Saturday 19 June 2010

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.

29 comments:

  1. "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."

    Nonsense. Surveys carried out at the time revealed a wide range of educational arrangements, of which the legislators must have been aware. See, for example "The lost elementary schools of Victorian England" by Philip Gardner.

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  2. "or 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."

    I think this is where you are in error. Until recently it was not necessary for a teacher in a private school or a tutor or governess to be qualified (is it now?). I've no idea about the situation in state schools but tutors, governesses and teachers in private school were not legally required to have passed any exams when I was a child, thus parents are as qualified to be the tutor or governess of their own children as employed tutors and governesses. Unless payment confers qualification, in which case the father could pay the mother or vis versa.

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  3. It is perfectly true of course that anybody could work in independent schools. This is quite in keeping with the provisions of the various Education Acts. The law talks about education at school; there is no suggestion that those working there should be qualified or even fit to teach!

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  4. There are also no qualification requirements for the 'otherwise' forms of education. Education laws only ever stated that education is compulsory and there are no grounds at all for your suggestion that, "there is a case to be made that home education by parents is actually illegal in this country and has been so since 1880".

    According to The Elementary Education Act, 1876: 39 and 40 Vict., C. 79 , the 1870 Education Act empowered School Boards to make byelaws requiring attendance at school unless there was a reasonable excuse. That the child is under efficient instruction in some other matter is listed as a reasonable excuse. It looks as though the 1880 Education Act mainly extended the compulsory education age to 10. The requirement was:

    It shall be the duty of the parent of every child to cause such child to receive efficient elementary instruction in reading, writing and arithmetic, and if such parent fail to perform such duty, he shall be liable to such orders and penalties as are provided by this act.

    I would be interested to see where it states in any law that school attendance is compulsory and provision of an efficient education elsewhere is not a reason for exception.

    "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."

    I'm not sure this claim is valid. Before these laws were introduced I think it is likely that a large number of children received their education from their parents. There must have been a 'middle-class' group (shopkeepers, small business people, vicars, tutors, etc) who could not afford private schools and maybe did not have easy access to a local free school and taught their own child to read, write and do arithmetic. I have even read various accounts of this type of education. I remember particularly the description of a father (a farmer) teaching a son arithmetic during a ride to market. Every education law appears to phrase the duty such that an education must be provided, not that school is compulsory.

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  5. "That the child is under efficient instruction in some other matter is listed as a reasonable excuse."

    This should of course read, "That the child is under efficient instruction in some other *manner* is listed as a reasonable excuse."

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  6. I wrote earlier,
    "Before these laws were introduced I think it is likely that a large number of children received their education from their parents."

    I just thought I would follow this up out of interest. I ran a Google search for "educated by his father" and found many examples. What are the odds that it was rare for parent's to educate their children in this way before education became compulsory and therefore not have been considered when 'educated otherwise than at school' provisions were included in all education acts?

    Florence Nightingale
    Florence Nightingale, the daughter of the wealthy landowner... As a child, Florence was very close to her father, who, without a son, treated her as his friend and companion. He took responsibility for her education and taught her Greek, Latin, French, German, Italian, history, philosophy and mathematics.

    John Stuart Mill
    John Stuart Mill was born on Rodney Street in the Pentonville area of London, the eldest son of the Scottish philosopher, historian and imperialist James Mill and Harriet Burrow. John Stuart was educated by his father, with the advice and assistance of Jeremy Bentham and Francis Place.

    Pierre Curie, educated by his father.

    Autonomous education?
    Abraham Lincoln
    Lincoln's formal education consisted of about 18 months of schooling; but he was an avid reader and largely self-educated.

    Rev. Richard ALLEINE (1611-1681)
    Born at Ditcheat in the year 1611 he was initially educated by his father until at the age of 16 when he was elected commoner in 1627 and matriculated at Oxford where he entered St Alban Hall on 15 Oct 1630.

    1884 - 1886 Alderman William Jas. Clegg
    Educated by his father Roger Clegg he then attend the famous French college Sobourne, and from there attended the university of Edinburgh, taking his degree after three years of M.D coming out as a double gold medalist. Commencing his practice in Bacup in 1853.

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  7. Blaise Pascal (June 19, 1623–August 19,1662)
    Pascal was a child prodigy, who was educated by his father.

    Anthony Hope (9 February 1863 - 8 July 1933), English novelist and playwright.
    Hope was educated by his father and then attended Marlborough College, where he was editor of The Marlburian.

    Mr William Thomas Stead, 62, of Cambridge House, Wimbledon Park, London SW and 'Holly Bush', Hayling Island, Hampshire was a well known journalist and author... Stead was born in Manse, Embleton, Northumbria on 5 July 1849, he was the son of Rev. W. Stead a congregational minister and Isabella, daughter of John Jobson a Yorkshire farmer. In 1850 the family moved to Howden-on-Tyne and until the age of 12 W.T.Stead was educated by his father. In 1861 Stead went to Silcoates School near Wakefield. In 1863 when he was 14 he was apprenticed office boy in a merchants counting house on Quayside in Newcastle-upon-Tyne.

