Draft Response to the Consultation on Children Missing from Education Guidance

Please do feel free to use the following freely in any responses to the CME consultation. It is a nuisance to be having to do this all over again, but I would urge all home educators to do so, in order to demonstrate that there will be strong resistance to this further attempt by the government to appropriate parental responsibility for children.

NB: I am constantly improving upon this as and when I can, so it is worth checking back here periodically. (sorry RSS users). I also hope to be writing another possible template in the nearish future which could hopefully make this whole process of responding even simpler. Dani also has a great draft up here.

Consultation Questions

1 Based on your experience of local authorities implementing this duty since it was introduced in 2007, does the guidance make clear the actions which local authorities are expected to take to help them comply with the duty?

No

Comments:

Presumably the above question refers to the Feb 2007 CME guidance and if this is the case, it seems from our experience of it on the ground, that in our area at least, LAs have not got to grips with implementing this guidance at all. We suspect that this may not simply be because there are many areas of ambiguity that may lead to confusion in the 2007 guidance, but also because the LAs have not yet got some of the basic tools with which to implement it. For example, it was envisaged that the 2007 guidance would work along with Contactpoint which even now is far from ready to be activated. The 2007 guidance has not yet been given a chance to work properly and it is therefore impossible to judge whether it would have done so.

Even though it has not been implemented in anything other than a piecemeal fashion, we are nonetheless finding that when they do try to do it, LAs struggle with interpreting the 2007 guidance, with understanding their roles and the limits of these roles. For example, they are coming down very hard on families they already know about who are being educated at home. It has, for example, been reported that some LAs would like to perform a Common Assessment Framework on all home educated children whether or not there is any indication for it. Many home educated families are rightly offended by such an implication and would regard the whole process as highly intrusive, effectively obliterating their right to privacy as enshrined in Article 8 of the European Convention on Human Rights, when there is no clear reason why the state should intrude in such a way.

LA officials need to be reminded in guidance that it may be difficult for them to understand the damage that they may do when they intrude upon HE families and the learning process of some children. Many children are being educated at home because they did not receive a suitable education at school. They may need time to recover from terrible experiences in schools, or perhaps because of a particular constitution, for example, they may be highly anxious about achieving, they fail to progress under the fear of being inspected because their anxiety to achieve is so high as to be debilitating. When left to their own devices, these kinds of children often thrive, and when confident in their skills can go on to face big challenges. However, for an LA official to intervene to inspect the education of such a child would be to risk entirely forestalling this process. We know a great number of children in our community for whom inspection would be damaging in this way. In insisting upon intruding or indeed even threatening to intrude and inspect, LA officials, rather than finding children missing from education, will be creating them instead and guidance should help LA officials to consider this factor in their actions.

By way of another example of the damaging uselessness of inspections, some children who failed to receive a suitable education in schools may have almost imperceptible, but nonetheless very important perceptual difficulties. For example, some children have developmental hearing disorders which cause them to hear background noises or certain frequencies very loudly. These types of hearing disability make it almost impossible to learn in a classroom situation and yet they go frequently undetected by the schools and no solution is found for them when the problem is recognised. What is a school to do? Find a place where the child can learn undistracted by the overriding ping of the strip lighting and/or the rumbling of other children moving their feet? Schools simply cannot manage this effectively, whereas a family can adapt to the problems, sometimes deliberately, but frequently often through a process of personalised trial and error, intuitively finding the solution. This process is sometimes helped by the fact that a parent will have had similar difficulties and will have particular insights into how to solve the problem. Yet an LA officer can wade it, unaware of all the history, and see a child learning alone, and think "uh ho, no socialisation, here we go!" Inappropriate, ignorant and insensitive judgements are likely to happen far more frequently if the government insists on upping the inspection rate.

Worse still, and by way of another example of increased heavy-handedness of LAs: in one case, a home educated child has been removed from her family in what appears to be an entirely disproportionate move. The HE community who know the family are at a loss to understand how this could have happened. All accusations that have been levelled at the family appear to be relatively trivial and certainly not of such a high level of concern as to warrant removal of a child with all the terrible consequences that this entails.

