Current Legislation and Regulation
3.1 As my introductory comments make clear, I am not persuaded that under the current regulatory regime (4) that there is a correct balance between the rights of parents and the rights of the child either to an appropriate education or to be safe from harm. That being said I am not in anyway arguing that elective home education is intrinsically wrong or that within the elective home education community there is not exemplary practice. Indeed, there is a strong argument to commission further research to better inform understanding of “personalisation” as an element of student progression and achievement. I shall return to this issue later.
3.2 The question is simply a matter of balance and securing the right regulatory regime within a framework of legislation that protects the rights of all children, even if in transaction such regulation is only necessary to protect a minority.
3.3 The United Nations Convention on the Rights of the Child (UNCRC) gives children and young people over forty substantive rights which include 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. Article 12 makes clear the responsibility of signatories to give children a voice:
“Parties shall assure to the child who is capable of forming his or her own views the right to express those views freely in all matters affecting the child, the views of the child being given due weight in accordance with the age and maturity of the child.”
Yet under the current legislation and guidance, local authorities have no right of access to the child to determine or ascertain such views.
3.4 Furthermore Article 28 of the UNCRC recognises the right of the child to an education. Education is compulsory in England and it can be provided at school “or otherwise” (5) . 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:
(4) The current legislative and regulatory framework is outlined at Annex E.
(5) Section 7 Education Act 1996 3. Current Legislation and Regulation
“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.”
3.5 The terms “efficient” and “suitable” education are not defined in law, despite the detailed prescription of expectations in schools. Case law (6) 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”.
3.6 This poses a further problem for local authorities charged with a statutory duty under section 437 (1) Education Act 1996 in that they are required to intervene:
“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”.
Additionally local authorities have a duty (7) which requires them to:
….. 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.
(6) 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)
(7) Section 436A Education Act 1996 inserted by section 4(1) Education and Inspections Act 2006
3.7 Within current guidance local authorities are “encouraged to address the situation informally” (8) . Such an approach may or may not be sufficient. How can local authorities know what they don’t know with no means of determining the number of children who are being electively home educated in their area, or the quality of what is provided, without rights of access to the child? For many, perhaps the majority of home educating families, this approach may be sufficient. However, I do not believe that such arrangements are sufficiently robust to protect the rights of all children.
3.8 The European Convention on Human Rights (ECHR) Article 2 of Protocol 1 states: 3.8
“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.”
3.9 This Article is much quoted by home educators in defence of their rights as parents to educate their children as they see fit. However, case law on the ECHR challenges any claim that home education is a fundamental right:
“The second sentence of Article 2 [of Protocol 1] must however be read together with the first which enshrines the right of everyone to education. It is on to this fundamental right that is grafted the right of parents to respect for their religious and philosophical convictions. …Furthermore, respect is only due to convictions on the part of the parents which do not conflict with the fundamental right of the child to education” (9)
And: “The Commission notes that the first sentence of Article 2 of Protocol No 1 .. enshrines the fundamental right of the child to education. This right by its very nature calls for regulation by the State, regulation which may vary in time and place according to the needs and resources of the community and of individuals.” ( 10)
(8) Department for Children, Schools and Families. Elective Home Education Guidelines for Local Authorities (HMSO, 2007)
(9) B.N and S.N v Sweden no 17678/91
(10) Leuffen v Germany no 19844/92
3.10 In addition, in one exchange of emails during the course of this review one parent, in arguing the case for the freedom of home education, cited the words of A.S. Neill:
“The function of the child is to live his own life – not the life that his anxious parents think he should live, nor a life according to the purpose of the educator who thinks he knows best.” (11)
This quotation could equally well be applied to home educating parents as to the schooling system that A.S. Neill challenged with the curriculum and methodology of Summerhill School.
