Family Education Trust
Submission to the Home Education Review
1. Do you think the current system for safeguarding children who are educated at home is adequate? Please let us know why you think that.
· Not Sure
· No Response
All children are protected within the same legal framework irrespective of educational setting. We are concerned that the headline given to the press release relating to the home education review, ‘Action to ensure children’s education and welfare’ suggests that specific action is required in relation to home educated children that is not required for children in school. Such an outlook betrays an unwarranted lack of trust in parents to fulfil their legal duties in relation both to the care and education of their children.
Children educated at home will generally receive a greater degree of monitoring and supervision from their parents than children at school receive from their teachers. The question appears to presuppose that home education raises special safeguarding issues. However, there is no more need for a specific safeguarding system for children educated at home than there is need for a specific safeguarding system for children who take private lessons in a foreign language, music or ballet.
Many children have been withdrawn from school to be home educated because of concerns about their personal safety. Parents of children in schools note with alarm the need for a police presence in a growing number of schools and welcome initiatives to effectively tackle bullying, violence and other anti-social behaviour, but children educated at home are not subject to such risks and dangers.
It is important to uphold the legal tradition whereby citizens of a free country are presumed innocent until found guilty. In the absence of evidence to the contrary, it may therefore be assumed that parents are fulfilling their legal responsibilities with regard to the care and education of their children. If such a presumption were more widespread, it would help to resolve many of the conflicts that have arisen between local authorities and home educating parents.
On the other hand, where there is evidence that parents are failing to provide a ‘full-time efficient education, suitable to [their] age, ability and aptitude and to any special needs [they] may have’, the authorities are empowered investigate and take appropriate action where necessary (Education Act 1996, s437). Also, under Section 47 of the Children Act 1989, local authorities are empowered to make enquiries and take action where necessary in cases where they have reasonable cause to suspect that a child in their area is suffering, or is likely to suffer, significant harm.
The principle of not requiring any intervention on the part of the authorities unless ‘it appears’ to a local authority that parents are failing to fulfil their responsibilities is not a legal loophole as some have characterised it, but a provision that conforms to three key principles at the heart of UK and European law:
· parental responsibility (Section 7, Education Act 1996),
· respect for parental wishes and parental religious and philosophical convictions (Section 9, Education Act 1996, and Article 2, Protocol 1 of the European Convention on Human Rights), and
· the right to a private family life (Article 8, European Convention on Human Rights).
In keeping with these principles, the Elective Home Education Guidelines for Local Authorities state that ‘parents are not legally required to give the local authority access to their home’ and ‘where a parent elects not to allow access to their home or their child, this does not of itself constitute a ground for concern about the education provision being made’. The guidelines go on to say where informal enquiries are made, parents should be free to provide evidence in a variety of ways (para 3.6).
We are conscious that some education professionals and local authorities have been calling for the introduction of compulsory monitoring arrangements including a legal right of access to home educated children and possibly to the family home. However, we are not aware of any evidence demonstrating that compulsory monitoring and the legal right of access has any proven benefit for home educated children. In particular, for home educated children who associate education professionals with traumatic experiences in the past, compulsory monitoring with a legal right of access to the child would be a frightening prospect.
It should also be borne in mind that home educating families typically do not draw a distinction between education and family life – the two are very much intertwined. It is for this reason that many are so uncomfortable about compulsory registration and monitoring. They would feel that their family life were being monitored and their children surveilled to a degree not experienced by children attending school.
2. Do you think that home educated children are able to achieve the following five Every Child Matters outcomes? Please let us know why you think that.
a) Be healthy
· Not Sure
· No Response
Before addressing each outcome separately, we would wish to make the observation that we are not aware of anyone – no matter how sceptical about home education – suggesting that home educated children are ‘not able’ to be healthy and safe etc. It was for this reason that we sought clarification regarding the purpose of this question before making our response. Unfortunately, officials were unable to assist, leaving us wondering whether it is genuinely considered an open question as to whether parents are competent to meet the basic needs of their own children.
We put it to officials in the DCSF that it is an insult to home educating parents to enquire whether they are able to keep their children safe and see to their health needs etc, and then, to add further insult, to ask, ‘Why do you think that?’ Have we really reached the point where parents have to provide evidence that they are able to care for their own children?