LAs need to reminded that there is a high likelihood of trauma and poor outcomes for children who are removed or even who are threatened with intervention and removal from their families. With the increased pressure upon LAs to find children missing from education and to ensure that children are safeguarded, we can expect to see more of such cases. It is therefore very important that guidance such as this contains a reminder to LAs of the damage that intervention by them can do to families and that their actions must always be proportionate and evidence-based.

Whilst there are some obvious areas of difficulty with the 2007 guidance, we feel that introducing a completely new version of guidance which would exacerbate rather than resolve the difficulties of the original, is clearly not a solution. This proposed new guidance would demand yet more of the LAs whilst they still do not have the tools available to them. Furthermore, the proposed guidance continues to confuse, failing to clarify legislation, sometimes conflating separate bits of law, at other times, omitting key concepts in primary legislation, and at other times pushing one piece of legislation to the point where it then demonstrably conflicts with other key areas of legislation.

It is also overlong, inconsistent, and vague in it's instructions.

The DCSF should be aware that this proposed version will have monumental and negative consequences for primary legislation, local authorities, families and government and may well cause LAs to act in an ultra vires fashion with regard to some areas of the law. (See subsequent answers for further explanations).

The purpose of guidance should be to clarify legislation rather than to cause further confusion and it must not cause or give leeway for the authorities to act in an ultra vires fashion as it would appear to do, for example, with regard to S437 of the 1996 Education Act. (see below for explanation.)

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2 Does the guidance make clear the role that implementation of this duty has in the wider programme of work led by local authorities to improve outcomes for children and young people, including promoting their safety and well-being?

No.

Comments:

The so-called guidance is written in such a way as to be highly likely to lead to confusion with regard to LA's roles in the wider programme of work. For example, the paragraph 1.1.1.

" There is wide agreement about the outcomes we all want for every child – they should be healthy, stay safe, enjoy and achieve, make a positive contribution and achieve economic wellbeing."

does nothing to clarify that it remains the responsibility of parents to help a child to achieve these aims. In fact, when you couple the above paragraph with the general thrust of the duty to find children missing education, it could easily lead to the impression that LAs have direct duties with regard to all the above objectives. However, nowhere in primary legislation does it state that the LA should take responsibility for ensuring that a child achieves these aims. The Children's Act 2004 makes it clear that whilst LAs do have duties, these duties are to co-operate to promote these aims, or to make arrangements to meet these aims. This is categorically not the same as taking responsibility for ensuring that a child meets these aims and the above paragraph along with many others in a substantial part of the guidance, eg from 1.1.3:

"The guidance also demonstrates how implementation of this duty can help local authorities make progress towards a number of Government priorities that they have been asked to lead in order to improve outcomes for children and young people. These include:

• the ambitions described in the Children’s Plan;"

by failing to make this distinction clear, are very likely to cause LAs to be led astray and to act in an ultra vires fashion, rather than to be helped by this guidance.

Clarification of the actual duties enshrined in the Children's Act is only given in the Appendices, by which time readers may well have formed the impression that LAs are entirely responsible for ensuring children's safety and well-being. This may well lead to increased heavy-handedness on the part of LAs, as evidenced in the answer to question one.

It is therefore of cardinal importance that the distinctions between the different kinds of responsibilities and who is actually responsible for what are clearly stated, and this also for the reason that if LAs do start to behave as if they have responsibility for meeting the aims for children, as stated in the Children's Act 2004, they will in effect be appropriating parental responsibility for all children in all areas of life and will be liable when these aims are not met.

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3 Does the guidance accurately describe the range of circumstances that put children's safety at risk and puts them at risk of not receiving a suitable education?

