Saturday, 21 November 2009

What will a change in the law mean for home educators?

The short answer to the above question is that nobody knows. In the first place, we have no idea what the regulations will look like by the time they have been subjected to various amendments as the Bill passes through both houses. Either house might change the wording, leave out different passages and so on. Once this is done and if it receives Royal Assent, then it will become law. This is where the real excitement begins. Because however clear the provisions of the act are, the courts will end up being called to rule upon it. Does it conflict with any existing laws? Is it in conflict with European law? Human Rights? Is there a deep principle at stake?

We have to bear in mind that although we all believe that the words of the 1944 Education Act that talked of "Either by regular attendance or otherwise" were actually the foundation of our right to home educate, for years these same words were taken by local education authorities as meaning precisely the opposite; in other words that they meant that parents could not teach their own children at home. It was not until people like Joy Baker challenged the Act in the courts that this interpretation by local authorities was ruled to be wrong. Exactly the same thing will happen with any new law. Some local authority will look at specific phrases and say, "Well that's quite clear". A parent will interpret the words in a different way and the case will end up in court and then a magistrate will have to decide on the matter. Often such cases end up at the Crown Court or higher and the final ruling can be quite unexpected.

It is next door to impossible, just by looking at the original words of an act to guess how they will be interpreted in the courts. As I say, today we look at those few words from the 1944 Act and they seem so obviously to give us the right to teach our children at home. Yet for years, those same words were thought to make home education illegal! There is a long way to go yet before we need to get anxious and worked up about this.


  1. But nobody wants to be that first family who has to argue this in court! I know I don't.

  2. "Is it in conflict with European law? Human Rights?"

    Not according to Europe when they upheld the home education ban in Germany. They are hardly likely to concern themselves with a lesser evil.

    As anonymous says, who is going to want to put their family through this? How many home educators have taking it that far before? Very few, less than a handful I think, and it's only worth doing if the wording is equivocal. Most of it isn't ATM though it's very hard to follow!

  3. Do we, in fact, ALL believe that the words of the 1944 Education Act were the foundation of the "right" of British parents to home educate?

    I don't. I believe the foundation of a parent's right to "home educate" is precedence over the establishment of a classroom based institutional school system.

    I was reading an article recently about the history of "homeschooling" in America, where there's apparently a common belief that it's only recently become legal for parents to educate their own children. It seems the fact is, it was never illegal.

    I'm wondering now when exactly "home education" in the UK was delegalised so that the "right to home educate" was presumed to have been so graciously "restored" by the 1944 Act.

  4. I should have said "All parents in this country". The words from the act, "Or otherwise", are the ones which have been ruled by the courts as allowing home education. They were incorporated into the 1996 Education Act, the one which is now in force. You are probably right in that it was never actually illegal to home educate. After all, the Royal family were doing so before the 1944 Act and so were many wel'to'do families who engaged governesses and tutors to teach their children. So perhaps it has been legal all along and it is only since the fifties and sixties that people have fought to assert their right. Never the less, those words of the 1944 Education Act are the ones which give justification in law for the practice, at least in this country. Maybe if one were to trawl through the texts of earlier acts, even the 1880 and 1891 ones, there would be a similar clause there which would have allowed home education even earlier.

  5. "Never the less, those words of the 1944 Education Act are the ones which give justification in law for the practice, at least in this country."

    That, and the fact that no UK law has ever stated that school is compulsory.