CSF Bill – Summary of Home Education Provisions and Their Impact

Huge thanks are due to two home educating parents, a lawyer and a social worker, who analyse the impact of the home education provisions in the Children, Schools and Families Bill as below. They show that the provisions directly contradict government legislation and stated policy, transfer responsibilities for raising children to the state, and in the process utterly fail to consider the actual needs of the child. They also demonstrate that government claims that the provisions are "light touch" or about support are complete tosh.

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Schedule 1 contravenes two of the fundamental principles of the Children's Plan: "Launching Brighter Futures", which was launched by the government in December 2007. These are:

• Government does not bring up children – parents do – so government needs to do more to back parents and families.

• Services need to be shaped by and responsive to children, young people and families, not designed around professional boundaries.

GENERAL FEATURES OF SCHEDULE 1

Under Schedule 1 to the Children, Schools and Families Bill (Schedule 1) local authorities will have a duty to maintain a register of all home educated children within their area. This duty to keep a register will give local authorities the power to refuse parents permission to home educate, and to curtail the practice of home education, without regard to the education being
provided and without regard for the best interests of the child.

Home educating parents will not have an affirmative duty to register their children, but a local authority's first step can be to serve a School Attendance Order on any unregistered home educated child. Local authorities will have many powers to refuse or revoke registration, and then issue a School Attendance Order because of the unregistered status that they have thus created. Parents who do not comply with a School Attendance Order will be guilty of a criminal offence. Parents served with such an order will no longer be able to use the defence that they are providing a suitable education.

Under Section 7 of the Education Act 1996, it is the parents' duty, not the local authority's, to ensure that children receive a suitable education. Parents may choose to provide that education "otherwise" rather than by delegating that duty to a school. Schedule 1 imposes constraints on how parents exercise this duty, should they choose to educate their children at home.

Schedule 1 is inconsistent with the Children's Plan and the Children Acts, favours administrative protocol over parents' freedom to choose the form of education for their children, and represents a shift in power from families to civil servants.

LOCAL AUTHORITY POWERS EXTENDED

Schedule 1 will give local authorities extensive powers to refuse or revoke registration. They may refuse or revoke registration:

• If a parent does not immediately apply for registration, even though there is no legal requirement for them to do so.
• If a parent does not submit a plan for the next year's education on time, or in sufficient detail, or in the authority's designated format.
• If a parent deviates from the educational plan that they have provided to the local authority, even if by doing so they have improved the education being provided.
• If a family's circumstances change during the year. The local authority might, e.g., decide it is a material change if a child is found to have special needs, or if a family changed their educational approach to one that was more workable or effective.
• If an authority, or any other authority in England has ever in the past denied an application to register a child.
• If parents object to the local authority entering their home on a routine visit.
• If parents object to the local authority questioning their child with no parent or carer present. Schedule 1 gives parents the right to object to their child being questioned alone, but then permits registration to be refused or revoked if they do so.
• If the local authority determines that the parents are demonstrating a "failure to cooperate" with any aspect of the local authority's monitoring process.
• If registration lapses, which happens automatically after one year.
• If a parent applies to register in order to stop the school attendance order process, the process stops. However, the LA can then refuse to enter the child onto the home education register, and serve another School Attendance Order.

In addition, the Secretary of State will be empowered to impose further regulations and technical requirements, without parliamentary debate, and thus will be able to set even more conditions upon parents' freedom to home educate.

SCHEDULE 1 AND THE CHILDREN'S PLAN

Schedule 1 contravenes two of the fundamental principles of Children's Plan: Launching Brighter Futures, which was launched by the government in December 2007. These are:

• Government does not bring up children – parents do – so government needs to do
more to back parents and families.

• Services need to be shaped by and responsive to children, young people and
families, not designed around professional boundaries.

However, under the terms of Schedule 1:

• Regulations will be issued providing for a right of appeal. Therefore the appeal process that is created will not be subjected to Parliamentary scrutiny to see if it is fair, impartial and just.
• The local authority will be able to revoke registration if it considers that the education being provided is not suitable. It will also be able to refuse or revoke registration if the parents violate a number of administrative protocols, regardless of whether the education being provided is suitable or not. The net effect will be to make administrative procedures central to a local authority's consideration, not the needs of the child.
• There is no statutory requirement for the local authority to consider whether or not it is acting in the best interests of the child.
• There is no general requirement for the local authority to consider the suitability of the education being provided, although suitability underpins parents' right to choose to educate their children otherwise than at school. Indeed, local authorities are expressly prohibited from considering the actual education in deciding whether to issue a School Attendance Order.
• There is no requirement for the local authority to work in partnership with home educating families to improve the education being provided if there are concerns, as opposed to ordering the children to attend school.
• There is no assertion or recognition that the parents are responsible for the education of their child.
• There is no requirement for local authorities to provide any services or resources for home educating families.

SCHEDULE 1 AND THE EDUCATION ACT 1996

Schedule 1 is inconsistent with the spirit and nature of the Education Act 1996 thus:

• There is no explicit assertion that it is the duty of parents to educate their children either by regular attendance at school or otherwise. Instead there is a diminution of the freedom and powers that parents have to exercise their duty by choosing to home educate.
• Local authorities are not required to consider the suitability of the education being provided whenever they consider refusing or revoking registration, and are instructed not to consider it when they issue a School Attendance Order. They are granted broad powers to refuse permission to home educate based only on whether administrative procedures have been followed.
• The issue of suitability of the education parents provide to their children is removed from judicial consideration. Courts instead are directed to enforce a School Attendance Order against any unregistered home educated child.

SCHEDULE 1 AND THE CHILDREN ACT 1989

Schedule 1 is inconsistent with the spirit and nature of the Children Act thus:

• There is no requirement for the local authority to consider the needs, welfare and interests of the child as paramount.
• There is no recognition of the importance of family life to the welfare of a child.
• There is no requirement for the local authority to work in partnership with home educating families.
• There is no requirement for the local authority to consider the needs of the child with regards to race, culture, religion, gender, disability, or special needs, or any other factors that may be relevant to the well-being of the child.
• There is no affirmation of the "No Order" principle, that an order should only be sought as a last resort.
• The consideration for the welfare of the child is poorly defined or absent. This is inconsistent with the welfare checklist contained with the 1989 Children Act and with the other acts that shape children's services.

The authority-centred focus of Schedule 1 marks a paradigm shift from the child-centred, family-focused acts and policies that sprang from and were shaped by the Children Act 1989 (Every Child Matters; the Adoption Act; the Children Act 2004; the Leaving Care Act; the Children's Plan).

SUMMARY

The powers enshrined in Schedule 1:

• Curtail the freedom of parents to educate their children otherwise than at school.
• Are inconsistent with the Children Acts.
• Are inconsistent with the Children's Plan.
• Create a conflict between the local authority and parents in who is ultimately responsible for the provision of education, and who is answerable to whom.
• Represent a shift in power from families to civil servants.

Betsy Anderson; Imran Shah. 31 Dec 2009

For additional detail or reference to specific provisions of Schedule 1 to the CSF Bill, see the in-depth analysis of Schedule 1 available here.