No

Comments:

Of course schooling families are explicitly entirely exempted from assessment for "suitability" of education and one could understand why this would be the case because if suitability of a schooled child's education were to be assessed under the CME initiative, then tens of thousands of parents across the land could be held liable for failing to provide a suitable education under Section 7 of the 1996 Education Act, or in the situation that it could be established that the parent had call upon the school to expect that their child should be suitably educated, LAs and/or schools will become liable for a failure to cause a child to receive a suitable education. We hear from the government's own figures, that one sixth of children leave primary school unable to read and write, (one fifth are reading and writing poorly), and that a third of all 14 year old boys have a reading age of 11 or below, and yet because they attend school, they are apparently exempted them from the CME initiative if it is to be about assessing for suitability of education.

Therefore, if the risk we are talking about is the risk of not receiving a "suitable" education, then NO, the range of circumstances that would put a child at risk has not been accurately or realistically described, for clearly "going to school" should in reality be considered a high risk circumstance.

Although school children are exempted from the CME identification initiative, the paragraph in the proposed guidance concerning the schooled population is revealing in that it seems to suggest that the emphasis of the CME initiative is upon "attendance" of children at their place of education, rather than upon whether they are receiving a "suitable" education:

"Schools already have a duty to monitor attendance through the daily attendance register and to make returns to local authorities where the attendance of individual pupils gives cause for concern."

However, the distinction between detecting for attendance or for suitability is far less clearly stated for the targets of the proposed guidance. Are these children to be classified as missing an education if their place of education is unidentified, or if their education is not suitable? This lack of explicit clarification in the guidance and will almost certainly lead to confusion in practice as LAs fail to understand what they are actually meant to be identifying.

The relevant paragraph re home education states:

6.17....Where a local authority is satisfied that a parent is providing their child with a suitable full time education, the child is not the target of this duty.

This would seem to suggest that LAs have a positive duty to assess for suitability in all cases of home education. However, if we are to take the paragraph about schooled children seriously, and apply the same standards of identifying children who are missing from education, we would be talking about whether children outside school "attend" their place of education, not whether the education is "suitable". If this standard is to be applied so as to achieve parity with schooled children, then all that an LA would need to do would be to check that the child resided with the parent who has explained that they are home educating, to make a note of this and to leave the family alone.

However, it isn't simply a matter of demanding parity with the way schooled children and their families are judged under section 437. There are other extremely significant implications for primary legislation if the CME initiative is taken to mean that LAs must assess an education for suitability. If guidance allows LA personnel to infer because of ambiguous writing - and I think that it is likely that it will as a result of other difficulties as well...see *2, that all children out of school must be judged for the suitability of their education, it will create a conflict both with Section 437 of the Education Act 1996 and with Sections 7 and 9 of the same Act.

It will create a problem with s437 because this states that LAs only have a duty to act when there is a reason to believe that a suitable education is NOT being provided. This is framed in the negative because this preserves the principle of parental responsibility for education, as enshrined in Section 7. The state only has a duty to act when parents fail to observe their duties. This is how it should be. For the state to act in every case to assess for suitability of education, (a possible but clearly pushed interpretation of s436A of the Education Act 1996) is to establish that in actual fact, the state is responsible for education of children. Parents, in no longer having a final say so, will have relinquished the right (as protected in section 9, Ed Act 1996) to determine the form and content of a child's education. If the state is to have the final say so in whether a child's education is suitable, it should accept that it is determining the form of education and it must now be held responsible should this chosen form of education fail a child. Home educators, who are now well versed in education law, will almost certainly demand recompense in this situation should the education prove unsuitable to the age, ability and aptitude of the child.*

Much of the guidance is written so as to lead an LA to think that they must take the role of establishing that an education is suitable, not of taking action only in the situation that the education appears unsuitable. It would help to clarify matters if the emphasis in the guidance upon suitability should be removed and it should be made clear thatLAs are seeking children who are failing to attend.

Should it prove impossible to rewrite guidance so as to remove the word "suitable", it would be necessary to include regular reminders to the LAs of the legal meaning of a "suitable education". It does not refer to a form of education or a set of standards that an individual LA officer happens to prefer; rather the education must be "suitable to age, ability and aptitude and any other special educational needs the child may have" and that this education may take a number of different forms. They also should be reminded early on that it is parents who are responsible for the provision of a suitable education of children and that children are to be educated in accordance with parents' wishes. (see Section 9 Ed Act 1996). These principles need to be mentioned at an early stage in the guidance and should be regularly reiterated throughout it.

