...which can be viewed for ease of access here, amongst many other points of issue, presents a glaring paradox.
From the 2009 Guidance...
"87. Section 436A of the Education Act 1996 requires local authorities to make arrangements to establish (so far as it is possible to do so) the identities of children who are not pupils at schools and who are not otherwise receiving suitable education. In order to comply with this duty local authorities need to make arrangements which will as far as possible enable them to determine whether any children who are not pupils at schools, such as those being educated at home, are receiving suitable education. In order to do this local authorities should make inquiries with parents educating children at home about the educational provision being made for them. The procedures to be followed with respect to such investigations are set out in the EHE Guidelines, 2.7-2.11 and 3.4-3.6. "
which differs markedly from the 2007 version:
"3.3.16. If it becomes known that a child identified as not receiving education is being home educated, this should be recorded on the local authority's database and no further action should be taken unless there is cause for concern about the child's safety and welfare. Monitoring arrangements already exist for children being educated at home. Where there are concerns about the child's safety and welfare, Local Safeguarding Children Board procedures must be followed."
Right, to the paradox: there appears to be a direct conflict between what the 2009 CME (Children Missing Education) guidance and what the 2007 Elective Home Education Guidelines says the Local Authorities should do. The 2009 CME guidance plays up s436a of the Education Act 1996 (inserted from the Education and Inspections Act 2006), and the EHE Guidelines 2007 play up section 437....and ne'er the twain should meet, as lawyer Ian Dowty rightly pointed out.
So which one is supposed to take precedence? Presumably given that the 2009 guidance is statutory, then 2007 EHE guidelines are non-statutory (NB the statutory difference between guid"ance" and guide"lines"), the 2007 guidelines should go by the by, but since 2009 makes statutory reference to following 2007, we seem to be caught in a paradoxical nightmare.
If we take the 2009 stuff seriously, (which I think we should because in effect the LAs will take 436a as meaning they have a duty to assess all educational provision) , it seems that the state has appropriated de facto responsibility for the determining the interpretation of Section 7's suitability criteria...age, ability and aptitude nature of education. OK, parents may still be responsible for the ensuring a child is in receipt of a suitable education, ie: Section 7 Ed Act 1996... (an epistemological impossibility on many levels but hey ho), but parents are now clearly essentially only there to appear to be doing the bidding of the state and implementing the state's version of suitability. A parent is no longer responsible for ensuring the suitability of ed of their child.
This should be headline news. If we ignore the paradoxical nightmare above, something constitutionally hugely significant has happened, and this needs to be pointed out to the ptb at the DCSF. Parents are now unable to enact essential principles of freedom of thought and conscience and are essentially in a huge regard, subject to indoctrination by the state.
And of course this contravenes Article 2 of Protocol 1 of the Human Rights Act:
"In the exercise of any functions which it assumes in relation to education and to teaching, the State shall respect the right of parents to ensure such education and teaching in conformity with their own religions and philosophical convictions."
Some other consequences that I can think of....now that the state is in effect responsible for determining the nature of a suitable education, they should be held accountable when their version of it clearly does not suit a child. We would have to deal with all the "so far as it is possible" clauses, but they so woefully fail so many children in situations where it is evident that they could do better, that I think they should be worried, VERY worried.
That'll do for the moment. Will come back to this doubtless.