Saturday, 24 November 2012

More on the situation in Wales and The Consultation - Guest post from Jill Harris

Although I did not see the permission to post this till the consultation was over I still think it is well worth blogging Jill Harris' response.  This is an extremely comprehensive answer and rebuttal of their questions and I think it may be very useful as a source of arguments if WAG press on regardless.

*Question 1: Home Education Register *


Plain English Version Question 1 Do you agree with our proposal that
requires children educated at home to be included on a register?


*Comments *

There is a misconception amongst some that the existing system is one of
a voluntary register, but this is completely inaccurate -- what we
currently have is a system of compulsory notification of de-registration
from school. The parents are simply required to notify the school in
writing that they no longer require a place for their child, and the
school is then required to notify the council that they are therefore no
longer eligible for funding for that child. This is merely to comply
with the contractual processes, and there is no requirement for the
parent to inform the council of the decision at all, since it then
reverts to a private family matter.

I do not believe there is any justification for a formal register, or
record of any sort, regarding how parents fulfil their duties. To do
this for educational provision makes no more sense than to do so for
diet or health care -- would a register of those with special diets in
each area be considered necessary? Or of those choosing to use
alternative health services? It might make it easier to provide council
services, but that is nowhere near enough justification, legally, for
providing for routine official records of a private family decision.
This would be an unwarranted intrusion on the right to a private family
life -- if there is no evidence of concern, then there is no
justification for the council to even request personal information, or
to have any forced role whatsoever. It is the provision of schools that
is the legal responsibility of councils -- the provision of education is
the legal responsibility of parents. Home education therefore only falls
within the remit of council responsibility where there are specific

The premise behind this proposal is based on a false interpretation of
the law. The WAG proposals state that :-

"Section 436A of the Education Act 19962 places a duty on LAs which
consists of two parts. The first part requires a LA to identify (so far
as it is possible to do so) all learners of compulsory school age in
their area who are not on a school roll. The second part requires a LA
to establish if such learners are receiving a suitable education. In the
remainder of this document we describe this duty as 'the section 436A

Whereas what section 436A actually says is :-

"(1)A local education authority must make arrangements to enable them to
establish (so far as it is possible to do so) the identities of children
in their area who are of compulsory school age but---
(a)are not registered pupils at a school, and
(b)are not receiving suitable education otherwise than at a school."

The second "part" does not therefore require councils to establish
/whether/ children are receiving a suitable education, it simply
requires LAs to establish their identities if they are /not/. It
(legally) requires an "appearance" of them /not/ being in receipt of an
education that is suitable. This is entirely different, and concurs with
the presumption of innocence -- the main concept underpinning all UK
law, and included in current WAG guidelines. There is therefore no
existing legal basis for routinely identifying or recording educational
provision, and to propose changing this would require a far more
substantial change in law than is being suggested. With no legal basis
for any such "register", there can be no enforceable duty on parents to
register that their child is or will be home educated.

As I have said above, introducing legislation that requires parents to
inform the council about their own parental duties risks contravening
international laws regarding a right to a private family life -- if the
parents choose not to use council educational services, then education
remains a part of their private family life.

The plain english version of this question does not refer to whether it
should be a duty on parents to register, which has significant
additional legal implications to those of just being "included on a
register". This is a huge difference, and has potentially excluded those
relying on the "plain english" version from the opportunity to be
consulted on this aspect.

*Question 2: Failure to register*


Plain English version Question 2 - If the parent fails to register their
child, does not give all the information we ask for or gives false
information, should their child have to go to school?


*Comments *

Apart from the fact that I simply don't agree with the basic presumption
behind this question, it presupposes that school is the best option
whilst any dispute regarding this runs its course, which in most cases
simply isn't true. It imposes a huge change on the child, and will, in
many cases, result in significant distress and disruption to their

There are may foreseeable circumstances where the information that a
parent has provided could be subsequently, or subjectively, considered
"inadequate", or where the information, or the information required, has
changed, and could therefore be considered "false". Changes in what
information is required, or in what form, would lead to disputes and
legal challenges, as the whole idea is likely to substantially infringe
on the right to a private family life.