Our understanding of the Every Child Matters outcomes is that they are intended to help local authorities establish priorities in terms of policy development, and not to be used as targets for individual children. We are concerned that to apply the outcomes to individual home educated children in a way they are not applied to children in school is to misuse them.
The five outcomes cover very broad areas and are capable of subjective interpretation, making them unsuitable as measurements of the achievement of individual children. For example, we note that the word ‘well-being’ is used twice in Section 10 of the Children Act 2004 – ‘emotional well-being’ and ‘social and economic well-being’.
According to the DCSF research report, ‘What do we mean by “wellbeing”? And why might it matter?’ (October 2008), while the term features strongly in policy and delivery documents, there is no agreement as to its meaning. The report concluded that there was, ‘significant ambiguity around the definition, usage and function of the word “wellbeing”, not only within DCSF but in the public policy realm, and in the wider world’. It added that ‘the meaning and function of a term like “wellbeing” not only changes through time, but is open to both overt and subtle dispute and contest’ and recommended that the DCSF adopt a ‘low key but deliberate strategy to manage [its] position within this ambiguity and instability’. We would therefore suggest that it would be a hazardous exercise for local authorities to make judgments about the ‘emotional’ or ‘social and economic well-being’ of children in their area.
Turning now to Question 2(a), while parents are not able to guarantee the health of their children there is no reason to suspect that parents of home educated children will not show at least the same degree of vigilance for their health as those who send them to school.
In fact, home educated children may be spared many of the germs and bugs that circulate in the classroom, and since they spend more time with their parents, it is likely that any health concerns will be more swiftly identified and addressed.
We note that the document, ‘Every Child Matters: Change for Children’ defines ‘be healthy’ in terms of sexual health, healthy lifestyles and choosing not to take illegal drugs. In relation to these factors, there is no doubt that home educated children are more likely to be healthy than children in school because they are not subject to the same level of peer pressure and benefit from closer adult supervision.
b) Stay safe
· Not Sure
· No Response
Like health, safety cannot be guaranteed in any setting. Accidents do happen, whether at home, school, on the roads, or in sporting activities etc. However, parents who home educate their children are no less able to look out for their safety than the parents of children who are in school for 30 hours per week, 39 weeks per year and are arguably better placed to ensure their safety than are parents who send their children to school.
The ‘Every Child Matters: Change for Children’ document includes safety from ‘bullying and discrimination’, from ‘violence and sexual exploitation’, and from ‘crime and anti-social behaviour’ in its definition of ‘stay safe’. In relation to these factors, under the care and protection of their parents, home educated children will be far safer than children educated at school.
c) Enjoy and achieve
· Not Sure
· No Response
Like health and safety, enjoyment and achievement cannot be guaranteed in any sphere. Illness, sickness, sadness and failure are part and parcel of life and affect everyone, children included. However, no caring parent wishes to inflict the harsh realities of life on children, and where disappointments and tragedies occur they will want to support them in every way possible.
Taken at face value, the question appears to be whether home education is compatible with enjoyment and achievement, and the answer to that is an emphatic ‘yes’. Does the review team really imagine that parents are home educating their children in order to deprive them of any enjoyment in life and to ensure that they fail in whatever they apply themselves to?
Research undertaken by the National Home Education Research Institute (NHERI) shows that home educated children in the United States typically score above average on measures of social, emotional, and psychological development (see http://www.nheri.org/ ). Children and young people educated at home participate in social and educational activities both with other home educating families, and with the wider community.
In terms of their academic achievement, research from the United States demonstrates that home educated children typically score 15 to 30 percentile points above public-school students on standardised academic achievement tests, regardless of their parents’ level of formal education or their family’s household income.
The question appears to imply that while the enjoyment and achievement of children in school is guaranteed, there is some doubt as to whether home educated children ‘are able to achieve’. In view of the fact that the Confederation of British Industry reports that 41 per cent of employers are concerned at employees’ lack of basic literacy skills and 39 per cent at their level of numeracy skills (‘Taking stock: CBI education and skills survey 2008’, at http://www.cbi.org.uk/pdf/skills_report0408.pdf ), we would suggest that confidence in the ability of vast numbers of children educated at school to achieve even in the areas of basic literacy and numeracy is misplaced.