3.11 This review does not argue against the rights of parents as set out in Section 7 of the Education Act 1996 outlined above, nor their deeply held convictions about education. I believe it would be wrong to seek to legislate in pursuit of an all embracing definition of “suitable”. However, such is the demand and complexity of 21 st Century society and employment that further thought should be given to what constitutes an appropriate curriculum within the context of elective home education. Such a curriculum must be sufficiently broad and balanced and relevant to enable young people to make suitable choices about their life and likely future employment.
Article 29 of the UNCRC states that:
“State Parties agree that the education of the child shall be directed to:
(a) The development of the child’s personality, talents and mental and physical abilities to their fullest potential;
(b) The development of respect for human rights and fundamental freedoms, and for the principles enshrined in the Charter of the United Nations;
(c) The development of respect for the child’s parents, his or her own cultural identity, language and values, for the national values of the country in which the child is living, the country from which he or she may originate, and for civilizations different from his or her own;
(d) The preparation of the child for responsible life in a free society, in the spirit of understanding, peace, tolerance, equality of sexes, and friendship among all peoples, ethnic, national and religious groups and persons of indigenous origin;
(e) The development of respect for the natural environment.”
It could be argued that adherence to Article 29 would demand further definition of the term “efficient”.
(11) Neill, A.S. (1960), Summerhill: A Radical Approach to Child Rearing, New York, NY: Hart
3.12 As stated previously, the term “efficient” has been described in case law as an education that “achieves that which it sets out to achieve”. On this basis there surely can be no argument against those who choose to educate their children at home being required to articulate their educational approach or ‘philosophy’, intentions and practice and with their child demonstrate its effectiveness. Indeed many do so already.
This is not an argument for prescription; on the contrary it is simply an argument that the rights of parents are equally matched by the rights of the child and a recognition of the moral imperative of securing education for all children commensurate with their age, aptitude, ability and any special needs.
In the light of the above I therefore make the following recommendations:
That the DCSF establishes a compulsory national registration scheme, locally administered, for all children of statutory school age, who are, or become, electively home educated.
*This scheme should be common to all local authorities.
*Registration should be renewed annually.
*Those who are registering for the first time should be visited by the appropriate local authority officer within one month of registration.
*Local authorities should ensure that all home educated children and young people already known to them are registered on the new scheme within one month of its inception and visited over the following twelve months, following the commencement of any new legislation.
*Provision should be made to allow registration at a local school, children’s centre or other public building as determined by the local authority.
*When parents are thinking of deregistering their child/children from school to home educate, schools should retain such pupils on roll for a period of 20 school days so that should there be a change in circumstances, the child could be readmitted to the school. This period would also allow for the resolution of such difficulties that may have prompted the decision to remove the child from school.
*National guidance should be issued on the requirements of registration and be made available online and at appropriate public buildings. Such guidance must
include a clear statement of the statutory basis of elective home education and the rights and responsibilities of parents.
*At the time of registration parents/carers/guardians must provide a clear statement of their educational approach, intent and desired/planned outcomes for the child over the following twelve months.
*Guidance should be issued to support parents in this task with an opportunity to meet local authority officers to discuss the planned approach to home education and develop the plan before it is finalised. The plan should be finalised within eight weeks of first registration.
*As well as written guidance, support should encompass advice from a range of advisers and organisations, including schools. Schools should regard this support as a part of their commitment to extended schooling.
*Where a child is removed from a school roll to be home educated, the school must provide to the appropriate officer of the local authority a record of the child’s achievement to date and expected achievement, within 20 school days of the registration, together with any other school records.
*Local authorities must ensure that there are mechanisms/systems in place to record and review registrations annually.
That the DCSF review the current statutory definition of what constitutes a “suitable” and “efficient” education in the light of the Rose review of the primary curriculum, and other changes to curriculum assessment and definition throughout statutory school age. Such a review should take account of the five Every Child Matters outcomes determined by the 2004 Children Act, should not be overly prescriptive but be sufficiently defined to secure a broad, balanced, relevant and differentiated curriculum that would allow children and young people educated at home to have sufficient information to enable them to expand their talents and make choices about likely careers. The outcome of this review should further inform guidance on registration.
Home educators should be engaged in this process.