Right now, unbeknownst to most of us, the future of education in England is in jeopardy. By rights, we should all be worried, yet only a few people are aware of this threat, which isn't altogether surprising given that this menace only becomes manifest after one's wrapped one's brain round a complex interplay of various tiny bits of education law as interpreted in an obscure bit of draft guidance that only appears to affect a tiny minority of educators.
But it does matter. It matters because if we don't get this right, the local education officer rather than the family will, on account of a potentially strong interpretation of s436A Education Act 1996 (inserted from 2006 Education and Inspections Act) ie: the duty to find children missing a suitable education, be given the duty, via data trawls, chats to neighbours, relatives etc to find AND to assess the suitability of educational provision of every child in the land and will therefore be the one who in effect decides the limits of a suitable education.
I argued before that this needn't be a problem. What does it matter if a local authority officer rules out a particular form of education when there are so many other variants from which to choose? Well, after thinking about it in the cold light of directly being threatened with such a situation, I've changed my mind. It actually does matter. It matters A LOT. It matters precisely because the LA officer may rule out the only form of education that actually does fulfil the parent's duty to cause a child to receive a suitable education, as required of parents in Section 7 of the Education Act 1996.
Section 7 requires a parent to make sure that their educational provision is suited to the ability and aptitude of the child. The provision of a suitable education that is genuinely suited to a child's ability and aptitude requires really knowing and understanding the abilities and aptitudes of that particular child. And here's the thing - drum roll, big news: it is parents who actually really know their children. The local authority officer, on the other hand, only sees a child at the very most three times a year and he never gets to see those moments when mum and dad had to drag a screaming, school phobic child out from under the bed, and force them out the house, bloodied hands grasping at the door frame. He doesn't get to see what happens when a parent tried to force an emotionally shattered child to do their maths homework. He also doesn't get to see how well the child learns when pottering in the garden, when speaking with their friends or when searching for YouTube videos that answer the particular question the child has of a moment, yet the parent can see all of this.
Understanding what sort of educational provision would genuinely suit a child may therefore be far harder for an LA officer to understand than for family. They simply don't have the background information on which to base this assessment.
It may be made even harder for LA officers because they come armed with a bundle of preconceptions about what they should be looking for in terms of educational provision. The words at the top of the relevant bit of guidance which stipulate that the government want:
"to ensure all young people receive world-class education which allows them to realise their full potential, regardless of background, in a safe environment"
will be ringing in their ears. From the same Guidance at section 9, they will also be remembering:
"... home education provision need not follow specific examples such as the National Curriculum, or the requirement in academy funding agreements for a ‘broad and balanced’ curriculum, nor the independent school standards prescribed by the Secretary of State. Conversely, however, if the home education does successfully deliver one or more of those examples then that would constitute strong evidence that it was ‘suitable’ in terms of s.7".
From this and from the fact that they may well be schoolteachers themselves and therefore thoroughly entrenched in the schooling paradigm, they may conclude that we should forget pottering about in the garden, every child needs to be pushed, pushed, pushed to the absolute maximum of their potential. Forget about aptitude - prioritise ability. If the child seems bright, ignore the fact that they have zero interest in the subject, (a constituent of aptitude), and sit them down with their Kumon maths until they've mastered the outer reaches of algebraic topology. So what if this means discounting the legislative requirement to also attend to the aptitude of the child, since after all, if you do that, you would ignore the capacity that clearly exists in their native smarts.
And yet home educators of long experience know that a lot of pottering really CAN be one of the most successful forms of education around, and this because it facilitates the key relationship between ability and aptitude, ie: that ability is circumscribed by aptitude.
Aptitude is the gatekeeper to ability and the child is the master of aptitude. Key components of aptitude are interest and motivation and a child knows what he is genuinely interested in learning. When he is interested in something and has a capacity to satisfy that interest, he will be learning and learning well. Motivation is key to effective learning and thereby to mastery and purpose as Daniel Pink has long been arguing.
At 6 mins 35 into that animation, Pink says:
"You probably want to do something interesting. Let me get outta your way."
and this is precisely what a lot of experienced home educators have done and they have seen it work! These young people, now grown up and thriving, weren't forced to perform to their obvious abilities in the standard schooling sense. They often spent a lot of time trampolining, seeing their friends, talking with family, playing computer games, dancing, rock climbing, caring for animals, playing guitars, drums, flutes, cellos, and reading and drawing a lot, yet they all ended up doing whatever they wanted to do in life, often displaying a lot of creativity in achieving these ends. A lot of the time, their parents took a step back and let the natural curiosity of the young person direct the educational provision that was offered.
Given that it tallies aptitude with ability, facilitating the pursuit of interests and thereby learning now to learn really does look like the most suitable education around and yet it looks so vastly different to the normal schooling paradigm that it could easily lead to an accusation of educational neglect, but it really isn't and young people have a lot to teach us in this department.
