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Are Home Educators Worrying About Nothing?

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Schedule 1 of the Children Schools and Families Bill proposes a huge number of changes to the law on home education.

Children Schools and Families Bill Schedule 1

A group of home educating parents went to see their Labour MP recently. The home educators believed that the new law would mean they had to apply for permission to home educate and that approval was in the gift of the local authority. Home educators believed that they would have to change the way they home educated in order to gain approval from the authority. Home educators thought that they would have no choice but to agree to have local authority inspectors in their home and that they would have no choice but to agree to have local authority inspectors question and test their children. Home educators were convinced that children could be sent to school against their will.

The Labour MP on the other hand believed that the only grounds for refusing permission to home educate would be on safeguarding grounds and that there was nothing in the Children Schools and Families Bill which need alarm or distress decent committed engaged parents who were providing their children with education. The MP believed that interviews with children would only go ahead where parents and children agreed and that families would be allowed to refuse.

How is it possible for home educating parents to arrive at one conclusion and for an MP to arrive at such a different conclusion? Are home educators worrying about nothing? Are home educators making too many wild speculations? How exactly did home educators arrive at their worst-case scenario interpretation of the Government's proposals? Where is the evidence?

All citations come from the Children Schools and Families Bill

We have read the Badman Review and all associated paperwork plus all subsequent Impact Assessments, Explanatory Notes, Research Papers, Briefing Documents, Policy Statements, parliamentary debates and Ministerial letters on the measures contained in the Children Schools and Families Bill. We have made a close study of the Select Committee Report and the Public Bill Committee proceedings and we are aware of all the relevant amendments which the Bill Committee has to consider before the close of business on Thursday February 4th.

However, what we are focusing on exclusively here is the original text of the Children Schools and Families Bill as currently printed. The original text of the Bill has not yet been amended or altered in any way. Every word of the original text still stands.

Government Review of Suitable Education

The only exception we make to limiting ourselves to the original text of the Bill is in reference to the forthcoming review of suitable education since this has been officially confirmed at Ministerial level.

Regulation-making powers

Our examination of the text of the original Bill will necessarily include the many references made in the Bill to "regulations". Regulation-making powers in a Government Bill are a way of enabling future Governments to introduce secondary legislation outside the scrutiny of parliament. Schedule 1 contains regulation-making powers in 19A, 19B, 19C, 19F, 19G and 19H. As Lord Lucas pointed out about the Bill last November: "In its current form it is a skeleton exposing home educators and their children to the unknown because so much will depend on how the regulations are written".

Nevertheless, speculation about what the regulations might say can only be speculation which is why we now turn to the text of the Bill.

What does the Children Schools and Families Bill actually say?

The Government's proposals are set out in Schedule 1 of the Children Schools and Families Bill which would amend section 19 of the Education Act 1996 as follows:

  • Parent has to make application for child to be admitted to the home education register 19B (1)(a)
  • Family who refuse access to child may be deemed to be providing inadequate information 19E (3) and 19F (1) (e)
  • Parents who refuse to meet with the authority may be deemed to be providing inadequate information 19E (3) and 19F (1) (e)
  • Family who refuse access to home may be deemed to be providing inadequate information 19E (3) and 19F (1) (e)
  • Local authority given discretionary powers to determine whether parents' written statement is adequate or accurate and Government given power to add more requirements by regulation 19B (8), (9) and (10) and 19C and 19F (1) (b)
  • Local authority allowed to refuse registration on grounds of inadequate information 19F (1)
  • Local authority allowed to revoke registration on grounds of inadequate information 19F (1) (b)
  • Local authority allowed to serve School Attendance Order if registration is refused 19I 5
  • Parent who does not comply with School Attendance Order is guilty of an offence 19I 9
  • Evidence of home education not admissible if local authority has rejected or revoked registration 19I 5 (6)
  • Local authority given discretionary powers to accept or refuse subsequent applications for registration 19C (5) and 19C (6)
What does it mean when the law says "may": the difference between power and duty

In one sense the MP is correct. As the Bill stands at present, the only clear statement about refusing to register a child is in 19B (4) and 19B (7).

