Tuesday 6 April 2010

Rights and duties

I mentioned "rights" yesterday, but without even defining the word! This was a mistake, because it is only by examining what we mean by "rights" that we can see how the concept applies, or not, to home education.

A right is simply an entitlement to have or do something. A few people yesterday sought to muddy the waters somewhat by talking of negative and positive rights, natural rights and so on, but these are the very reddest of herrings. Whether the right is a broad and general one, such as guaranteeing life, liberty and the pursuit of happiness, or of a narrow and specific nature such as the right to a full time education, makes no difference at all to their essential nature. One or two people thought that I was pulling a fast one by saying that the Children Act 2004 gave children certain rights. They had looked through it and couldn't see any mention at all of "rights". Of course not; the act consists really of duties. This brings us neatly to the crux of the matter.

Rights are always associated with duties. If I have the right to life, liberty and the pursuit of happiness, then others must have a duty not to deprive me of my liberty or kill me. If a child has the right to an education, then somebody must have a duty to provide him with it. Duties can create rights. In the Education Act 1996, it nowhere says that children have a right to education; merely that parents have a duty to cause them to receive it. This is how most rights are created in law, by setting out duties. For every right, there are corresponding duties. Of course, this does not always work the other way. It is perfectly possible to have a duty without the duty conferring rights upon anybody.

The greatest error into which many of those discussing home education seem to have fallen is to assume that parents have some sort of "rights" in the case. They do not. I have read of parents talking about their "right" to educate their children at home. Even Graham Badman fell into this error, by claiming that it was somehow necessary to balance the rights of parents against the rights of children. This is the most pernicious nonsense imaginable. I as a parent never had any rights at all in connection with my children. I had instead duties. They had all the rights; I had none at all! Unfair, I know, but that's ethics for you.

The fact that the debate around home education is being sometimes framed in terms of parents' "rights" is a sign of the times. A hundred years ago, even fifty years ago, the language used would have been very different. Both parents and professionals would have been trying to thrash out the question using the idea of duties, rather than shouting about rights. Actually, I was racking my brains last night , trying to come up with a single right which parents have, or should have. I could not think of any. Is there any right which parents have, which readers can think of? A right which carries a corresponding duty in law which others must respect?

Having cleared the ground a little, we find that matters are now a good deal more easy to understand. Children have a right to an education. Parents have a duty to provide them with this education, either by sending them to school or in some other way. More specifically, they must provide a full time education suitable to their child's age and aptitude, having regard for any special educational needs. This does not give parents a "right" to educate their children at home, as I have seen some argue. It rather allows them a bit of leeway in discharging their legal duty. This duty itself can be altered or modified at any time. For instance, the definition of what constitutes a full time education could be precisely stated or a "suitable education" spelt out in detail. If these things were to be done, it would simply add to a parent's duties, not diminish her rights. To expect parents to submit an annual plan of their child's education would not remove any right either. It would instead become a new duty.

As soon as we realise that parents have no specific rights over their children or their children's education, the current debate on home education becomes very simple and easy to understand. As citizens, we enjoy certain rights. The right not to be cast into prison without trial, for instance. As parents, we enjoy no additional rights. Becoming a parent means that we are suddenly landed with a raft of duties and obligations. this is as it should be and of course nobody is compelled to have children and acquire those duties unless they particularly want to! Introducing this spurious notion of parental rights into discussion of home education has served only to upset and confuse people. A number of parents have now become convinced that any new legislation might diddle them out of their rights! Nothing of the sort. All it would do would be to add a few new duties for them to perform. Amidst all the duties which they already have, most will hardly notice a couple of new ones.

14 comments:

  1. Does a child have a right to be home educated? and what if the child says i want to be home educated i do not wish to attend a state school?

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  2. The child's right is to an education. It is the parent's duty to provide the education, either at school or elsewhere. The child does not have a legal right to an education in a specific place or setting. For example, he might desperately wish to go to the same school as his friends, which might be full up. He certainly does not have any sort of "right" to this particular shcool. His right is a general one to a suitable education. Otherwise, a child might say that he wanted to attend Eton or Harrow. Would this give him an automatic "right" to a place at either of these schools? No, it is the parents duty to provide for the education as he is able or willing.

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  3. simon wrote,
    "One or two people thought that I was pulling a fast one by saying that the Children Act 2004 gave children certain rights. They had looked through it and couldn't see any mention at all of "rights"."

    It does actually. It mentions that the Children’s Commissioner must have regard to the United Nations Convention on the Rights of the Child.

    "This does not give parents a "right" to educate their children at home, as I have seen some argue."

    Does it give them the duty to educate them at home if it is the most suitable education for that child?

    We do have a right to respect for private and family life, home and correspondence. Any interference with this right must be:

    · In accordance with law; and
    · In the interests of the legitimate objectives identified in Article 8(2); and
    · Necessary in a democratic society.

    The legitimate objectives set out in Article 8(2) are:
    · Acting in the interests of national security, public safety or the economic well-being of the country.
    · Acting for the prevention of disorder or crime.
    · Acting for the protection of health or morals.
    · Acting for the protection of the rights and freedoms of others.

