescriptive English and Welsh Local Authority databases. If Scotland’s aim is to reach all home educators, then establishing a relationship based on trust and mutual respect is more likely to achieve that aim, as opposed to a punitive statutory registration scheme which many families will simply resent and ignore.

Why does it matter?

Scotland had previously passed a law assigning every child in Scotland a Named Person who would be responsible for monitoring child “wellbeing” should something indicate that a child’s “wellbeing” was at risk. An indicator could be as low as a child crying in school because a pet had died or a child was perceived as difficult. That is all it would have taken for a teacher acting as Named Person to have had access to a wide range of personal family data, from parents’ medical reports to all authority-held records.

Home educators were quick to see the implicit threat to home education freedoms and instigated a campaign to have the Named Person law struck down. After a long battle the Supreme Court struck that law in 2016 – a landmark judgment which changed the legal landscape for access to personal data by public authorities.

Scotland, consequently, has opted for home education guidance that fully complies with laws on Human Rights, Data Protection and Equality laws. The guidance is in the spirit of the European Convention on Human Rights – Article 2 of Protocol 1 declaration that “the State shall respect the right of parents to ensure such education and teaching is in conformity with their own religious and philosophical convictions.” [Emphasis added]

Crucially, Scotland recognises that the “choice to provide home education is a legitimate choice, alongside the option of sending a child to school” and that it will “uphold the rights of the child or young person and their family.”

Contrastingly, the English Department for Education has opted for the stick without the carrot approach, encouraging local authorities to push hard for personal information from parents whilst discriminating against home educators by legislating for a statutory database with penalties for non-registration.

The Scottish Government clearly doesn’t want to go back to court over its child legislation whereas, arguably, the Department for Education’s database proposal has lit a slow-burning fuse for a judicial review of its legislation if Parliament chooses to pass it – as it surely will if MP’s are not made aware of what they are doing.

What can I do?

Write to your MP, or better still, meet with them, referencing this article and explaining why you demand that English home education legislation is written to comply with all the constitutional protections of family life which Human Rights, Data Protection and Equality laws afford.

Explain that governments should confine their interests within established checks and balances and stress that law-abiding families prefer carrots, not sticks.

The DfE in England can be contacted directly by email – please be firm but polite. Currently, Families First in Education – Wales, are collecting home educators’ comments to pass on to the Education Minister’s department there.

Respond to the consultation by 13 July 2022, even if you don’t live in Scotland, praising the non-prescriptive approach to relations with home educators. You don’t need to live in Scotland to respond.

Postscript: Information about this consultation can be accessed from our Scottish Consultations page.