Allowing the council to impose a default option in cases where there are
no specific concerns that might warrant such, places the council in a
decision-making role that far exceeds it's legal remit, and would
therefore leave the council open to legal action both as a principle,
and also in light of any negative impact on the child of this
imposition. This proposal again demonstrates a lack of understanding of
the basic delineation of legal responsibility regarding something that
is a clear parental responsibility. There must be specific concerns for
a council to over-ride such parental responsibility.

There is a vested interest in enforcing such a policy as there is a
financial benefit to the schools and the councils, should children be
required to attend school (schools will then receive per-capita funding,
whereas councils receive no per-capita funding for home educated
children). This would be an unacceptable influence in decision-making,
and especially in using this as a default option.

*Question 3: Working together*


Plain English version Question 3 - Do you agree that parents should work
with their local authority to make sure home education is meeting their
child's needs?


*Comments *

Certainly not, and I do not see how councils can possibly hope to do
this? Suitability in this regard (in law) relates to the individual
child, and their age, ability, aptitude and any special education needs
they may have, not to any generic concepts of /a/ "suitable education".
Unless councils are going to spend the ridiculously disproportionate
amount of time and money required to do this satisfactorily on such an
individual level, they are certain to find themselves in endless
disputes regarding what is suitable for each child. To do this
routinely, in the absence of any indication of concerns or shortcomings
makes no legal, financial or moral sense whatsoever. One of the main
advantages of home education is that it can be tailored in exactly this
way to suit each individual child, and since international law
recognises that parents should be assumed to have the best interests of
their child at heart, it would again invite legal challenges to
routinely impose an assessment by the very people whose services the
parents have chosen not to use. The conflict of interests are clear. To
suggest that anyone other than the parents is best placed to make the
decision as to what is suitable for their child contravenes
international law, as well as the existing general responsibilities of
parents. It is very clearly beyond the extent of the powers of the state
in circumstances where there are no specific concerns.

The plain english version of this question refers to the idea of
"working with their local authority", the legal implications of which
are far less significant than of the LA assessing the education. Again,
this is a huge difference, and has potentially excluded those relying on
the "plain english" version from the opportunity to be consulted on this

*Question 4: First meeting*


Plain English version Question 4 - Do you agree that the first meeting
to join the register should take place where the child is going to be
home educated?


*Comments *

Again, this is a presumptive question, as I do not even agree that such
an initial meeting should routinely take place. Also, this fails to take
account of the right to a private family life, and would give the
council substantially more powers to enter the home of perfectly
law-abiding home educators, than the police would have when there is
actual evidence of crime!

It's incredibly insulting to try and pretend that it's not family homes
that are being talked about here for the vast majority of children. With
home education, education remains part of parenting, rather than being
"contracted out" to a school, and so to give routine access to the
family home in this way would again contravene international laws
regarding family privacy.

*Question 5: Annual review -- place of meeting.*


Plain English version Question 5 - Parents, the child and local
authority staff will meet once a year, to talk about the child's
development. How often should this annual meeting happen at the place
where the child is being home educated?


*Comments *

Again, this question assumes agreement that there should even be annual
meetings, which I don't agree with, and I don't agree either that
meetings should ever be required to take place at the family home unless
there are specific concerns that justify this intrusion on family privacy.

The real question here though, is the implied assumption that the child
be required to meet with the council annually. I would see this as a
gross intrusion on the child's rights, and tantamount to unlawful
detention. /(//*Detention*//is the process when a state, government or
citizen lawfully holds a person by removing their freedom of liberty at
that time). /To introduce powers to detain a child in this way in the
absence of any suspicion of wrongdoing would clearly contravene
international laws.

International law also requires an assumption that parents are acting in
the best interests of their children, and there should therefore be no
routine questioning of children in this way. Again, this would give
councils more rights than police! Many children, especially those who
are very shy, or who have experienced bullying or phobia at school would
likely be seriously distressed at this proposal, especially since it
appears to not be something the child could opt out of. It would be an
incredible infringement on a child's rights to force them to even attend
such a meeting, especially if it were to be conducted without their
parents present. Again, this is way beyond the powers of the police in
circumstances where there is evidence of actual abuse, and yet this
proposal relates to a routine process involving families where there are
no concerns at all.

