The legality, or otherwise, of home education in England

A few days ago I looked at the idea that Hitler banned home education in Germany; a dubious claim at best. Today I wish to examine another integral part of the whole mythos of home education in this country. This is the notion that the 1944 Education Act somehow changed the situation regarding home education in Britain and, in a sense, made the practice legal. This is of course absolute nonsense; home education is no more legal or illegal now than it was a hundred and twenty years ago. Indeed, there is a case to be made that home education by parents is actually illegal in this country and has been so since 1880. It could in any case be stopped very quickly without any new laws being passed at all. To see why this should be so, we need to look at the background of home education, going back to the Victorian era.

Until the middle of the Nineteenth Century, school attendance in this country was completely voluntary. If parents didn't want to send their children, then that was fine, there was no more to be said. Several government commissions were set up to look into the question of parents who chose not to send their children to school. The Newcastle Report into the State of Popular Education in England was published in 1861 and argued against compulsion in education. The authors of the report said:

Any universal compulsory system appears to us neither attainable nor
desirable. An attempt to replace an independent system of education by
a compulsory system, managed by the government, would be met by
objections, both religious and political...

Sentiments with which many home educators would still agree. Never the less on February 17th, 1870 W. E. Forster introduced his Elementary Education Act, which was the first step on the road to compulsory schooling. This act provided for the setting up of Board schools. Many parents simply refused to cooperate until another Education Act in 1880 made attendance at the schools compulsory. Compulsory that is, unless provision was made for the child's education elsewhere. Forster himself said of the matter:

We give power to the school boards to frame bye-laws for compulsory
attendance of all children within their district from five to twelve. They
must see that no parent is under a penalty for not sending his child to
school if he can show reasonable excuse; reasonable excuse being
education elsewhere, or sickness...

Forster's 'education elsewhere' is very similar to the 1944 and 1996 act's 'by regular attendance at school or otherwise'.

In the decade after the passing of the 1880 Education Act, prosecutions for the non-attendance of children at school were running at over a hundred thousand a year. It was the commonest offence in Britain, with the exception of drunkenness. It took the passage of a further Act in 1891, which made elementary board schools free, before the majority of parents accepted the situation and the custom of sending children to school became, among ordinary people, universal. At no time at all did anybody consider for a moment that the phrase, 'Education elsewhere' could possibly have been meant to refer to parents teaching their own children. It had been included so that families who could afford to do so were able to hire tutors, teachers and governesses to teach their children. This was of course precisely the same reason that those few words, 'or otherwise' were put into the 1944 Education Act. Many well to do families including the Royal family preferred to engage teachers to instruct their children at home, at least when they were young. If these clauses had not been included, the truancy officer might have been knocking on the door of Buckingham Palace in the nineteen thirties!

For the first thirty years after the passage of the 1880 Education Act, it was assumed by everybody; teachers, governments, courts, parents and everybody else, that this act had made it illegal not to send a child to school or have him taught by a qualified person. It was as simple as that. Home education by parents was actually believed to have been forbidden by law. In 1911, a parent was prosecuted not for teaching her own child, but because the standard of education was thought to be too poor. In his judgement in this case, Bevan v Shears, Lord Alverstone said:

In the absence of anything in the bye-laws providing that a child of a
given age shall receive instruction in given subjects, in my view it
cannot be said that there is a standard of education by which the child
must be taught. The court has to decide whether in their opinion the
child is being taught efficiently so far as that particular child is
concerned.

This judgement simply meant that the education which children received out of school could be different from that which children at school were getting. It had no bearing on home education as such. For more than forty years after Bevan v Shears, home education in this country by parents was still thought to be illegal. The passage of the 1944 Education Act did not affect this perception; it was thought to be self evidently true that parents could not educate their own children.

In 1952, a mother in Norfolk called Joy baker decided not to send her children to school, but instead to teach them herself at home. Her local authority issued a School Attendance Order and prosecuted her. For the next eight years, Joy baker fought her way through the courts, trying to prove that the 1944 Education Act allowed her to home educate. Finally, in 1961, she managed to convince a court that her interpretation of the law might be correct. Neither this case nor any of the other landmark decisions reached as far as the House of Lords.

Any decision like this by a lower court can be over-ruled by the court above it. In other words, if a local authority were to issue an SAO and then keep appealing if the courts decided that home education was an acceptable way of meeting the requirements of the 1996 Education Act, then in theory the Supreme Court could reverse the decisions in both the Baker case and others and rule that home education was not allowed after all by the act! Another way this could happen without new laws would be if the government issued a Statutory Order defining what is meant by a 'suitable education', something which is a distinct possibility. All that would be necessary would be to frame it in such a way that a suitable education was defined as one delivered by a qualified teacher and most home education would become illegal at a stroke.

I don't for a moment think either of these situations is likely, but when we are criticising the Germans for their harsh laws, it is worth bearing in mind that our own laws are just as open to the interpretation that home education is forbidden, as was the case from 1880 to 1961, as to thinking it is permitted.