The ‘Every Child Matters: Change for Children’ document defines enjoyment and achievement almost entirely in relation to attendance and achievement at school, but thousands of children in the UK and elsewhere are demonstrating that school does not have a monopoly on achievement or enjoyment. In fact, if children in school were achieving this outcome, there would not be anywhere near the level of truancy and exclusions, and neither would a police presence be necessary.
d) Make a positive contribution
· Not Sure
· No Response
Home educated children typically make a very positive contribution to their families, to their own social network and to the wider community in an age-appropriate way. Without the constraints of homework, home educated young people are able to devote more time to voluntary work in church and other community groups.
Many home educating parents place a strong emphasis on providing opportunities for their children to serve the needs of others, and home educating families are often noted for the practical care they are able to give to the sick, the elderly and the housebound.
e) achieve economic well-being
· Not Sure
· No Response
In responding to this question, we are assuming that we are being asked whether children who have been home educated are employable upon completion of their full-time education.
Some home educated children enter employment straight from home, while others pursue additional studies at Further Education colleges or universities prior to embarking upon their careers. We are not aware of any evidence of children being placed at a disadvantage as a result of home education. In many cases, the fact that young people who have been home educated tend to be less peer-dependent and better able to relate across a broader age spectrum than those who have been in school, is a specific advantage when they enter the workplace.
Home educated young people often develop personal study skills at an earlier age than those who attend school. This, too, can stand them in good stead if they are required to work without close supervision in the course of their employment.
3. Do you think that Government and local authorities have an obligation to ensure that all children in this country are able to achieve the five outcomes? If you answered yes, how do you think Government should ensure this?. If you answered no, why do you think that?
· Not Sure
· No Response
We queried the scope of this question with the review team and DCSF officials on 21 January as it was unclear what kind of obligation was being referred to. However, four weeks later, they have declined to offer any clarification, advising us that we should interpret the question in our own way. We would have preferred a definitive explanation as that reduces the risk of our attempting to answer a question that has not been asked, which is not helpful to anyone.
In the absence of an explanation, we have assumed that the question is asking whether the government and local authorities have a legal obligation to ensure that all children in this country are able to achieve the five Every Child Matters outcomes.
Section 175(1) of the Education Act 2002 places local authorities under a duty to ‘safeguard and promote’ the welfare of children, and Section 10 of the Children Act 2004 requires local authorities to promote co-operation with partners and other appropriate agencies with a view to improving the well-being of children in their area in relation to:
(a) physical and mental health and emotional well-being;
(b) protection from harm and neglect;
(c) education, training and recreation;
(d) the contribution made by them to society;
(e) social and economic well-being.
There is a clear difference between ‘safeguarding and promoting’ children’s welfare and aiming to improve their well-being on one hand, and ‘ensuring that all children are able to achieve the five outcomes’ on the other. It is simply not within the power of central or local government to ‘ensure’ that all children are healthy, safe, enjoy and achieve, make a positive contribution and achieve economic well-being.
If the government or local authorities were to be placed under a legal obligation to ‘ensure’ that all children achieve the five Every Child Matters outcomes, they would be opening themselves up to litigation from parents and children who considered that they had failed to achieve one or more of the outcomes.
4. Do you think there should be any changes made to the current system for supporting home educating families? If you answered yes, what should they be? If you answered no, why do you think that?
· Not Sure
· No Response
There is no ‘current system for supporting home educating families’. As the Elective Home Education guidelines make clear:
‘Local authorities do not receive funding to support home educating families, and the level and type of support will therefore vary between one local authority and another.’
As a minimum, local authorities are advised to provide clear and accurate written information on elective home education that sets out the legal position, but any additional support is discretionary (Elective Home Education: Guidance for Local Authorities, DCSF 2007, para 5.2).
We are concerned that, notwithstanding the guidelines issued in 2007, some local authorities are still failing to provide accurate information on the law relating to elective home education. There have been instances where parents have been incorrectly advised that they are legally required to register with the local authority and to receive periodic home visits, for example. Another concern that has been expressed is that home educated children and their parents are frequently treated in a less than courteous way by truancy patrols, who are often not familiar with the fact that home education is a legal option and that home educators are not obliged to observe school hours, days or terms (Elective Home Education guidelines, para 3.13).