International law also requires parents to make decisions regarding
their children, on the basis that children are not yet able to make
decisions for themselves, nor to fully understand the consequences. It
is as meaningless, and pointless, therefore, to ascertain a child's
opinions about home education, as it would be to ask school children
whether they wish to be forced to attend school. I am not aware of any
evidence that home educated children express dissatisfaction, and it
would certainly be far, far less common than the number of school
children who resent and struggle with the compulsory nature of their
school attendance, the intense focus on testing, the fragmented approach
to learning, the dominance of certain subjects, the lack of provision
for different learning styles and needs etc. There is no explanation of
any perceived benefit or aims of such questioning in the proposals,
which makes this an even more extraordinary extension/contravention of
existing laws.

*Question 6: Refusing registration*


appears on the consultation page described as "Registering and
monitoring home-based education" pdf) *

*[ From the consultation document page 6. The LA would only be able to
refuse a new application or revoke an existing*

*registration in a very limited set of circumstances:*

. *if the parent fails to satisfy the LA that they are fulfilling their
duty under*

*section 7 of the Education Act 1996*

. *if the LA becomes aware of new or existing welfare or safeguarding

*that affect the suitability and effectiveness of the education provided*

. *if the parent fails to cooperate with monitoring and/or reasonable

*to monitor.*


Plain English version Question 6 - Should parents be refused
registration or have their registration overturned, if: the education
offered does not meet the child's needs, or puts the welfare or the
safety of the child at risk? parents will not let the local authority
check that the child's education is suitable?


*Comments *

I don't believe there should even be any such a thing as "registration",
but that isn't actually what is being described here anyway, which
actually amounts to "licensing". I don't agree with that either, and
don't agree that the council has the right to prevent the parents from
pursuing their choice regarding education unless there is proven harm to
the child in doing so.

To over-ride the parents in this way (with no need for even a suspicion
of concerns at any stage) massively shifts primary responsibility away
from the parents and towards the state, in a way that perhaps hasn't
been thought through? The implications are huge, and warrant full
consideration! This would be an extremely costly and litigious position
for a council to be in.

Existing laws already provide for a school attendance order where there
are specific relevant concerns, so the only role of this provision is to
reduce the decision-making process to that of a council official, rather
than a court, which would clearly lead to many more disputes than at
present. I think the potential for this whole process to result in
lengthy and costly legal challenges, and to tie up many parents and
council officials in bureaucratic and legal disputes has been hugely

Introducing welfare or safeguarding issues here conflates education and
welfare in a way that is extremely unhelpful, both for children, parents
and councils, and has already caused enormous problems in serious case
reviews. It is far more efficient for issues of concern to be dealt with
separately, and to completion, by those properly trained in each area,
and for existing laws and procedures regarding welfare to be
appropriately enforced. The level of subjectivity and the power that
this proposal would confer on education officers will again give rise to
many legal challenges and unnecessary conflict.

Given the personalised nature, legally, of the suitability of each
child's education, any attempt to regulate this, and any occasional
changes made to council requirements will inevitably lead to a number of
families falling foul to this through no fault of their own, and to the
detriment of the suitability of the education they are able to provide
to their child, resulting in protracted disputes which will cause
significant distress and disruption to children and their parents. As
tempting as it may be to more tightly define what the WAG considers
acceptable regarding suitability of the education, there is a reason
that this is not done - it prevents exactly the level of personalisation
that the law is intended to enable, and causes unnecessary restrictions
and unwarranted bureaucratic interference in a process that is not even
raising any evidenced concerns. Home education has been shown again and
again, even where there is no formal structured "lessons", to be at
least as effective, if not more so, than the "one size fits all"
approach of the school system. The inevitable end point of such a course
of action is to gradually progress to the point that children can only
be educated in the ways that schools are allowed to educate, as that is
what is defined as "suitable" in a mass, generic system. In fact it is
the suitability of provision in relation to the practicalities of mass
instruction and supervision that is the largest factor in this, whereas
home educators can be far more diverse, flexible and responsive. It is
exactly that kind of generic approach that so many home educators are
perfectly legally stepping away from, and rightly so, as it does not
(and can never) provide an education that is suited to each individual
child. Parents who are able and willing to make the sacrifices required
to home educate are able to individually tailor and adapt the education
in a way that does not, and should not, attempt to duplicate the mass
school system, and which can enable a child to develop and excel in
their specific talents, whether academic or not. Home education can also
enable children to direct their education in ways that take it beyond
any limitations of their parents experience/knowledge, and to maintain
either a longer-term diversity or a specialisation that schools cannot
hope to deliver. Many world experts and entrepreneurs have either been
home educated or have proclaimed themselves as self-educated.

