Annex E – Legislative framework
1. Children’s rights The United Nations Convention on the Rights of the Child (UNCRC) is an international human 1.1 rights treaty that grants all children and young people (aged 17 and under) a comprehensive set of rights. It came into force in the UK on 15 January 1992. When a country ratifies the convention it agrees to do everything it can to implement it. The convention gives children and young people over forty substantive rights which include 1.2 the right to express their views freely, the right to be heard in any legal or administrative matters that affect them and the right to seek, receive and impart information and ideas (Articles 12 and 13). It also includes the right to an education (Article 28).
1.3 Section 53 of the 2004 Children Act sets out the duty on local authorities to, where reasonably practicable, take into account the child’s wishes and feelings with regard to the provision of services.
1.4 Local authorities must ensure that functions conferred on them in their capacity as a local education authority are exercised with a view to safeguarding and promoting the welfare of children. Duties under the Children Act 1989 impose a requirement on local authorities to safeguard and promote the welfare of children in need in their area and to make enquiries and take appropriate steps where there are concerns about a child’s welfare.
2. Parent’s rights, responsibilities and duties The Human Rights Act 1998 came into effect on 2 October 2000. The purpose of the Act is to 2.1 give effect to the rights and freedoms guaranteed under the European Convention on Human Rights (“the Convention”). Convention rights are enforceable through domestic courts, legislation should be interpreted so far as possible so as to be compatible with the convention and it is unlawful for public authorities to act in a way which is incompatible with a Convention right. Article 2 Protocol 1 of the Convention provides: “No person shall be denied the right to education. 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 is in conformity with their own religious and philosophical convictions.” 27 Sections 17 and 47 of the Children Act 1989
2.2 Education is therefore a fundamental right and can be provided at school “or otherwise”. The responsibility for the provision of a child’s education rests with their parents who also have a duty to ensure that any education provided is ‘efficient’, ‘full time’ and ‘suitable’. This is set out in Section 7 of the Education Act 1996 which provides that:
“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.”
2.3 The terms “efficient” and “suitable” education are not defined in law although case law has broadly described an “efficient” education as one that “achieves that which it sets out to achieve”. A “suitable” education is one that: “primarily equips a child for life within the community of which he is a member, rather than the way of life in the country as a whole, as long as it does not foreclose the child’s options in later years to adopt some other form of life if he wishes to do so”.
2.4 Parents may decide to educate their child at home and they can do this at any time during statutory school age. Should parents decide to home educate from the start of statutory school age, they can do so and do not have to inform anyone e.g. the local authority. If the child was previously on a maintained school or independent school roll, parents must officially deregister from the school which is then obliged to inform the local authority.
3. Local authorities’ responsibilities
3.1 Local authorities have a statutory duty to make arrangements to enable them to establish the identities, “so far as it is possible to do so”, of children in their area who are not receiving a suitable education.
The duty applies in relation to children of statutory school age who are not on a school roll, and who are not receiving a suitable education otherwise than being at school (for example, at home, privately, or in alternative provision).
Section 7 Education Act 1996
Mr Justice Woolf in the case of R v Secretary of State for Education and Science, ex parte Talmud Torah Machzikei Hadass School Trust (12 April 1985)
Education (Pupil Registration) (England) Regulations 2006 (SI 2006/1751)
Section 436A of the Education Act 1996, inserted by the Education and Inspections Act 2006
3.2 Under Section 437(1) of the Education Act 1996, local authorities shall intervene if it appears that parents are not providing a suitable education. “If it appears to a local education authority that a child of compulsory school age in their area is not receiving suitable education, either by regular attendance at school or otherwise, they shall serve a notice in writing on the parent requiring him to satisfy them within the period specified in the notice that the child is receiving such education.”
3.3 Guidance states that “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”.
Parents are under no duty to respond to such enquiries, but case law provides that “it would be sensible for them to do so”.
3.4 Local authorities can apply to serve a School Attendance Order if after all reasonable steps have been taken, they are not satisfied that a suitable education is being provided. At any stage following the issue of the Order, parents may present evidence to the local authority that they are now providing an appropriate education and apply to have the Order revoked. Local authorities also have a duty to safeguard and promote the welfare of children.
3.5 This section states: “A local education authority shall make arrangements for ensuring that the functions conferred upon them in their capacity as a local education authority are exercised with a view to safeguarding and promoting the welfare of children.” This duty does not give local authorities powers to see children for the purposes of monitoring the provision of home education.
Revised statutory guidance for local authorities in England to identify children not receiving a suitable education, DCSF, January 2009; section 87 33 Philips v Brown (unreported transcript 424/78 QB (DC)) 20 June 1980
Detailed information about school attendance orders is contained in Ensuring Regular School Attendance paragraphs 6 to 16
Under section 175(1) of the Education Act 2002
3.6 Where a child who has a statement of special educational needs and is on the roll of a special school the child’s name may not be removed from the register of that school without the local authority’s consent. Consent may not unreasonably be withheld. If a child who has a statement of SEN is educated at home it remains the duty of the local authority to ensure that the child’s needs are met. The statement must remain in place and it is the local authority’s statutory duty to undertake an annual review of special educational needs. This review includes assessing whether the statement is still appropriate, requires amendment or might cease to be maintained. If parents’ arrangements are suitable then the local authority is relieved of its duty to arrange the provision specified in the statement.