    Can government claim that an annual visit in the home (and many will have 2 or more visits a year) by government officials fulfils these objectives? Even if the visit is not in the home (which only you and a few politicians appear to think is debatable) it is still a routine enquiry of a family. It will interfere with our private and family lives.

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  4. Simon wrote,
    "As parents, we enjoy no additional rights. "

    I think you are mistaken unless they have been removed since 1989.
    The Children Act 1989 states:

    "(1) In this Act “parental responsibility” means all the rights, duties, powers, responsibilities and authority which by law a parent of a child has in relation to the child and his property."

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  5. You racked your brain ?

    How about Article 8 Right to respect for private and family life

    1 Everyone has the right to respect for his private and family life, his home and his correspondence.

    2 There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.


    We are still back to the crux- 'in accordance with the law AND is necessary'.

    The contention of those that oppose the CSF bill is that it is NOT necessary under current Primary Legislation for a public body to interfere UNLESS there is evidence of a need in each individual family.

    Therefore by making HE something that an authority must be check annually in every case is classing the very activity of Home Education as a reason to interfere rather than any of the specific reasons mentioned.

    It may be argued that there is a need to regulate and have a registration system by means of a statutory instrument (especially if inflated figures are produced) but short of an initial notification and possibly a one off meeting in a neutral place of choice or a detailed education plan , I cannot see a justification for anything more than an annual 'hello here we are and we are fine and here is what we did this past year ' type of notification. Unless of course there are 'concerns noted' after the first meeting or someone else raises concerns at any point.

    There would in addition need to be a much clearer system for any 'concerns noted' and the immediate opportunity give families recourse to disagree and an end to the current postcode lottery. There would also need to be better training and clearer guidelines.

    The CSF bill in my opinion is excessive and would be argued as such in court. I have no doubt that should it pass that all families 'need annual licensing' , one family will take it all the way to the European court.......

    Unless the Education Act is amended so that the duty to educate becomes that of the state not the parent. Unlikely.

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  6. Two points to consider here are firstly that the United nations Convention on the Rights of the Child do not create any duty under law in this country. Secondly, Article 8 is concerned genrally with families, rather than giving any rights to parents which are not enjoyed by all family members, including uncles, aunts and cousins.

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  7. I hope all those parents who are quoting the United Nations Convention on the Rights of the Child are aware of the full document! In fact the UNCRC sets out quite a prescriptive basis for education, which is regarded as an entitlement of the child, not a right of the parent. Article 29 states:
    State Parties agree that the education of the child shall be directed to:
    (a) The development of the child's personality, talents and mental and
    physical abilities to their fullest potential;
    (b) The development of respect for human rights and fundamental
    freedoms, and for the freedoms enshrined in the Charter of the United
    Nations;
    (c) The development of respect for the child's parents, his or her own
    cultural identity, language and values, for the national values of the
    country in which the child is living, the country from which he or she
    may originate, and for civilisations different from his or her own;
    (d) The preparation of the child for responsible life in a free society , in
    the spirit of understanding, peace, tolerance, equality of sexes, and
    friendship of all peoples, ethnic, national and religious groups and
    persons of indigenous origin;
    (e) The development of respect for the natural environment.

    This is a good deal more prescriptive than anything found in the law of this country with regard to a "suitable education"!

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  8. "Two points to consider here are firstly that the United nations Convention on the Rights of the Child do not create any duty under law in this country."

    Possibly not but the UN keeps tabs on what states that have ratified the convention are doing.

    http://tb.ohchr.org/default.aspx?country=gb

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  9. "Actually, I was racking my brains last night , trying to come up with a single right which parents have, or should have."

    They have the right to refuse medical treatment for children too young to be considered Gillick competent.

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  10. Parental Responsibility is defined by the Children Act 1989 as being all the rights, duties, powers and responsibility which a parent of a child has in relation to the child and his or her property. It includes rights and duties with regard to education, choice of religion, administration of a child’s property and choice of residence.

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  11. "They have the right to refuse medical treatment for children too young to be considered Gillick competent."

    They can consent to medical treatment; this is part of their parental duty to preserve the child's health. There is actually one right, which is to name the child after birth. That really is about it!

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  12. We have the right to refuse treatment, have our child living with us, choose where they live, how they will be brought up, to act as our child's representative, choose how to cloth and feed them, decide what school (or not) they attend, decide to have them baptised or circumsized, we have the right to be consulted by others in matters relating to our child etc. Parents apparently have the right to remove their child from certain lessons, the right to have a copy of your child's school records within 15 days, to discipline our child, determine their religion, allow or prevent disclosure of confidential information, and appoint a guardian according to the direct.gov web site. If they are not rights, the child should be able to refuse any of these or we would have to ask someone else for permission.

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  13. "There is actually one right, which is to name the child after birth."

    We can also change their name later, both first name or surname.

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  14. Julie Peter had a reply from David Harvey its not good enough so the complaint about Jan Lewis will contine Peter just sent off the letter to complaints manger. Its a good letter to!

    the only good thing they done is finally put Jan contact details on web page! only taken 4 months LOL Peter writes and its up the next day LOL

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