It makes no sense whatsoever to enable children to be educated
"otherwise" than at school if this can only be done in a way and at a
place that is exactly equivalent to school, or to empower council
officials to subjectively, forcibly and with extremely limited knowledge
of the child, decide how a parent (of whom there are no concerns) may
fulfil their parental duties. Again, international law (and current WAG
guidelines) requires that councils assume parents to be educating their
child appropriately unless there are specific indications otherwise.
Councils should not be able to define what is considered "suitable" in
order to acquire powers to intervene, where existing evidence indicates
neither need nor benefit of doing so.

If not co-operating with a "reasonable request" were included as
sufficient grounds for refusing a license to home educate, then this
would give far too much power to potentially adversarial council
officials. There are already considerable differences in how councils
interpret the existing law, so adding an open clause like this would be
far too open to abuse. What would be "reasonable" would again be open to
legal challenge. It looks increasingly like these proposals are largely
about intimidating home educators by appearing to place the balance of
power regarding a simple parental decision in the hands of the state, in
an almost open-ended way. To do this as a routine measure, in the
absence of any concerns would be quite remarkable, and would create a
very dangerous precedent.

*Question 7: Notice of registration*


Plain English Version Question 7 - Parents should be told within 12
weeks whether they can educate their child at home.


*Comments *

I don't agree that there is any legal basis or justification for any
form of licensing or registration regarding home education, and would
certainly question what benefit would come of any time frame? It seems
more likely to me that it would be used against parents, meaning that
they only had 12 weeks to "convince" the council official that they
should be "allowed" to home educate, in which case it would probably be
very easy for that person to frustrate their efforts beyond this time
limit, should they be so inclined. This would result in a situation
where the previously identified default position of school would
presumably be applied, and the parent would therefore be prevented from
educating their child in a way that they have identified as enabling
them to fulfil their parental duties, purely because of bureaucratic
inefficiency or obstruction. This would be entirely inappropriate, and
would again result in many avoidable legal wrangles, since the parent
has both the right and the responsibility to determine the nature of the
education provision, unless there are specific indications that they are
/not/ providing an education that is suitable to their child.

*Question 8 -- Any other comments*.

Responses to consultations may be made public -- on the internet or in a
report. If you would prefer your response to be kept confidential,
please tick here:

Existing provisions are perfectly adequate regarding home education, and
there is no established problem where they are followed properly,
although unfortunately many councils do not do so. Setting up a system
that is based on assumed conflict and parental negligence, and
unwarranted state intrusion cannot possibly improve the current
situation. The amount of money these prioposals will cost -- both in
terms of staff time and legal challenges could be far more sensibly
spent. We are talking here about a group of people who almost
exclusively fully abide by the law, achieve better results both
academically, economically and socially for their children than most
schools, and who currently cost the state absolutely nothing. There are
rarely any actual concerns (as opposed to rumours of concerns), or
School Attendance Orders, and where these do occur, they are usually not
upheld in court, as they are often based in a mis-application or
misunderstanding of the law. Although it might seem unbelievable to
councils that they don't have a way of knowing how many, or how children
are home-educated, neither do they know how many have special diets, or
use alternative health care. There is no good reason for a council to
even know, let alone monitor, how parents intend to fulfil their duties
unless there are specific grounds for concern. The role of the council
is to act as a safety net for where there are genuine and evidenced
problems. If the council were to begin routinely investigating and
monitoring families as to how they parent, then that would be a huge
culture shift that I hope isn't intended by the authors of these proposals.

