Whenever the discussion comes round to either new legislation on home education or home educated children who are not receiving an education some home educator is sure to claim, "But the LAs already have the powers, they simply don't use them." How true is this?
Why don't local authorities take action if their officers truly believe that they are aware of apparently home educated children who are not receiving a suitable education? There are a number of reasons. One might be because either the school or LA are wittingly complicit in the withdrawal of the child from the educational system and are therefore happy to leave him to his own devices. This is not uncommon, see my recent post and the associated comments. Howsoever, let us assume that an officer from the local authority does have reason to think that a child is not being educated, is not happy and wants to do something about it. What happens next?
The first thing to be done is for the LA to make informal enquiries. This generally entails writing to the family although it is not unknown for an EWO to turn up on the doorstep. Most families at this point do provide some evidence. Often, this is an educational philosophy downloaded from the internet. Of course, this is really evidence of nothing more than the ability to use a computer, but often it will be accepted by the LA. What is wrong with that? Well the problem here is that it does not really tell anybody anything at all about the nature or quality of the education being provided for a child. This is particularly the case if the family refuse visits. What can be done now if the LA are still not satisfied?
The answer is of course that proving a negative is, as any logician will tell you, a damned tricky business! How do you prove that a family is not educating a child? The decision is not left to the EWO on the ground. Those in direct contact with a family often know perfectly well that a child is not being educated and they report this to their line manager. It is at this, higher, level that the decision is taken whether or not to proceed further. There are various considerations. One is how long the legal process is likely to take and if it is worth dragging the child back into school where he will only make a nuisance of himself. If he is fifteen or sixteen, then it is unlikely to be worthwhile. A lot depends on the magistrates in the area as well. Some are famously reluctant to allow prosecutions under SAOs to succeed. This situation is exacerbated greatly by the lack of any standard definition of what constitutes a suitable education.
Eventually, the local authority might decide to issue a School Attendance Order. They have to give the parents plenty of notice before doing so, but in the end something like this might land on the doormat;
Statutory Instrument 1995 No. 2090 The Education (School Attendance Order) Regulations 1995
SCHOOL ATTENDANCE ORDER
Education Act 1993
[name of authority] Local Education Authority ("the Authority").
As you [name of parent] of [address of parent], being the parent of a child of compulsory school age in the area of the Authority, have failed to satisfy the Authority in accordance with the requirements of the notice served on you under section 192(1) of the Education Act 1993 by the Authority on [date of notice] that [name of child] is receiving suitable education, either by regular attendance at school or otherwise: And as, in the opinion of the Authority, [name of child] should attend school:
You are required to cause [name of child] to become a registered pupil at the following school:
[Insert full name and address of the school and omit the whole or part of the following words as the case requires]
being the school [specified by the Authority] [selected by you] [determined by a direction of the Secretary of State for Education and Employment] [as the school to be named in this Order] [specified in the statement for the child under section 168 of the Education Act 1993]
Failure to comply with the requirements of this Order is an offence unless you can prove that [name of child] is receiving suitable education otherwise than at school.
Signed [name of officer] of [name of authority] Education Authority.
Impressive as it looks, this document leaves much to be desired, which is why most LAs hardly ever bother with them. For one thing, having got the parents into court the people they now need to persuade are lay magistrates. They tend to be lot more gullible than LA officers and it often does not take much for them to be convinced that a suitable education is being provided, despite all the evidence to the contrary. There is no point at all dragging the borough solicitor into court, only to see the case thrown out and so if the local authority feel that it is liable to be a waste of time issuing an SAO, they will just not bother. But suppose it isn't and the magistrate agrees with the LA, what happens then?
The relevant case here is Enfield Borough Council v F (1987) (2 FLR 126) and sobering reading this precedent makes for any LA hoping to prosecute parents for ignoring a School Attendance Order. For one thing, an SAO obliges a parent to register their child at a named school. What happens if having complied with the order in this way, they then deregister the child the following week? Good point and a grey area of law. What happens if despite all this, the parents have been successfully prosecuted by the LA and fined for disobeying an SAO? Well, the child is still not in school and so the LA must now launch a second prosecution, sometimes combined with an application for an Education Supervision Order. The longer this process continues, the more expensive it becomes. Also, at any stage they may encounter an awkward magistrate who will side with the parents and dismiss the case. Some parents are adept at playing the system. They may register their child at a school before an SAO is issued and then withdraw him again a few weeks later. Cat and mouse games like this happen regularly in some local authority areas.
At the root of the matter is the lack of a satisfactory definition of what constitutes a "suitable education". Until this is sorted out and some sort of yardsticks devised which can measure this, then the situation will remain confused and open to abuse. This is why I believe that new legislation is urgently needed. Unless home educators are prepared to engage in a dialogue about this, then the matter will be decided by the unilateral imposition of rules by the DCSF and local authorities, a situation which would be welcomed by few home educators.