Wednesday, July 08, 2009

Why Badman's Recommendations Will Mean LAs are MORE Liable

The argument that the local authorities need further powers to intrude upon home educating families is premised upon the notion that they already have legal duties towards home educated children that they cannot fulfill through the current legislative powers.

So what are the actual legal duties that the LAs currently have? These responsibilities are enshrined in two different sections of law: the Education and Inspections Act 2006, Section 436a which states that

"(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."

and the Children Act 1989, Section 47:

"(1) Where a local authority—

(a) are informed that a child who lives, or is found, in their area—

(i) is the subject of an emergency protection order; or

(ii) is in police protection; or

(b) have reasonable cause to suspect that a child who lives, or is found, in their area is suffering, or is likely to suffer, significant harm,

the authority shall make, or cause to be made, such enquiries as they consider necessary to enable them to decide whether they should take any action to safeguard or promote the child’s welfare."

Both these pieces of legislation mean that LAs only have responsibilities towards children who are not being successfully home educated or who appear to be being abused. They do not deliver duties to LAs to inspect the successful HE family.

The problem as both the LAs and Mr Badman perceive it, is that they believe that the above sections give them the duty to eliminate any possibility that there could be an abused or unsuitably educated child. Mr Badman wrote:

"3.7 ....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? "

Given that they believe this to be so, it is understandable that they believe that they must inspect all families for there is no way that a LA can know whether a child is being unsuitably educated or abused if they don't go around inspecting every home educating family.

Of course, whilst a complete elimination of the problems of an unsuitable education and abuse would seem to be desirable, one should also consider the likely efficacy and costs of such an ambition:

-Will twice yearly meetings between poorly trained LA officials and children really uncover abuse? Unless the abuse is absolutely obvious, (in which case, it may well be known to the authorities already), we very much doubt it. Plus, it is highly likely that the severely abusive, (should they exist at all), will register with the authority.

- Funds which could have been used to help families already known to be at risk will be wasted inspecting thousands of perfectly well-functioning families.

- There will be plenty of false positive referrals on to SS, so that the ill-trained personnel can cover their backs, with further waste of money, resources and time.

- Thousands of families will suffer the stress and strain of losing their privacy, having the most intimate aspects of their lives pawed over by powerful strangers in the knowledge that their entire way of life may be overturned by someone who hardly knows them.

Not good.

However, this whole miserable scenario would not be based upon a close reading of LA responsibilities. Section 47 doesn't invoke a duty to screen populations for abuse. LAs only have to take action when they have reasonable cause to suspect that there is a problem, in other words, a problem comes to their attention, and Section 436a on the Duty to Identify Children Missing a Suitable Education carries a caveat "so far as it is possible to do so".

We think LA personnel should be alerted to these issues: they actually currently do not have a duty towards an abused or poorly educated child who they don't know about. Under Badman's proposals which will involve the screening of the entire HE population, if they miss a problem, they will have no excuse. The "so far as it is possible to do so" will not bail them out any more and they will be held liable where they would not have been held liable pre-Badman.

Please write to your LA inspector/EWO to point this out to them!


Schuyler said...

Carlotta, I have a question regarding the Children Act 1989. In section 44 subsection 7 of the Children Act it states: ) Where any direction is given under subsection (6)(b), the child may, if he is of sufficient understanding to make an informed decision, refuse to submit to the examination or other assessment.

A child can decide if he or she is to be assessed via subsection 6b the medical or psychiatric examination or other assessment of the child. A child can refuse to be assessed so long as they are of sufficient understanding to make an informed decision. I haven't been keeping up, that much, with the response to the Badman review. But I thought it might be a minor piece in the potential arsenal if the Badman review makes it into law.

Carlotta said...

Hi Schuyler,

That's really interesting. I had taken that section to mean that it only applied to examinations performed in relation to an emergency protection order, but given that even in these circumstances, a child can refuse to be examined, surely this should act as some sort of standard to which all examinations of a child are undertaken.

I certainly think this is worth raising in our arguments. Thanks for pointing it out.