My Final Answer to Question One of the Consultation

Consultation Questions

1 Do you agree that these proposals strike the right balance between the rights of parents to home educate and the rights of children to receive a suitable education?

Agree
Disagree *
Not sure
No Response

Comments: The short answer is "no".

1.1 No, because in a huge majority of home educating families, there is no conflict between these rights. Setting out to screen the entire population of home educators on the basis that a few families fail to balance these rights would actually result in the infringement of far more rights of the child than these proposals would protect. (See section 1.3 for further details.)

1.2 Further, implementation of the registration and monitoring proposals would also be a disproportionate use of the law (see section 1.7) and a waste of money (see section 1.9). It would damage families by intruding on their privacy and by removing their autonomy. It would mean that the law at s7 of the Education Act 1996 (1) would be applied inconsistently, so that home educators would be required to reach a higher standard in law than schooling families (see section 1.4) . It would over-ride principles of good practice and intent as laid out in the Children's Plan, whereby the government requires that agencies work in partnership with parents (see section 2.4) and it would damage the unwritten constitution (see section 1.8) and premises upon which education law in England has been constructed (sections 1.5 and 1.6 below).

1.3 With regard to the issue of children's rights, Graham Badman made the case for intruding upon all families on the basis of a child's right to be heard. He wrote at paragraph 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."

However, in setting out to strike a balance between the above rights, (which in practice it would fail to do - a point to which we shall return later), his review's proposals will in fact override hugely significant UNCRC-mandated (2) rights of the child, and in the process will actually make it more difficult for parents to offer a suitable education.

• The enactment of a universal monitoring scheme involving uninvited intrusion into the home and inspection of the child and his work when there is no reason to suspect that there is a problem and yet with the vague implication that his family may be abusive will violate a child's rights under Article 16 of the UNCRC which states that "No child shall be subjected to arbitrary or unlawful interference with his or her privacy, family, home or correspondence, nor to unlawful attacks on his or her honour and reputation. The child has the right to the protection of the law against such interference or attacks." Given that police and social workers have to argue for rights of entry to homes and have to apply for a warrant to do so in individual cases where there is a reasonable appearance of need, legal precedent suggests that the law recognises that scrutinizing an entire population on the basis that a few members of it will have committed a crime, would represent arbitary interference and thereby an infringement of Article 16.
• The proposal to monitor and inspect HE children will not respect the UNCRC-mandated right of the child to be heard. Article 12: " States 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. " Polls (3) demonstrate that the majority of HE children do not want to see LA personnel. Given that they do not want to meet with a virtual stranger who has the power of judgment over their entire life, and who could put a stop to their way of life and who would offer nothing of value that they couldn't access without this assessment, the child's view does not seem irrational and therefore he should have the right to have this opinion heard and respected.
• The proposal to allow state officials to interview the child alone without any further application to establish proper need would not allow for the UNCRC-mandated right of the child to remain unseparated from his parents. Article 9: "States Parties shall ensure that a child shall not be separated from his or her parents against their will, except when competent authorities subject to judicial review determine, in accordance with applicable law and procedures, that such separation is necessary for the best interests of the child. Such determination may be necessary in a particular case such as one involving abuse or neglect of the child by the parents, or one where the parents are living separately and a decision must be made as to the child's place of residence." It is not clear from the proposals in the Home Education Review how the judgement to see the child alone by the official will be subject to any sort of judicial review process. Instead it looks as if officials are just given the de facto right to use this power as they please, without any necessary due cause, and without being subject to any judicial process such as the requirement to seek a warrant or other form of legal permission.
• The proposal to meet with the child in the process of monitoring his education will violate the child's right to freedom of association as inscribed in Article 15: . "States Parties recognize the rights of the child to freedom of association and to freedom of peaceful assembly. No restrictions may be placed on the exercise of these rights other than those imposed in conformity with the law and which are necessary in a democratic society in the interests of national security or public safety, public order (ordre public), the protection of public health or morals or the protection of the rights and freedoms of others." Please note the AND here. It is necessary that the law is proven to be necessary in the interests here for the protection of the rights and freedoms of others. Given that families where there is absolutely no reason to suspect problems will be intruded upon and inspected, children will be forced without due cause, to associate with people they have not freely chosen to associate with and Article 15 will therefore have been violated.
• The proposal to monitor and inspect will, in the majority of cases, override Article 3 of the UNCRC "In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration." Given that all the above rights of the child will have been violated, and given that there will be no observable benefit to the child to see an LA inspector, his best interests cannot possibly be said to have been served by this intrusion. Consideration must also be given to the fact that state-mandated education and state interference have failed a large number of home educated children, in which case, it seems extremely unlikely that the best interests of these children will be served by having to submit to it all over again.
• Article 5 of the UNCRC: "States Parties shall respect the responsibilities, rights and duties of parents...to provide, in a manner consistent with the evolving capacities of the child, appropriate direction and guidance in the exercise by the child of the rights recognized in the present Convention. " Parents will not be able to give appropriate direction in assisting their child to maintain their rights, because the state will forcibly prevent them from doing so when all the above rights are violated by the state.
  