While we would welcome action to ensure that local authority officers and truancy patrols are better informed of the law and guidance relating to home education, we would not be in favour of establishing a mandatory support system for home educators. Home educators receive advice and support from a range of sources and do not always feel that the local authority is suitably equipped or best placed to provide the support they need.
A better approach might be for local authorities to advertise what services they are willing to offer to home educators and then to leave it up to individual families to decide whether or not they wish to avail themselves of what is on offer. In this way, support can be provided to those who welcome it, without the local authority imposing ‘support’ on families who do not require it.
5. Do you think there should be any changes made to the current system for monitoring home educating families? If you answered yes, what should they be? If you answered no, why do you think that?
· Not Sure
· No Response
There is no ‘current system for monitoring home educating families’. The Elective Home Education guidelines state:
‘Local authorities have no statutory duties in relation to monitoring the quality of home education on a routine basis. However, under Section 437(1) of the Education Act 1996, local authorities shall intervene if it appears that parents are not providing a suitable education’ (para 2.7, emphasis in original).
In a reference to the duty of local authorities to safeguard and promote the welfare of children under Section 175(1) of the Education Act 2002, the guidelines state:
‘Section 175(1) does not extend local authorities’ functions. It does not, for example, give local authorities powers to enter the homes of, or otherwise see, children for the purposes of monitoring the provision of elective home education’ (para 2.12).
However, where there are grounds for concern about the welfare of a home educated child, the local authority is empowered to act:
‘[L]ocal authorities have general duties to make arrangements to safeguard and promote the welfare of children (section 175 Education Act 2002 in relation to their functions as a local authority and for other functions in sections 10 and 11 of the Children Act 2004). These powers allow local authorities to insist on seeing children in order to enquire about their welfare where there are grounds for concern (sections 17 and 47 of the Children Act 1989). However, such powers do not bestow on local authorities the ability to see and question children subject to elective home education in order to establish whether they are receiving a suitable education’ (para 2.15).
In our view, the current guidelines are clear and serve as an adequate safeguard, providing protection for children without interfering with the right of home educating families to respect for their private and family life. There is no need to introduce a system of routine monitoring.
Most home educators view home education as part of their family life. We do not see any compelling reason why children who continue to experience family life during normal ‘school hours’ should be deemed in need of additional safeguarding or monitoring any more than families where children are out of the house between 9.00am and 3.00pm during term-time. There would be an uproar if the government were to propose routine welfare checks on all children during school holidays and at weekends. Such an intrusion would rightly be regarded as a breach of family privacy, and home educating families regard routine monitoring in the same way.
Local authorities do not conduct routine safeguarding checks on pre-school aged children who are cared for by a parent at home and we see no reason why that should change once a child reaches the age of five.
We are conscious that some local authorities are calling for a statutory definition of ‘suitable education’. However, we would suggest that the existing law is sufficient in that it clearly states that education must be suitable to the child’s ‘age, ability and aptitude and to any special needs he may have’. In addition, case law has established that a ‘suitable’ education is one which ‘primarily equips a child for life within the community of which he is a member, rather than the way of life in the country as a whole, as long as it does not foreclose the child’s options in later years to adopt some other form of life if he wishes to do so’ (R v Secretary of State for Education and Science, ex parte Talmud Torah Machzikei Hadass School Trust). We are not sure that it is possible to go beyond this without trespassing on the rights of parents to educate children according to their wishes and in accordance with their religious and philosophical convictions.
Some local authority officers have suggested that home educating parents need to be monitored more frequently than schools are inspected because of other checks and balances in place within the school system. However, this demonstrates a lack of respect for parents and a suspicious mindset.
The law is clear that parents are responsible for the education of their children. If they choose to send them to school, they still bear the legal responsibility for ensuring an efficient education. Schools are therefore operating as servants of the parents and are accountable to parents. It is for this reason that schools need to be inspected, to provide parents with a basis on which to decide between different options for the education of their children and to satisfy themselves that the school is delivering an efficient education. However, where parents elect to personally oversee the education of their children, either by undertaking most or all of it themselves or by employing tutors, there is no need for such close inspection or monitoring, unless ‘it appears to the local authority that a child of compulsory school age in their area is not receiving suitable education’, in which case local authorities are empowered to take appropriate action.
