Friday, 20 November 2009

More good news for autonomous home educators

There can be few spectacles less attractive than that of a man crowing, "I told you so, you idiots!" Fortunately, I am possessed of sufficient self control that I shall not be yielding to this enormous temptation. Ever since Graham Badman's report was published, excitable people have been claiming that all his recommendations would become law. There was, realistically, little chance for many of them. Badman is not a lawyer and many of his idea were hopelessly impractical, however desirable they might have been. I am surprised that others could not see this. On September 16th I posted a piece asking what changes in the law were likely. I concluded it by saying;

"To summarise, there is a long way to go before anybody needs to get het up about all this. My personal view is that some new legislation would not come at all amiss. I realise that not everyone agrees with me on that point, to say the least of it. But it does not really matter, because the chances of local authorities actually ending up with specific powers about interviewing children alone are negligible."

A number of individuals responded indignantly, telling me in effect that I did not know what I was talking about. I am saying this for a reason, not just as an act of odious and smug self-congratulation for my prescience, (although no doubt there is an element of that). Exactly the same thing is now happening again. People are reading the new guidelines and regulations and imagining that every jot and tittle will be as fixed and immutable as the laws of the Medes and Persians. It is not so.
Here is an example of the sort of thing which will provide a loophole;

Monitoring provision of home education to registered children
A local authority in England shall make arrangements with a view to
ascertaining, so far as is reasonably practicable—
whether the education provided to a child whose details are
entered on their home education register is suitable;"

At once, we focus upon those words, "so far as is reasonably practicable". In other words, there will not be an absolute duty on the local authority at all, only, "so far as is reasonably practicable". What will this mean? Perhaps families who do not co-operate fully with providing a statement of what they intend over the coming year will mean that it is not reasonably practicable to ascertain if their provision is suitable. Possibly awkward customers will not be able to be dealt with for the same reason. At the very least, we know that the local authority has a get out clause which will enable them to slacken off if they feel like it.
Here is another interesting bit;

Arrangements made by an authority under this section shall include
arrangements made with a view to their—
holding at least one meeting with the child during the
registration period;"

Note that the law will not state unequivocally that local authorities must meet the child. Rather, they will make arrangements "with a view to" doing so. When laws are framed in this wooly way, there is usually a reason for it. After all, there was nothing to prevent the blunt statement, "The authority will hold at least one meeting with the child".

All the signs are that these regulations have been carefully worded so as to allow the local authorities plenty of space to manoeuvre and not enforce them too rigorously. Add to that the fact that the old School Attendance Order will remain as the primary tool for getting children back to school and that this must be enforced by a court and I can see that very few, if any, home educated children will in the end be forced unwillingly to school.


  1. “Add to that the fact that the old School Attendance Order will remain as the primary tool for getting children back to school and that this must be enforced by a court and I can see that very few, if any, home educated children will in the end be forced unwillingly to school. ”

    But at the moment all the parent needs to do is prove to the magistrate that they are providing a suitable education and the SAO is cancelled. The new law states that if the authority considers it expedient that the child should attend school they should serve a SAO and should disregard any education being provided to the child as a home educated child. The magistrates must abide by the same laws. So even if you are providing a suitable education at home the magistrate will still uphold the SAO if the LA thinks the child attend school.

    "(3A) If it appears to a local authority in England—
    (a) that a child of compulsory school age in their area is a home-educated child, but is not registered on their home education register, and
    (b) that it is expedient that the child should attend school,
    the authority shall serve a school attendance order on the child’s parent.
    (3B) In determining for the purposes of subsection (3A)(b) whether it is expedient that a child should attend school, an authority shall
    disregard any education being provided to the child as a home-educated child.”

    You have suggested that the annual plan will not have to be followed so autonomous educators will be OK if their child's interest change. This does not appear to be the case:

    “19F Revocation of registration

    A local authority in England may revoke the registration of a child’s details on their home education register if it appears to them that—
    (a) the child’s parent has failed to fulfil an undertaking given by virtue of section 19C(4)(e),”

    "19C (4) Provision within this subsection is provision—
    (e) for an application for registration to include an undertaking to provide a statement mentioned in paragraph (b), or other prescribed information, to the authority within a period determined by or in accordance with the regulations."

  2. Local Education Authorities used to act as though the 1944 Education Act made home education illegal. This was the basis upon which they issued School Attendacne Orders in the sixties and seventies. See, for example, Phillips V Brown 1980 and also Harrison & Harrison V Stephenson 1981. In the fifties, Norfolk County Council used an SAO against Joy baker. How the local authority views a law and how it is interpreted in the courts are two entirely different matters, as we can see from the above cases.