1.4 Mr Badman's proposals don't just represent a problem for UNCRC-related law. There would be conflicts with current English law too. In English law at s7 of the Education Act 1996 (1), parents are required

"....to cause the child 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."

There is some ambiguity here. Is a child's right to an education all about the parents offering a seemingly suitable education or a genuinely suitable one, a genuinely suitable one being that which means that a suitable education is actually attained?

Given that there are no proposals to subject schooling families to a judgement as to whether they provide a genuinely suitable education, it appears that in this context a "child's right to receive a suitable education" must mean that this right is all about appearances, since the societal norms dictate that by sending their children to school, schooling parents appear to be making suitable provision, whether or not a suitable education is actually attained.

This would make epistemic sense too, since parents may offer an apparently suitable education, and yet their child may resolutely refuse to accept it. Since every act of learning is learner initiated and parents thankfully cannot open up the brains of their progeny and pour knowledge into it as you would pour water into a bucket, it would be wrong for the law to hold parents to account for something over which they have no control.

However, we must accept that a judgement on the apparent suitability of provision is a poor judgement for anything useful since actual educational attainment is often very poorly correlated to apparent suitability of provision. Many children at my own private school were delivered of an education that was routinely described as excellent, and yet they failed educationally, often utterly and miserably. On the other hand, we know of someone who, as a child, was allowed to truant routinely, wandering the bomb sites of Coventry, completely neglected by his parents and who went on to become a university professor of ecology, since his boyhood wanderings resulted in an obsessive interest in the ecology of bomb-sites, then the local woodlands and beyond. Aged 19, he presented himself to a university department with no qualifications to his name, begging them to take him on as an undergraduate. He ended the day accepting the offer of a lectureship.

Between provision and attainment, there is a far greater gap than many people are prepared to countenance, and yet Mr Badman proposes that the state is capable of making the difficult and subjective judgement about suitability of provision.

We should also accept that actually no-one can be sure what "suitable" education provision should really look like, not only for every individual, with all their different quirks and requirements, but also in this age of information. It is quite conceivable, for example, that a child who watches TV all day will end up with a wider range of knowledge than a child who has sat in a classroom all day. We do not really know of what we speak, and yet Mr Badman is asking a bureaucrat who barely knows the child to make this monumentally important and yet hugely tricky call.

Many LA inspectors do not understand that provision that does not fit the schooling model can in fact be highly suitable in that a suitable education is actually attained. Autonomous education can look to the uninitiated or to the rigidly prejudiced, to resemble neglect, (it is not, and differs substantially yet often subtly) and yet it has proved efficacious over and over again. In our area, it has supplied a steady stream of motivated, skilled adults, many of whom had been or would have been woefully failed by standard schooling techniques.

But the difficulty in making subjective judgements about the quality of provision of a suitable education is by no means the end of the problems Mr Badman's proposals to monitor home educators present for English law. From recommendation 7 of his Review:

"That parents be required to allow the child through exhibition or other means to demonstrate both attainment and progress in accord with the statement of intent lodged at the time of registration."

it is clear that Mr Badman interprets a parent's duty to offer a suitable education to mean that a suitable education must be both offered and attained and thereby that home educating parents are actually to be held to a far higher account than schooling parents, being judged not merely on appearance of suitability of provision, but upon demonstration of educational attainment.

This would clearly mean that s7 of the 1996 Education Act (1) would be applied to home educating parents in a different way to schooling parents. HEing parents will be held to far higher account, since if schooling parents were also to be held to account for educational attainment of their children, there would be no end of prosecutions of parents for their children's educational failure, given that so many school children leave school functionally illiterate and innumerate.

