Monday, June 01, 2009

The Current Legal Situation in England

Legal comment:

"The Education Act 1996 makes it clear in Section 7 that it is the responsibility (duty) of each parent to ensure that their child receives a suitable education, which is one defined in the Education Act (and those who say it is not defined do not appear to be right) as an efficient full-time education suitable to the child’s age, ability, aptitude and any SEN. Thus if a child is not being educated (whether at school or otherwise) the person responsible is the child’s parent and it is the parent who has to take action to correct that.

The attention being focussed on HEors to educate to a high standard seems to overlook that when schools fail (as they do frequently according to the statistics available), the parents also fail to comply with their s7 duty. If HEors are being taken to task, why aren’t parents of children at school? We ought at every opportunity to drop it into the ear of anyone and everyone from the LA.

For example, if the LA does say that welfare involves education, then they need to be asked what they are doing about all the children who are failing at school? If they say that that is a matter for the school, they need to think again as it in fact involves every parent of such a child and what they are doing to ensure their child’s education? To be consistent they have to go and terrorise them too.

They also needs to consider what “welfare” means and what the LA remedies are if a child’s ‘welfare’ is not as he subjectively would wish it to be. What it is not is a consideration that a child might be better off if it were in a different environment, otherwise all children would be fostered by rich people and those who could not provide that lavishment would be childless. So welfare really cannot be a comparison with something “better”, it has to be a failing, a parent is failing to do something to an unacceptable standard, whatever that is decided to be. Similarly, it does not matter if it is thought by someone that a child would get a better education in school, if the education they are getting complies with s7.

At the moment, the law only sanctions any interference in family life if a child is at risk of significant harm and then only if there are reasonable grounds for such a belief, in other words a child needs to be protected from her parents.

If the LA thinks that the 5 ECM outcomes are not being achieved, but that the child is not at risk of significant harm, they are not in the ball-park of interference IMHO. There is no duty on parents to provide the 5 ESM outcomes. We need to resist the, “well every parent would want that for their child” because that is an emotive argument which distracts from the strict legal position and from the government’s much mouthed platitude (from their position) that it is parents not governments who bring up children.

The only duties with regard to an ECM outcome that are placed on the LA are set out in the Children Act 2004. s10 which requires that each children’s services authority (LAs) in England must make arrangements to promote co-operation with specified other official bodies (which do not include parents, it also says that in considering this they have to have regard to the importance of parents), such arrangements being with a view to improving the well-being of children. S11 requires children’s services authorities to make arrangements for ensuring that their functions are discharged having regard to the need to safeguard and promote the welfare of children.

Sections 11 (3) makes it clear that their provisions do not apply to education as Section 175 of the Education Act 2002 applies:

"s175 Duties of LEAs and governing bodies in relation to welfare of children

(1) A local education authority shall make arrangements for ensuring that the 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."

If therefore the LA official is carrying out a function of the LA as a local education authority, any duty he has is only a duty imposed by s175 Ed Act 2002 and cannot be under the Children Act 2004. So in that sense “welfare” does not include education, however of course, s175 does relate to “safeguarding and promoting welfare”.

In England, the guidance that has been issued is the Elective Home Education Guidelines for Local Authorities. So to deal with the position in England, paragraph 2.12 of the Elective Home Education Guidelines for Local Authorities, which states the position about s175 quite clearly.

“Section 175(1) does not extend local authorities’ functions. It does not, for example, give local authorities powers to enter the homes of, or otherwise see, children for the purposes of monitoring the provision of elective home education.”

Further clarification of the powers of the LA is set out in the following paragraphs

“2.14 Section 11 of the 2004 Act sets out the arrangements to safeguard and promote the welfare of children. However, this section does not place any additional duties or responsibilities on local authorities over and above section 175(1) of the Education Act 2002. Statutory Guidance on Making Arrangements to Safeguard and Promote the Welfare of Children under section 11 of the Children Act 2004 has been updated and published in April 2007.

2.15 As outlined above, local authorities have general duties to make arrangements to safeguard and promote the welfare of children (section 175 Education Act 2002 in relation to their functions as a local authority and for other functions in sections 10 and 11 of the Children Act 2004). These powers allow local authorities to insist on seeing children in order to enquire about their welfare where there are grounds for concern (sections 17 and 47 of the Children Act 1989). However, such powers do not bestow on local authorities the ability to see and question children subject to elective home education in order to establish whether they are receiving a suitable education.”

Para 2.15 makes it clear that the only “right” to see the child is if grounds already exist for concern. In fact the duties and powers under s17 and s47 Children Act 1989 require more than simple “concern”. S17 places a duty to provide services for children in need of them. S47 places a duty to investigate where the LA has “reasonable cause to suspect that a child who lives, or is found, in their area is suffering, or is likely to suffer, significant harm” in which case, but not unless, s47 empowers the LA to take all reasonably practicable steps to have access to the child.