Further, the LAs should also be reminded at an early stage that they do not have to assess for suitability in all cases. They only have a duty to act where it appears that a suitable education is NOT being provided. The consequences of failing to observe this difference should also be included in the guidance.

Further on the problems of the delineation of the range of circumstances that might put a child at risk: the guidance is at times so confusingly written in this regard, that it is difficult to understand the intended messages (*2). For example, in paragraph 3.3, it states in effect that a child may be at risk of not receiving a suitable education if the parent withdraws the child from school in order to home educate but then fails to provide a suitable education. Clearly, if the child is not receiving a suitable education, he is clearly not "at risk" of not receiving one.

This kind of confusion in the writing would lead most people not to read the guidance too closely and to take the general message that all home educating families need to be checked up on to see whether or not they are providing a suitable education. If this were to happen, it would have significantly problematic consequences for legislation, government and families, (see above for an explanation*.)

We understand that pressure for further guidance and increased monitoring has come about at least in part because of there being a perceived danger of forced marriages in the home education community. Aside from the fact that the evidence base for this assertion seems to be both sketchy and speculative, it must be acknowledged that the risk of forced marriage in a huge section of the home education community is actually negligible. Inexplicitly upping the home education community into an "at risk" group on the basis that a very small number of them may be at risk of forced marriage is both disproportionate and inaccurate in that it is not home education which creates the vulnerability to forced marriage; rather it is an entirely seperate culture that permits or encourages it.

It is essential that this inaccuracy is corrected for it will otherwise result in unnecessary and frequently damaging intrusion into the lives of otherwise perfectly well-functioning families and will prove a waste public funds in the process.

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4 Does the guidance show effectively what steps local authorities should take when children are living in difficult circumstances that put them at more risk of not receiving a suitable education?

Answer:

No.

We think the guidance will only confuse the LAs as to what to do. For example, there is the confusing delineation of home educated children. Are they or are they not classed as vulnerable?
LAs are likely to think that the guidance is impenetrable and ambiguous. We had better investigate the lot. " LAs are likely to become interventionist when their help is not needed and may well be positively damaging for families and they will waste public funds in the process.

The first clear indication of what LAs may do as regards the sharp end of the implementation of CME can be found in the list at 2.3 (see below), which is a intended as a brief summary of options:

"• receive information about a child;
• check if place of education already known;
• log details on database;
• locate and contact family;
• determine child’s needs;
• identify and access available provision and places;
• monitor attendance for all provision; and
• track and reconcile movements."

We believe that this list is likely to be very misleading for LAs. They may well read the list as prescriptive, (despite the preceding and subsequent qualifications) or may abuse parts of it, for example in thinking that they can determine every child's needs whether or not it had been established that it is likely that a suitable education is not being provided, as would be required by section 437 of 1996 Education Act. LAs do not have an automatic duty to assess the child's needs and to read such a prescription out of context in such a list is likely to lead to LAs acting outside of other sections of the law which will in turn subvert the relationship between the citizen and the state as mentioned in the answer to question 3 *.

Further, such actions as determining a child's needs would require high levels of intrusion where it is not established that such intrusiveness is a proportionate measure. This action would override any hope of any privacy for families. Home educated families would immediately, and for no clear reason, have to surrender a right to privacy as enshrined in Article 8 of the European Convention on Human Rights.

It should be noted that Home Educators are now well informed on education law and are likely to prove a litigious group. If their children are forcibly returned to school and if that schooling fails to deliver, (as it surely will since many of these children were withdrawn from schools in the first place because of a failure of education), we can expect to see many more cases such as Phelps v. the Mayor of Hillingdon:

http://www.parliament.the-stationery-office.co.uk/pa/ld199900/ldjudgmt/jd000727/phelp-1.htm

To return the matter of whether the guidance effectively shows what LAs should do with regard to children at risk, when it comes to detail, LAs will often be as much in the dark as they were before. For example, the guidance is unclear about what actually happens when the local authority finds the home education "not suitable." Do they report it to Children Missing Education team and if so, what happens next? Would CME then refer it to Education Welfare? Or Social Services for an assessment ? This guidance fails to make any of this clear.

