So by way of an example, suppose, just suppose the DfES decides that LAs should have an automatic duty to monitor progress of education at home. This clearly would conflict with current law since under Section 437 of the 1996 Education Act, the LA only has to intervene in the situation that it appears that a child of compulsory school age is not receving a suitable education.
This, as I read it and I'm sure it's not just my imagination, does not mean that LAs can, under current law, demand regular monitoring of HEors. LAs have no such duty (though obviously they do try to pull this one all the time.) They can only intervene in the case that a reasonable person on balance of probabilities would think that an education is not happening. From this we can deduce that if the DfES were to insist on regular monitoring as a statutory LA duty, the government would have to alter or enlarge upon section 437.
If they did just that, where would that leave us? Well, possibly not completely stuffed, I hope. The thing is, regular monitoring of home educators will mean regular intrusion by the state into the very stuff of private family life. If there is no reason to suspect that an education is not taking place, then LAs will have no rightful reason to contravene Article 8 of the European Convention on Human Rights which provides a right to respect for one's "private and family life, and home ."
So that could be alright then. Might take a legal challenge on the basis of EHR but we might be OK. But what if they did something else? What if they suddenly decided that they could get more prescriptive about the meaning of a "broad and balanced" education?
From Section 351 (I think) of the 1996 Education Act we have:
351. - (1) The curriculum for a school satisfies the requirements of this section if it is a balanced and broadly based curriculum which-
(a) promotes the spiritual, moral, cultural, mental and physical development of pupils at the school and of society, and
(b) prepares pupils at the school for the opportunities, responsibilities and experiences of adult life.
They could try to claim that our educational provision is inadequate if we don't jump to it and do this, do that and the other, according to their prescription. And yet, (as Mike kindly pointed out) in Section 7 of the 1996 Education Act, we are enjoined to ensure that
7. The parent of every child of compulsory school age shall cause him to receive efficient full-time education suitable-
(a) to his age, ability and aptitude, and
(b) to any special educational needs he may have,
either by regular attendance at school or otherwise. "
What, Mike asked, would the authorities say was a suitable education for Serena Williams? Would her mostly tennis based education fit the mold of broad and balanced education, or if she was forbidden from playing so much tennis on the basis that her education didn't look so broad, would she really be in receipt of an education that suited her ability and aptitude? There is a tension here within the same Act which can be used to our protection against the institution of a prescribed curriculum of any sort.
I've started calling this protection of our rights to personalise the education for our children "the Serena Williams Principle, " and it's an important one, since it isn't just Serena who would benefit from a personalised education tailored specifically for her individual needs. All children would benefit from this and this must be enshrined and protected in law in any right-minded society.
And then for the icing on the cake, by way of added protection, we also have Protocol 1, Article 2 of the ECHR:
Protocol 1 - right to property, education and free elections
Article 2 provides for the right not to be denied an education and the right for parents to have their children educated in accordance with their religious and other views.
I reckon we've got a case.