The current legal framework for home education is consistent with British legal traditions and with international human rights instruments, and pays due regard to parental responsibilities and family privacy. We would be wary of introducing legislation that would in any way undermine parents and suggest a lack of trust.
We are not sure that the strengths and benefits of the present framework are always appreciated:
· it permits flexibility – where support is needed and requested it can be given;
· where parents are fulfilling their responsibilities and do not require support or intervention, the local authority has no obligation towards them;
· scarce resources are therefore not wasted on monitoring families who neither need nor want local authority involvement;
· Local authority resources are freed up to address situations where ‘it appears to them’ that a child is not receiving suitable education.
If local authorities were to be given the statutory duty to monitor the education provision of every child in its area not registered at a school, they would be liable to legal action if they were deemed to have failed in their duties. Two possible scenarios come to mind:
(a) If a home educated child has been subject to regular compulsory monitoring by the local authority but, at the end of his/her years of compulsory education, considers that the local authority has failed to ensure that his/her parents have provided him/her with a suitable education, he/she could sue the local authority for negligence.
(b) A home educated child who suffered (whether physically, emotionally or academically) as a direct consequence of being forced by a school attendance order to return to school could bring a case against the local authority.
While it is true that scenario (b) could theoretically occur under the present legal framework, an extension of the powers and duties of the local authority would make both scenarios more likely.
6. Some people have expressed concern that home education could be used as a cover for child abuse, forced marriage, domestic servitude or other forms of child neglect. What do you think Government should do to ensure this does not happen?
· Not Sure
· No Response
It is very difficult to respond to unsubstantiated allegations. It would therefore have been helpful had the consultation paper stated which ‘people’ had expressed such concerns and on the basis of what evidence.
We are not aware of any evidence associating home education with child abuse, forced marriage, domestic servitude or child neglect, and certainly registration at a school offers no assurance that such things will not happen. Ultimately, the government can never ‘ensure’ that children are not abused or neglected, irrespective of education setting.
Home education is no more a ‘cover’ for abuse than is sending a child to school, to scouts, to music classes, or engaging in social work, fundraising for a children’s charity, or taking an active role in local politics. The question appears to betray a suspicious mindset. We see no need to treat parents with suspicion simply on the basis that they are exercising their right under Section 7 of the Education Act 1996 to educate their children otherwise than at school.
There is no basis on which to treat home education as a risk factor in child abuse. It is, however, well-established that child abuse is disproportionately found in families where children are not brought up by their two natural parents, and particularly where the child’s natural mother is cohabiting with a partner who is not related to the child (Robert Whelan, ‘Broken Homes and Battered Children’, Oxford: Family Education Trust 1994). Nevertheless, it would be regarded as unacceptable and highly discriminatory to routinely monitor or introduce safeguarding measures for all children not living with their two natural parents. If it is unacceptable to introduce special safeguarding measures where there is an established link between child abuse and family structure, it should be ever more unacceptable to contemplate routinely monitoring home educating families where there is no established link.
Where a local authority has ‘reasonable cause to suspect that a child who lives, or is found, in their area is suffering, or is likely to suffer, significant harm’, it is empowered to ‘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’ (Children Act 1989, s47).
Recent high profile cases of child abuse have highlighted a failure on the part of the authorities to employ the powers that they already have. There is no evidence that additional powers are required.
To impose a system of routine monitoring of home educating families would represent a breach of their right to a private and family life and constitute a waste of public resources. It should be borne in mind that schoolchildren spend far less time in school than away from school. Yet if we were to apply the same suspicious mindset to their parents that ‘some people’ are applying to home educating parents, we would soon cease to live in a free society.
The burden of consultation
We are concerned that this review of home education is being undertaken little more than a year after the Elective Home Education Guidelines for Local Authorities were finalised following a thorough and extensive period of consultation. We understand that the present review may give rise to a full 12-week public consultation later in the year. In this regard, we would refer to Criterion 5 of the Better Regulation Executive Code of Practice on Consultation in relation to ‘The burden of consultation’:
‘Keeping the burden of consultation to a minimum is essential if consultations are to be effective and if consultees’ buy-in to the process is to be obtained…While interested parties may welcome the opportunity to contribute their views or evidence, they will not welcome being asked the same questions time and time again.’