Of course, until Contactpoint is activated, it seems unlikely that LAs will be able to carry out the guidance and even when Contactpoint does start up, the database is likely to present as many problems as it solves, with inaccuracy of data and high likelihood of data insecurity which could endanger children, so the first issue of identification of children at risk already seems likely to be problematic, whatever the guidance says or fails to say.


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5 What are the key challenges local authorities could face to implementing these guidelines effectively?

Answer:

(Are they guidelines or guidance?)

The key challenges include the fact that the guidance appears to override the rights of parents to educate their children as they see fit and creates a conflict between various parts of primary legislation, setting s436a in conflict with s437 of the 1996 Education Act.

The proposed guidance also creates a conflict with the Guidelines on Elective Home Education, the general thrust of which respected the primacy of parental responsibility for education. These guidelines (which came into effect only last year) would have to be re-written all over again, with all the attendant costs.

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6 Does the guidance make clear the duties and powers that local authorities have in relation to home educated children when parents are not providing them with a suitable education?

No

Comments:

See reasons stated above ie: the general thrust of the guidance creates conflicts between section 436a (1996) and s437 (1996) and in giving section 436a precedence, it overrides the right of a family to privacy as enshrined in European law.

The guidance generally suggests that LAs should automatically determine a child's needs and whether an education is suitable, eg:

6.35. In order to discharge their duties in relation to children not receiving an education, local authorities should make inquiries with parents about whether their home educated children are receiving a suitable education."

when in fact, there is only reason to do so when there is a suggestion that the educational provision is not suitable. Home Education should not be a prime facie reason for such investigation.

In effect, the state thereby becomes responsible for determining a child's needs and in determining whether the education is suitable it thereby becomes the ultimately responsible for determining the form of education and thus overrides section 9 of the 1996 Education Act. Further, this lays the state open to litigation when its preferred form of education fails a child.

The CME guidelines create a conflict with the Elective Home Education Guidelines on the above points which could only generate further confusion for LAs.

In encouraging LAs to take such a proactive stance with regard to seeking out children, we are likely to find that they become very heavy-handed and make more mistakes with their assessments, thereby damaging children and families.

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7 Does the guidance contain all the 'signposts' to other relevant guidance; sources of support and advice for local authorities that will enable them to implement this duty effectively?

No

By conflicting with other relevant guidance and guidelines such as the EHE Guidelines, signposts, even where they are included, can only serve to confuse.

There is no mention of Section 9 of the 1996 Education Act and the qualified nature of "suitability" of education (ie: appropriate to age, ability and aptitude and any SENs) is not sufficiently stressed.

There is insufficient reference to Data Protection legislation concerning proportionate reasons for sharing of information and the need for consent with regard to sharing information.

There is also no mention of home education support groups such as Action for Home Education, or Education Otherwise.

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8 Beyond the publication of the guidance, what would be the most effective means of communicating the importance of implementing the new duty, and the processes that will help its implementation, to professionals working with children?

Answer:

Training for LAs in the nature of home education and the importance, not only for home educators but also for the LAs themselves, of the nuances of the legislation that concerns it. This training could be offered by various home education organisations and individuals.


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9 Have you any details of good practice that would be useful to include in the final version of the 'guidance'?

No

Comments:

Given that LAs have not yet been given the chance to implement the 2007 Guidance on CME, it is hard to find evidence of good practice in this regard. Generally, however, LAs who observe the thrust of the Guidelines on Elective Home Education have established good working relationships with their home educators.

These proposed guidelines, should they be implemented, are likely to result in significantly enhanced conflict between HEors and LAs.

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10 Did you find the draft guidance clear, unambiguous and easy to follow?

No

Comments:

Absolutely not, for the multitude of reasons stated above.


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11 a) We have developed standard data definitions at Appendix 1 of the guidance. These were developed in consultation with several local authorities. Do you agree with these definitions?