Yet all this could so easily be whisked away on the whim of an LA officer with preconceptions of what an education should look like, thereby removing a family's agency when it comes to determining the nature of a suitable education.
Even if parents provide an education that is nominally within state determined parameters, the responsibility of parents to decide upon the form and content of education would have been removed from them and this applies to every parent in the land. Every parent in the land now no longer has the duty to determine the nature of suitable education. They are merely minions of the state in that they must provide a state approved form of education.
This is hugely significant not only in that it may deprive home educators of a form of education that is actually genuinely suited to their child, but for loads of other reasons too.
There are constitutional reasons why this is a terrible move. OK, the government seems relatively benign now, but families not having a clear right to determine the nature of a suitable education deeply inscribed in the bedrock of our democracy as should be the case according to the spirit of Article 2 Protocol 1 of the ECHR:
“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 in conformity with their own religious and philosophical convictions”
leaves us open to state indoctrination in a way that should not be countenanced in a mature democracy.
Then there is the problem of who is held to account for a failure to provide a suitable education. Should the parent provide a state-mandated education, and yet this fails the child, the child should rightfully no longer feel aggrieved at his parent, since the ultimate responsibility for this determination no longer rests with the parent. Indeed, it may have been that the genuinely suitable education was not available to the parent to provide, given that the state would have prevented him from providing it. The state must therefore rightfully take the blame, and should expect to be held liable for educational failure of all sorts.
The other situation of still holding the parent accountable seems unconscionably unjust. Most bits of satisfactory law hold people to account only when they reliably have agency in the matter, yet in this situation, parents would have no reliable agency at all. Not only are they unable to able to freely determine the nature of a suitable education on account of having this determination removed from them by the state, but they are also incapable of reliably making a child learn, since they, along with everyone else on the planet, cannot open up the head of a child and pour knowledge into it as one would water in to a bucket. The child has the agency here - they must initiate the learning process and no-one else can do this for them. The parent therefore would be in a position of double jeopardy, and in lieu of the child being held responsible for a failure of education, the argument that the state be held responsible since at least they could influence one side of this situation becomes even more transparent.
There are other problems with enacting Children Missing Education more aggressively. Some of these are explained here and can be broadly summarised as causing a problem with how LAs would enact another bit of legislation, ie: s437 . If they have already aggressively checked a family for a suitable education as allowed for in Draft Guidance, how can an LA then go about using the measured processes suggested in s437? These measured processes are vital in that they have preserved educational freedoms in this country for so long. They assume that the state has no business making a judgement on the suitability of education until way down the line when it is clear that the parent is not observing their duty in this regard.
But that isn't the end of it - there are yet more problems with an aggressive broad spectrum state check of educational suitability.
There's the problem that if you do data trawls as is suggested in the Draft Guidance, (page 9), genuinely abusive, neglectful or otherwise troubled families, knowing about data sharing, will not use services at all, thereby rendering those children even more vulnerable. Better to have one statutory service provider knowing and helping and respecting client confidentiality than a whole team of people out there who know nothing of the family at all.
And yet further: in assuming that an aggressive check for suitability under CME applies to all children, LAs will therefore have immediate right to check the safeguarding situation with regard to the families of everyone in the country, since s175 of the Education Act 2002 says this:
"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."
Further, since the Guidance makes it clear that educational neglect could constitute "significant harm" (page 18), of the threshold that could initiate action under s47 of the Children Act 1989,
7.6 A failure to provide suitable education is capable of satisfying the threshold requirement contained in s.31 of the Children Act 1989 that the child is suffering or is likely to suffer significant harm.
it seems that the duty to find children missing a suitable education must therefore become a safeguarding duty which involves a massive surveillance of the home educating population.
Whilst everyone must surely wish for every child in the country to be safe, this initiative is entirely disproportionate as well as wasteful in terms of trying to solve the problem of abuse and must surely represent evidence of mission creep and encroachment upon privacy of families who have done absolutely wrong. Their right to a private life under Article 8 of the HCR can go hang.
We have to get balance in this. We cannot give the state carte blanche to walk in to our houses and inspect our intimate lives (for home education is completely enmeshed in private family life) on the off chance that we might be abusing our children one way or the other. There has to be a balance here for want of losing all rights and effectively living in a police state.
What's more, the country doesn't have the money to waste like this. Social work departments are creaking under the strain, schools are cracking up, the NHS is chronically underfunded. Statutory services can't cope with the at risk children they do know about. We don't have the money to be chasing law abiding citizens around. Spend it where it is really needed.
The way to solve this problem is obvious: use CME as it has been used until recently and as it was originally intended. Assume that when someone says that they are home educating, they are doing so unless there is good reason to believe that this is not so. This should be clearly stated in guidance and not left up to the LAs to invent stuff as they go along, see page 12 of the Draft Guidance as this could lead to all manner of abuses of power, what with LAs having access to legal resources and parents often having next to none.