In summary, these antagonistic proposals turn the presumption of
innocence on it's head, undermine the right to family privacy, and place
primary parenting responsibility in the hands of the state rather than
the actual parents. All of these are only justifiable in exceptional
circumstances, not as a routine measure for perfectly law-abiding, happy

The consultation document says that :-

"Under the current system when a concern over the suitability of home
education provision is raised, LAs can find it difficult to gather the
evidence needed to verify the accuracy of the concern."

but these proposals are not merely attempting to address the gathering
of evidence when a concern over provision has been raised, they are
attempting to check every aspect of the education of all home educating
families, in order to rule out the possibility of unidentified concerns.
The area that generally causes "concern" on the part of councils is
their belief that they have a duty to routinely "check" whether the
education is suitable, and no identified process to do so, rather than a
duty to intervene only when there are specific concerns that the
education is /not/suitable, in the same way as with other areas
regarding council intervention in parental duties. This is a completely
disproportionate response to a concern on the part of councils that they
do not have as much power to routinely investigate as they would like.
They already have powers to intervene where there /are/ specific, actual
concerns, and the processes are clear and effective. The proposed
unprecedented, routine infringement on privacy, and the reversal of the
presumption of innocence for home educating families will contravene
several international laws, incur substantial and unnecessary costs, and
irrevocably destroy trust between home educators and councils.

The existing law is perfectly adequate, enabling parents to choose to
remain directly responsible for providing education for their children
in whichever way they feel best prepares each individual child for life
as an adult. Home education is a choice with considerable time and
financial implications for the parents, but as international law
recognises, parents have the biggest personal investment in the future
of their children, and are strongly motivated to help them do well.
There is no justification for routinely assuming that parents who home
educate do not fulfil their responsibility at least as well as those who
choose the route of mass education.

With no actual evidence of need or benefit for these proposals, the WAG
is at risk of committing itself to an unprecedented level of unjustified
expenditure, unwarranted invasion of privacy, and inevitable protracted
legal challenges at a time when parents of school children are rightly
becoming increasingly disillusioned with the performance and practices
in schools, both regarding academic outcomes, and duties of care
regarding bullying etc. Since the evidence is clear that home education
has a proven track record on both these accounts, it seems that the
agenda for these proposals is far more likely to be driven by a simple
desire to increase regulation and powers for state intervention, the
consequences of which will be completely disproportionate, both for
parents and councils. Since the basis of these proposals is actually a
mis-interpretation of the law, as explained in the answers to Q1, Q3 and
Q5, then it would seem better to clarify to councils that they only (and
should always /only/) have powers to intervene in parental duties where
there are specific concerns, and that, as with all other parental
duties, they do not have a right to routinely investigate whether
parents are fulfilling their duties regarding education.

The basis for the state routinely investigating provision in schools, is
that it is responsible for such provision /on behalf/ of the parents ie
it has contractual responsibilities, and therefore has a role in
enforcing quality control. Where parents do not "contract out" their
responsibility for the actual provision of the education, and choose to
home educate, this remains a private family matter, and is no concern of
the state unless it "appears" that the parents are /not/ fulfilling
their duties. Schools who comply with what the state has determined
"suitable" provision of education, are in a clear legal position, since
the onus is then on the parents to take action if they feel this is not
"suitable" for their individual child's age, ability, aptitude, etc. It
is also worth noting that parents actually remain legally responsible
for their child's education even when they do contract out the provision
to schools, and that schools rely on this to avoid liability for
"failing" children. To introduce measures that shift the balance towards
the state having primary responsibility for education would indeed be a
significant shift both legally and financially for councils, and should
not be done on the back of a simple lack of information regarding a
matter for which they have no legal remit in the first case.

There is another great response here as well.

1 comment:

Danae said...

Superb responses to the Welsh governments inability to comprehend the truth about their limitations.

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