The consultation document
We are concerned that the consultation document is very brief and fails to set the review in any legal or historical context. No attempt is made to set out the current legal framework or to explain current safeguarding procedures, and there is no reference to the Elective Home Education guidelines. There is also no explanation of the Every Child Matters initiative and its status, and no explanation of the specific concerns that have given rise to the review.
As indicated in the responses given above, we are concerned that the questions are unclear and ill-defined, giving rise to a range of possible interpretations. We requested clarification on the meaning of questions 2 and 3 in particular at the very outset of the review on 21 January, but officials declined to offer a response beyond stating that respondents were free to ‘choose to interpret them in their own way’.
The questionnaire to local authorities
In his letter to Directors of Children’s Services and Lead Members for Children and Young People, Mr Badman appears to be labouring under the misapprehension that local authorities are responsible for ‘ensuring that all children are able to achieve the five Every Child Matters outcomes’. However, as we observe in our response above, while local authorities are responsible for ‘safeguarding and promoting’ the welfare of children, they have no duty to ‘ensure’ it and, even if they did, it would be completely outside their power to do so.
The local authority personnel who ‘feel that they are not able to ensure that all home educated children are able to [achieve the five ECM outcomes]’ are therefore demonstrating a failure to understand the law and the limitations of their role. This suggests that the entire review may rest on a false premise.
The letter, together with the questions that follow, also seems to imply that local authorities are required to have arrangements in place for supporting and monitoring home educating families. However, the Elective Home Education Guidelines for Local Authorities clearly state that: ‘local authorities have no statutory duties in relation to monitoring the quality of home education on a routine basis’ (para 2.7) and that: ‘Section 175(1) does not give local authorities powers to enter the homes of, or otherwise see, children for the purposes of monitoring the provision of elective home education’ (para 2.12).
At several points the questions asked of local authorities do not appear to take account of the guidelines. To take just one example, Question 46 defines full-time education for home educated children as ‘20 hrs a week’. The guidelines, however, specify:
‘Children normally attend school for between 22 and 25 hours a week for 38 weeks of the year, but this measurement of “contact time” is not relevant to elective home education where there is often almost continuous one-to-one contact and education may take place outside normal “school hours”.’
The guidelines go on to state that home educating parents are not required to have a timetable, observe set hours during which education will take place, or follow school hours, days or terms (para 3.13).
The terms of reference
The terms of reference for the review appear to assume that there are barriers to local authorities and other public agencies in carrying out their responsibilities for safeguarding home educated children. The assumption is also incorrectly made that local authorities have a responsibility to ‘ensure’ that the five Every Child Matters outcomes are being met. The words ‘ensure’ or ‘ensuring’ feature three times in the four bullet points. This failure to appreciate the fundamental difference between ‘promoting’ and ‘ensuring’ seems to run throughout the review.
Home educated children are referred to as though they are a particularly vulnerable and ‘at risk’ group, when in reality they are simply children whose parents are exercising their right under Section 7 of the Education Act to educate them ‘otherwise’ than at school.
The fact that the terms of reference refer to ‘the extent to which claims of home education could be used as a “cover” for child abuse’ indicates that an assumption has already been made that home education is being used as a ‘cover’. For reasons given above, we object to this characterisation.
Under the third bullet point, a reference is made to ‘supporting’ home educating families in order ‘to ensure’ that they are undertaking their duties. We are uncomfortable about the use of the words ‘support’ and ‘ensure’ in such close proximity as they appear to imply an element of compulsion about the ‘support’ being offered. We are concerned that the terms of reference show a fundamental misunderstanding of the role of the local authority as set out in the home education guidelines at this point.
The final bullet point refers to the ‘current regime for monitoring the standard of home education’. However, as stated in the Elective Home Education guidelines, ‘local authorities have no statutory duties in relation to monitoring the quality of home education on a routine basis’ (para 2.7).
20 February 2009
Family Education Trust
19-21 High Street