    As regards the annual plan, there is no suggestion of how detailed it will be. Not at all would be my guess. I think it will come down to a parent saying that she hopes that Johnny will learn more about the world and that his literacy skills will develop in a variety of ways, not necessarily in a conventional fashion but in respect of the emergent literacies now recognised by a number of experts in the field. (This means that he may not learn to read this year, but he will watch television and surf the net). I have already drafted a few impressive sounding annual plans that look very detailed and actually promise nothing at all. I am quite sure that local authorities will be content to meet parents and then go away with a long document that they can file away. If people would rather have a confrontation , of course, then I am sure that will be possible too!

  3. But you're missing the point Simon, that they court must disregard any education given to a child as a home educated child.

    Therefore, how are we supposed to prove that they're getting an education at home?


  5. It is not the courts which must ignore any education being given to an unregistered, but home educated child; it is the local education authority. It will still be open to the court to take this into account before they decide whether or not to go along with the School Attendance Order. As I said above, at one time LEAs thought that the 1944 Education Act prevented home education; the courts decided otherwise.

  6. "It is not the courts which must ignore any education being given to an unregistered, but home educated child"

    The magistrates must abide by the law as it is written too. All they will have to decide is if the SAO was served correctly by the LA according to the applicable law. If the LA must disregard any education being provided when issuing a SAO, then so must the magistrate. Judges can only interpret the law if it is ambiguous and it seems clear in this case. When primary legislation is interpreted in courts, the sole job of the judge is to consider what the intention of Parliament was when passing the legislation, not to change laws. Common law is law that has been developed by judges without primary legislation, but this does not apply where primary legislation exists.

    "Legislation is the enactment of law by the Queen in Parliament. This is the sovereign body of English law and judges are bound to give effect to such enactments. It is clearly established that the will of Parliament prevails over that of the judges so that the courts have little or no authority to challenge the validity of statutes"

  7. imary legislation is always open to interpretation by the courts. That's where case law comes from. This can be binding. As I said. for along time it was supposed that the primary legislation relating to home education, the 1944 Education Act, actually made home education by parents illegal. It did not, but this decision was reached by the courts in opposition to the interpretation made of the law by local education authorities.

  8. Yes, they can interpret law if it is ambiguous, not change it. If the law is clear and unambiguous it must be followed by magistrates and judges.

    "'What a statute itself enacts cannot be unlawful, because what the statute says and provides is itself the law, and the highest form of law that is known to this country. It is the law which prevails over every other form of law, and it is not for the court to say that a parliamentary enactment, the highest law in this country, is illegal'. (per Ungoed-Thomas J in Cheney v Conn (1968))"

  9. Your example of LAs not understanding the law does not apply. The magistrates didn't change the primary legislation, they interpreted it. If the law clearly states that the home education being provided to the child must be disregarded, how can that be 'interpreted' to mean the opposite?

  10. Because the wording specifies that it is the local authority who must ignore this, it makes no mention of anybody else and nor could it.

  11. If an SAO reaches court, the magistrate is there to decide if the LA applied the law correctly when it issued the SAO. If the SAO was issued correctly according to the law (and the law allows them to disregard any home education being provided), the magistrate must find in favour of the LA and uphold the SAO. The magistrates didn't look outside the law covering the issue of a SAO in the examples you give. They looked to see if the LA had issued it correctly according to current primary legislation.

  12. I shall post a long bit on this later this evening. It is enough for now to say that all Statute Law has to be interpreted in the light of previous acts and also precedent. Until it reached the courts, it is impossible to say how it will be taken. This is especially the case if the appeals move up the system.

  13. So do you think that if primary legislation ever said that school (not education) is compulsory, the courts could disagree?

  14. Consider if you will the famous Anti-Terrorism, Crime and Security Act 2001. It was great. It gave the Home Secretary the power to lock up any foreigner for as long as he wanted without trial! Here is a good piece of primary legislation if ever there was one. Clear and unambiguous, nothing complicated, no need for fancy interpretions. It was absolutely watertight.....until the Law Lords struck it down in 2004 and declared it unlawful. Exactly the same thing could be done to any section of the new Children, Schools and Families Act. I'm not running a distance learning course, but the doctrine of the separation of powers is worth considering here. The Judiciary have a short way with laws they don't like.

  15. That was ruled against because it was incompatible with European Convention on Human Rights. The European court has already upheld the ban on home education in Germany.