19B (4) If the authority consider the child is within subsection (7), they shall not enter the child's details on their home education register.

19B (7) A child is within this subsection if the authority consider that it would be harmful to the child's welfare for the child-

(a) to become a home-educated child, or

(b) in the case of a child who is already a home-educated child, to continue to be a home educated child.

Here the authority has a clear duty to refuse to register the child. Except of course that the phrase "would be harmful to the child's welfare" has caused enormous controversy because of the scope for personal prejudice in arriving at such a determination and the inevitability of legal challenge and backlash from home educating families.

Postcode Lottery

However, everything else concerning registration uses the word "may", which is to say that the local authority may or may not refuse registration. This will immediately give a huge amount of discretion to individuals within local authorities and will mean that what might be acceptable to an inspector in one area might not be acceptable to an inspector in another area.

As outlined above, there are many reasons why the local authority would be allowed to refuse to enter the child's name on the home education register. The local authority would also be allowed to remove the child's name from the register at any point during the year and at the end of the year the registration would in any event expire automatically.

As the Bill currently stands, following provision made in 19C (6) and 19H (1) of Schedule 1, a family whose application was turned down by one authority could automatically be refused permission even to make an application for registration elsewhere.

Future regulation = the unknown

Home educators are not sanguine about the prospects of fair and equal treatment from all local authority officers, nor of acceptance of diversity from all local authority officers. It is also widely believed that there is insufficient knowledge of special needs in relation to home educated children, particularly children on the autistic spectrum.

However, the postcode lottery with regard to inspectors' experience and sensitivity is only one factor contributing to the uncertainty and pessimism which is rife amongst home educators.

Much of the current debate and speculation centres on the fact that Schedule 1 of the Children Schools and Families Bill contains extensive and wide-ranging powers for future Governments to make regulations about everything from local authority duties in regard to the register; the way in which parents should apply for the child to be registered; the steps to be taken by an authority "in connection with an application for the child's details to be entered on the home education register"; and matters which may or may not be taken into account in connection with registration.

One particularly controversial measure contained in the Bill is for all decisions about the scope, remit and contents of the educational statement required for successful registration to be determined by regulation. On the one hand, home educators are given no information about the requirements of the educational statement but on the other hand, they read in the Bill that "inadequate" information may be grounds for refusing registration.

It is also of great concern to home educating families that the length of time a family must wait before applying for registration after an application has been turned down is to be subject to future regulation. It is difficult for home educators to believe that their children's rights will be protected since 19G effectively indicates that all decisions about the appeals process will be made after the Bill becomes law.

Conclusion

We began by asking how it was possible for home educators and MPs to have such fundamentally different beliefs about what the Government is proposing. We considered whether perhaps home educators were being unduly pessimistic. We weighed up the evidence from the test of the Children Schools and Families Bill. We noted the distinction in the Bill between powers and duties, between what the authority must do and what the authority may do. We observed the ability of authorities to wield control over home educating families as a result of the power given in 19F to revoke registration on the grounds of "inadequate information".

We undertook a brief survey of the further regulation-making powers over home education which the Government seeks to introduce by means of the Children Schools and Families Bill. We concur with Lord Lucas' position about the Bill that "In its current form it is a skeleton exposing home educators and their children to the unknown because so much will depend on how the regulations are written"

.

By way of conclusion, we returned to our original question about whether home educators are being unduly pessimistic. We have considered the powers which would be available to local authorities as soon as this Bill passed into law and the wide-ranging powers which would be available for future Governments to regulate home education via secondary legislation outside parliament. We therefore judge that there are no valid grounds for optimism.

Links

Children Schools and Families Bill Schedule 1


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