It seems that if the review's proposals were to be enacted, s7 would simply have be applied inequitably and yet consistent application of the law is one of the tenets of good legislation. In order to solve this problem of consistent enactment of the law following implementation of the proposals, either every parent in the land should be held to similar account (ie: be shown to be offering their child a genuinely suitable education which results in educational attainment), or when local authorities begin the process of judging HEors' educational attainment, home educators will have to resort to anti-discrimination legislation in order to rectify the inconsistent application of s7, or we will all have to accept that s7 is only about the "appearance" of suitable educational provision and LAs will no longer have to assess the educational attainment of the HE child, and should therefore accept a written philosophy of intent from the HE parent.

1.5 Further on the issue of suitable education, (whether provision or attainment), we need to ask who's task it should be to determine the nature of the appearance of suitable educational provision. Should it be the state, in the form of some nameless bureaucrat who doesn't know the child from Adam, or should it be the parents, who have intimate knowledge of the child's learning style?

We hear in the DCSF's recent full response (4) to the Home Education Review that the government intends to hold a further review upon the nature of suitable education:

"The response also outlines that more work will be done to clarify what is ‘suitable and effective’ home education to support new guidance to local authorities on supporting and monitoring home educators. This will emphasise how local authorities can work with home educating parents to make sure that the needs of all children, including those with special educational needs, can be met in the home environment where appropriate. The guidance will take account of findings from the Lamb Inquiry, to be published later this year."

The DCSF must understand that if they determine the nature of a "suitable" and "effective" home education, the state will have taken over the reins for ensuring educational provision and attainment. Parents could no longer be held responsible for educational failure when they deliver that which the state determines, and the state will be held responsible for educational provision and attainment by families everywhere, in every educational setting.

The law must not be allowed to create a situation whereby a parent is held to task for something over which he has no control since it would be analogous to a general telling his men what to do, and then holding them responsible when they act upon his orders and yet his tactics fail. The general must be held responsible, and parents will go to court to prove that this is how the lines of responsibility are working.

In the real world, it would be far better to acknowledge that the judgement of educational provision and attainment is something that will forever be fraught with difficulty. We can never be certain of what we speak and an obsession with quantifying levels of attainment in the mind of another, as evidenced in school exams and league tables, is about the most pointless task that we currently undertake as a nation. Many of us have exam results that in no way reflected our educational attainment and do not accurately reflect our abilities to function. We hear how year in year out, results from public exams are improving, and yet at the same time, how we now live in a broken society where the youth of today are increasingly feral and irresponsible. The disconnect between so-called educational attainment and the reality of how well people live their lives seems all too obvious.

It would seem wise therefore, to restrict judgements in this area to judgements about the nature of provision. It would also seem wise, given that parents are in a better position to know, and given that the state would otherwise be taking on a task it couldn't possibly manage, to leave this decision to parents, with the state, as now, only stepping in at a later stage when it is very clear that there is good reason for concern.

1.6 Mr. Badman's proposal that the state rubber-stamp all educational provision in this country also has huge constitutional implications as well. Should all educational provision be state-mandated? The answer is clearly no for the foundation stone of a democracy is thereby undermined. A democracy relies for its legitimacy upon the existence of an informed, articulate and free-thinking populace which is capable of holding the state to reasonable account. If children are are only to be taught that which the state permits, the foundation for this democracy is undermined, and the government reduces its legitimacy.

1.7 On the issue of proportionality of the proposals , it is far from clear that there is a real problem that needs to be solved here with regard to the HE community. Poorly informed, subjective judgements, the desire to cover their backs and to make their jobs easier means that LAs have talked up the problems of the education of HE children with these assertions.

Indeed we have recently heard from one LA which constituted a statistical outlier in terms of having a high proportion of children at risk one way or the other that:

"The high percentage of children arose from all the data we have ever had and therefore that includes people that (sic) are now adults. This could have included involvements for other members of the family, referrals where the outcome was no further action, etc."

and when asked for numbers of HE children who do not appear to be receiving a suitable education (5), LAs routinely include families who's educational provision does not fit the school model and yet which is actually suitable, as well as families they have not been able to visit.