    William Blake (1757-1827)
    Born in London in 1757 Blake was the son of a hosier who grew up whilst being educated at home by his mother.

    Robert Burns (1759-1796)
    The son of a farmer, Burns was brought up a Calvinist and did not receive any formal schooling.

    Alfred Tennyson, Lord Tennyson (1809-1892)
    Born in 1809 he was educated by his father and was one of eight siblings. He attended Trinity College, Cambridge where he was awarded the chancellor’s medal for English verse in 1829.

    John Beech
    William and Susan's first child, John Beech was born on the 14th of September 1843, a year after their marriage. The name Beech clearly came from his paternal grandfather, Beech Sandford. The choice of John would have honoured both his maternal grandfather, John Lyster, and his paternal great-grandfather, John Sandford. John it seems was educated by his father at home with his younger brother William at least in respect of Hebrew for which he won an entrance scholarship at Trinity College Dublin in 1863.

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  8. Yes, I am familiar with these. All are either not British or were educated at home before the passage of the Elementary Act of which I wrote. The exception is Anthony Hope. He was educated by his father for a while, but his father was actually a Headmaster; a qualified teacher. These cases confirm what I said.

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  9. "All are either not British or were educated at home before the passage of the Elementary Act of which I wrote."

    Yes, I realised that. It was a follow up to my previous comment:

    "Before these laws were introduced I think it is likely that a large number of children received their education from their parents."

    Which in turn was a reply to your comment:

    "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."

    I believe that education by parents was common (hence the search) and that Parliament fully intended to protect this option through the wording of Education Acts. Further similar searches (educated by her father, educated by his mother, etc) also reveal lots of 'home education' by parents before education became compulsory. Maybe even some of the members of parliament who voted on the Acts were educated by their parents. What grounds do you have for supposing that the wording was intended only to protect the provision of education through the employment of tutors or governesses?

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  10. "The exception is Anthony Hope. He was educated by his father for a while, but his father was actually a Headmaster; a qualified teacher."

    Was he a qualified teacher? He was a Reverend I know, but what qualification did he have in teaching?

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  11. "What grounds do you have for supposing that the wording was intended only to protect the provision of education through the employment of tutors or governesses?"

    This is an interesting point. There is no doubt that home education by parents happened before 1880. I have no idea nad neither does anybody else, how extensive it was. The Education Acts of 1870, 1876, 1880 and 1893 put a stop to this as an option. As I said, the prosecutions for failure to send children to school were running at a hundred thousand a year from 1880 to 1890.It is possible that some of those parents were actually trying to teach their children at home. Every prosecution for not sending a child to school in this country between 1880 and 1961 was successful. This was because the courts believed that home education by parents was illegal.

    "What grounds do you have for supposing that the wording was intended only to protect the provision of education through the employment of tutors or governesses?"

    This is an impossible question to answer. It is only through the interpretation of the courts that we learn what a law actually maeans. Between 1880 and 1961, the courts rules that home education by parents was illegal. Between 1961 and 1981, they were unsure about it and from 1981 until now, the courts say that the various acts actually allow it. A hight court could over-rule this decision and restore the situation which existed between 1880 and 1961.

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  12. "Was he a qualified teacher? He was a Reverend I know, but what qualification did he have in teaching?"

    This is completely irrelevant. The whole of the education deivered by this man to his son took place before the 1880 Act. Home education at that time was allowed.

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  13. "I have no idea nad neither does anybody else, how extensive it was."

    It was very easy to find a list of people that had been home educated, the list could have been far longer. There seems to be two theories that could account for this, one is that many children were home educated, a few becoming noteworthy enough to be recorded by history and their educational background mentioned (it may not even have been mentioned for others). The second is that very few children were home educated most of whom became noteworthy enough to be recorded by history and their educational background mentioned. Now, whilst I am a strong supporter of the benefits of home education, I think the first option is more likely.

    "The Education Acts of 1870, 1876, 1880 and 1893 put a stop to this as an option. As I said, the prosecutions for failure to send children to school were running at a hundred thousand a year from 1880 to 1890.It is possible that some of those parents were actually trying to teach their children at home."

    How do you know it put a stop to this option? It is entirely possible that prosecutions were not brought in cases where children were being home educated. From my reading of the issue, prosecutions mainly involved poor families who could not afford to pay for an education or who relied on their child's income to support the family, not middle-class businessmen and their families who seem the most likely group to choose home education. Education was not free for the first 11 years. Fees ranged from 1-6 pennies a week and a family with 5 children could have and income of 18 shillings a week, for instance.

    "Every prosecution for not sending a child to school in this country between 1880 and 1961 was successful. This was because the courts believed that home education by parents was illegal."