Disagree

Comments:

I disagree with these data definitions because they contain a double standard (which is not reflected in law, ie: Section 437 Ed Act 1996...see below) and they make it clear that the CME should be all about this double standard, for whilst school children are deemed to be not missing from education because their place of education is known, home educators are only so assessed if they not only provide information on the place of education, but also, in effect, that this education is suitable. I say "in effect" because these data definitions will encourage LAs not just to assess home educating families who do not appear to be providing a suitable education but to assess all home educating families for suitability of education, however they at first present.

It is unclear that this form of discrimination against a particular group is at all warranted.

There is also a double standard when it comes to the *consequences* of failing to provide a suitable education. Were a universal standard to be applied, all parents should be answerable should they fail to provide a suitable education, wherever their children are educated. Indeed certain sections of education law seem to suggest that this should be the case. Section 437 (Education Act 1996) states that: "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" and yet the CME fails to observe this duty towards schooling families in any meaningful form.

If the CME assessment is about LAs taking an active role in assessing for suitability, whether or not there is any reason to think that there is a problem, LAs should assess all schooling families for suitability of educational provision and hold them to account when their child is being failed by schools. Parents may then make claims upon the school. There should be no hiding the facts of the matter. Any cases of provision of an unsuitable education shouldn't just be filed away in a poor Ofsted report. Indeed it is actually the case that tens of thousands of children in schools with glowing Ofsted reports are missing a "suitable" education and schooling parents and schools are never held to account in any shape or form.

However, this proposed version of CME and the data definitions make it clear that certain sections of the population (ie: the home education population) will be required to be subjected to a far higher standard of scrutiny simply on the basis of the place of their education. This is a completely undeserved form of discrimination and will bring about strong resistance from the families in the home education community who by a great majority, just want to be left alone to get on with the real task in hand, ie: educating their children and not having to keep responding seemingly endlessly to their LAs and to the state.

Of course, this is putting aside the problem that the data definitions (and the CME guidance in general) does either nothing or next to nothing to address the problem of what is actually meant by a "suitable education". Despite legislative attempts at definitions, the suitability of an education will forever remain a highly subjective assessment, that will nonetheless almost certainly be better made by those who have intimate knowledge of the situation. Yet officials who can barely know a child (if a family is to have any privacy at all), or who may have no expertise in the relevant learning styles of the child, would, under this version of guidance, be expected to assess families for suitability of educational provision as if this highly contentious area may be simply appendended to the argument and will not be potentially hugely damaging for children.

It would be far more sensible if the guidance were to be about finding out which educational establishments children attend, in which case all references to suitability of education, both in the guidance and in the data definitions should be removed. In this situation, the thrust of the guidance should only be about determining the place of education and this should be reflected in the data definitions. When the place of education is known, then these children (including home educated children) should not be included in a list of children missing education.

11 b) If not, what amendments would you suggest and why?

Answer: See last paragraph in answer to 11a. Failing that, I would suggest you stick with the Feb 2007 version, with due regard for the EHE Guidelines and wait to see if this works when LAs have the tools they need at their disposal. To go ahead with this version would cause far more problems than it solves. See arguments above.

However, even with the Feb 2007 version of guidance, various paragraphs should be further clarified, eg: Section 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."

It should be clarified here that monitoring of home education is only necessary when there is due cause to suspect that a suitable education (according to AAA and SEN of child and according to parental wishes) is not being provided.

There are also sufficient safeguarding roles written into the EHE guidelines. If an LA has reason to suspect that a home educating family has a problem either with educational provision or with another kind of welfare issue, (such as a risk of forced marriage), they do already have perfectly sufficient legal powers to intervene. There is no need to tinker further with guidance, but rather a need to apply the 2007 CME guidance properly.

The DCSF should not implement the above proposed guidance for many reasons, but perhaps most importantly because in pushing one piece of legislation to it's extreme interpretation, (ie: section 436A 1996 Education Act), the guidance will, in the process, override the principle of parental responsibility for the education (Section 7 1996 Education Act).