It is very clear that significant problems in this area have not been demonstrated in any reliable way whatsoever, and this includes Mr Badman's latest call for evidence which will contain the same problems writ even larger.

One blogger (6) comments on this latest data collection:

"According to Badman, 0.4% of home educating children have child protection plans, meaning that 99.6% are not unsafe. Does such a small proportion as this make a multimillion pound intervention proportionate or desirable, especially as it’s only point two on one percentage point lower than for all children in the 74 local authorities?"

Without there being a clearly established need for them in terms of protecting children's rights, the Badman proposals will nonetheless vitiate the rights of the parents to home educate since parents will no longer be able to determine the nature of a suitable education. They will create a situation where parents are to be judged upon something (ie: their child's educational attainment) over which they have no control, firstly because they cannot any more freely decide upon the nature of suitable provision, and secondly because they cannot do the impossible and open the brains of their children to pour knowledge into it. Judging someone for something over which they have no control is a quick way to render a person either very, very angry and litigious or utterly hopeless, a position of learned helplessness which will be hugely damaging for families. In both these situations, it is clear that the state, rather than solving the problem of abuse, is in fact perpetrating it.

1.8 The Badman proposal to monitor will also destroy another foundation of democracy: that families may be able to freely decide upon and work towards their own ambitions. The freedom to HE law springs almost as a side effect of the way legislation has been written in order to reflect the fact that the autonomy of the individual and the family unit is respected. If you destroy the autonomy of HEors to decide their ambitions for themselves and the freedom to decide upon the nature of a suitable education, you would thereby destroy the foundation stone of democracy and yet the implementation of Badman's proposals to monitor would do just that. The reason for this is that under s13A and s175 of the Education and Inspections Act 2006, state employees have, in the course of their other duties to promote educational attainment and the safety and welfare, including the five ambitions of the ECM and to do this with individual families.

When the first guidance on the duty to Identify Children Missing an Education was written, home educators were explicitly excluded from its reach, which meant that HEors wouldn't routinely be subject to inspection and therefore for having their ambitions determined for them. Under Badman's recommendation to monitor, this would change. With its implementation, all families will now come into contact with state employees, and the symbolic as well as functional aspect of the law which represented the freedom for a person and family to determine their own ambitions will go. We will all have to dance to the state's tune, and woe betide anyone who doesn't. The state will have become well and truly the parent of first resort, and we will hold it responsible when it makes a balls of it.

In the previous consultation on light touch changes in 2007, Lord Adonis, after consulting with his legal department, clearly appreciated the difficulties that monitoring and inspection of home educators represents, (7) both in their practical application and in their implications for the law and the constitution. It is essential that the government revisit his remarks so that they be reminded that the problems listed above must be taken seriously by them.

At a time when many educationalists are realising the value of parental involvement in education, the authority of home educating parents will be severely undermined and the education of children will doubtlessly suffer, and indeed has done so already in some HE households where parents are already preparing for registration with LAs whose inspectors are known to prefer a schooling style of home education.

1.9 Local authorities should also be aware that they face a practical difficulty with the funding of the Review's proposals. There will not be enough money in most LAs to do this job universally, and yet given all the new powers that LAs will have delivered to them, they will be held to more, not less account. They are likely to find themselves with even fewer excuses when faced with a Serious Case Review.

(1) Education Act 1996 s7
http://www.opsi.gov.uk/acts/acts1996/ukpga_19960056_en_2#pt1-ch1-pb3-l1g7

(2). UNCRC: http://www.crin.org/docs/resources/treaties/uncrc.asp#

(3) Poll results on views of home educated children re local authority inspection: http://daretoknowblog.blogspot.com/2009/03/results-of-poll.html

(4) DCSF's full response to the Home Education Review
http://www.dcsf.gov.uk/news/content.cfm?landing=diana_johnson_announces_new_support_package_for_home_educating_families&type=1

(5) Figures on LAs concerns over educational provision, from FOIs:
http://tinyurl.com/mq25xg

(5) Lord Adonis on the wisdom of legislation as it is currently constructed:
http://daretoknowblog.blogspot.com/2006/10/lord-adonis-on-fourfold-foundation.html

(6) Staffordshire.
http://maire-staffordshire.blogspot.com/2009/10/more-damned-statistics.html

(7) Figures on LAs concerns over educational provision, from FOIs:
http://tinyurl.com/mq25xg