Two points need to be made about s175 Ed Act 2002. The duty is “with a view to safeguarding and promoting welfare”; is it a duty to safeguard (that is by itself) and a duty to promote welfare or a duty to safeguard welfare and promote welfare? The language used is capable of either construction but a court might well decide that it means the latter. Until it does, I see no reason for us not to say that the only duty with regard to welfare is to “promote” it, that is not to ensure a child’s welfare unless grounds exist to believe that she is at risk of significant harm.

The upshot of all that is that the LA only has the right of access to a child if that there is reasonable cause to suspect that the child is suffering, or is likely to suffer significant harm. Badman is recommending that that be extended for HE children.

So to return to education and not welfare, if a parent does not ensure a suitable education, whether at school or not, the local authority has power to remedy the position in accordance with s437 Ed Act 1996. Under that provision the LA has the power to issue a school attendance order, which requires that a parent register their child at a school. Once the parent has registered the child, the parent’s duty is (additionally to s7) to ensure that the child attend at the school regularly (every day) and failure to ensure that is an offence.

Before the LA can issue a school attendance order it has to come to the conclusion (in the words of s437(1)) that “it appears that no suitable education is being received” by the child “either by regular attendance at school or otherwise”. In Phillips v Brown (a case in 1980) Lord Justice Donaldson, (who later became Lord Donaldson) ruled that the LA had a duty to make enquiry to see what education was being provided in order to see “if it appears that no suitable education is being received”. Parents, he said, did not have to reply, but if they did not, the LA could assume that there was an appearance of no suitable education and move on to the next part of s437 which entitled them to “serve a notice in writing on the parent requiring him to satisfy them within the period specified in the notice [which has to be not less than 15 days] that the child is receiving such education.” If they could not do so the LA can move to making a school attendance order.

All this has been complicated a bit by the insertion of s436A into the Education Act 1996 on 27 February 2007. This places a duty on LAs to identify children missing education and it provides

"(1)A local education authority must make arrangements to enable them to establish (so far as it is possible to do so) the identities of children in their area who are of compulsory school age but

(a) are not registered pupils at a school,

and (b) are not receiving suitable education otherwise than at a school."

LAs have to comply with guidance issued and the first such guidance, issued in Feb 2007, said that this section did not apply to HE children. However, the revised guidance, issued in January this year, makes it clear that this is no longer the case.

Paragraph 92 of the ‘Revised statutory guidance for local authorities in England to identify children not receiving a suitable education’ states:

“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. The Elective Home Education Guidelines for Local Authorities make clear that parents who home educate may take a number of equally valid approaches to educational provision for their children.”

Paragraph 87 makes it clear how LAs are being told to do this :

“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.”

Thus it seems, the duty placed on LAs under s436A is required now by guidance to be a duty to locate and then, following the procedure set out in the EHE guidelines, to enquire about the educational provision.

What is undetermined is whether, until the LA “approves” the education, the child is considered as “missing education”. s436A could be seen as reversing the burden imposed in s437 in negative terms on the LA, alternatively it probably does no more than put into statutory form the duty Donaldson LJ established in Phillips v Brown. In practical terms I should have thought that the interpretation which will be put on s436A is that the LA has a duty to locate all children not on a school roll and establish where they are being educated; if they are being electively home educated, the LA will have the duty to investigate that provision under its powers in s437 and in accordance with the EHE guidelines.

The effect of s175 Ed Act 2002 is that when the LEA is carrying out its functions under s436A and s437 it has to do so with a view to safeguarding and promoting the welfare of a child. As the guidance confirms this section applies to functions the LA already has and does not create any new ones. It is how the LA should carry out the functions that it has and so compliments and cannot supercede any function or create any new function.

As such it has no reference to s7 which only places duties on parents.

It does impact on s437 however but not, as the guidance emphasises, so as to permit access to a child. The LA can only require access to a child for whom there is a reasonable suspicion that she is at risk of significant harm as to empower access to all children no matter what would require a specific and new power set out in an Act of Parliament. It cannot be achieved in guidance or indeed in subsidiary legislation such as statutory instruments or other delegated legislation.

The LAS are of course aware that they have to safeguard and promote the welfare of a child at school and if that child is bullied or distressed by being made to attend at school, perhaps the best way of carrying out his duty is to recommend home education. Similarly if a child who is being home educated is being asked questions which are causing distress or is distressed by the prospect of being made to attend at school, that would not promote the child’s welfare. It cuts both ways.

Finally, LAs sometimes say that they have a duty to ascertain the views of children about home ed. This is not correct, there is no such duty. If there were they would have to ask children at
school if they wanted to be educated there. It is parents who decide how children should be educated as a matter of law, see s7. If a child wanted something different, it might well be that a court would decide that if the child was mature enough to decide for herself, her choice would over-ride that of her parents, but that is not to say that it is good for the welfare of a child for the LA to sew the seeds of doubt about the wisdom of her parents in the mind of a child.

The EHE guidelines make the position clear in para 2.16:

Section 53 of the 2004 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. Section 53 does not extend local authorities’ functions. It does not, for example, place an obligation on local authorities to ascertain the child’s wishes about elective home
education as it is not a service provided by the local authority.”"

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