    This is based on your belief that anyone attempting to home educate would have been prosecuted, I believe that they would not have been prosecuted. Neither of us seem able to prove this either way. Home education before the Acts seems to have been relatively common. Do you really think people brought up in this way would just end their traditional lifestyle if it were not specifically banned by the law? It wasn't banned and is even specifically allowed for with the 'efficient instruction in some other manner' clause listed as a reasonable excuse for not attending school. According to The Elementary Education Act, 1876: 39 and 40 Vict., C. 79 linked to above, one of the Education Acts specifically states that bye-laws cannot require attendance at school when the child is under efficient instruction elsewhere. If home education was fairly common when the law was introduced (as I believe was the case), why would this phrase not include efficient instruction by a parent?

    "Between 1880 and 1961, the courts rules that home education by parents was illegal."

    To prove this you have to demonstrate that families attempting to home educate were prosecuted and an attempt to use the defence of providing an efficient education at home failed. You have not done this.

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  14. I don't have time to have a proper look, but here are some mentions of 'home educated' soon after the 1870 Act:

    Rosamond Harding
    1898 Born at Doddington, near March, Cambridgeshire, the first child of Ambrose and Adela Harding.
    1922 Previously educated by her father, with short spells in a number of private schools, she applies to Newnham College to read for a music degree.


    Agatha Christie
    Born Agatha Mary Clarissa Miller in Devon in 1890, the future novelist's American father, Frederick Miller, died when she was a child and she was brought up and educated by her mother, Clarissa, in Torquay.

    Sir Herbert Hamilton Harty (1879-1941)
    Harty was born in Hillsborough, County Down. Educated by his father William Harty who was, from 1878 to 1918, organist at St Malachi's Church Belfast, having succeeded his own father.

    Richard Francis Tudor
    Richard Francis Tudor RUSS age: 67
    Born: 2 Feb 1937 in St Mary Abbotts Kensington
    Education: Apr 1946 - Aug 1946 educated by his father at home
    Education: Sep 1947 - Jul 1949 educated by his father at home


    Theodore Bayley Hardy
    Theodore Bayley Hardy was born on the 20th October, 1863 to George and Sarah Hardy at Barnfield House in the Southernhay district of Exeter. He was educated by his mother until the age of nine or ten

    Mr Sherrell
    Mr Sherrell was born in London, the third son of a family of thirteen. He was educated by his father, a Latin, Greek and Hebrew scholar. He left home at 14 to commence his business career and he joined the Sussex Imperial Yeomanry 1902.

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  15. Yes, I have mentioned most of these before and do not wish to go through it all again. Agatha Christie always seems to creep into the lists of famous home educated children. She was actually taught by a succession of governesses: see her autobiography. Herbert Hamilton Hardy has also been claimed as a home educated child. He took up full time work as an organist when he was twelve, quite above board and legal. The situation was in any case different in Ireland, where he was born. The 1870 Education Act applied only to England and Wales. I suppose that the next person to be cited will be C.S. Leis, who was also Irish. Theodre Hardy grew up and was educated before schooling became compulsory. And so it goes on. Googling will throw up a lot of information, much of it irrelevant. It's a bit like fishing with dynamite; everything comes up, including much that one could do without.

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  16. "Education was not free for the first 11 years. Fees ranged from 1-6 pennies a week and a family with 5 children could have and income of 18 shillings a week, for instance."

    Yes, I had already mentioned this in the original post:


    "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."

    You say:

    "This is based on your belief that anyone attempting to home educate would have been prosecuted, I believe that they would not have been prosecuted."

    This is a good point. I am not of course claiming that no children at all were home educated between 1880 and 1961. What I am saying is that the practice of home education by parents was viewed as illegal and people who failed to send their children to school or engage tutors or governesses were prosecuted when they came to light. I don't doubt that then, as now, there were families who remained "under the radar" as some call it.

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  17. "What I am saying is that the practice of home education by parents was viewed as illegal and people who failed to send their children to school or engage tutors or governesses were prosecuted when they came to light."

    But you have no evidence to back up this claim. This is just your opinion.

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  18. Not really. The prosecution of Joy Baker which began in 1952 was predicated upon the assumption that the education at home of a child by his parents was actually against the law. The action against Iris Harrison in 1977 was on the same grounds. As I said, prosecutions for not sending children to school were the commonest actions in England apart from those for drunkeness at the end of the Nineteenth Century. I can certainly give examples of prosecutions of parents who claimed to be teaching their own children at home. All failed as a defence until 1961. even after that it was touch and go and it was not until Iris Harrison's case was finally resolved at Worcester in 1981 that the legal position was established, at least as far as the Crown Court was concerned.

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  19. "I can certainly give examples of prosecutions of parents who claimed to be teaching their own children at home. All failed as a defence until 1961."

    Please do so.

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  20. If I were you, I would begin with the book Joy Baker wrote about her experiences with the courts; Children in Chancery (Hutchinson, 1964). Her prosecution did not take place in a vacuum and the courts were drawing upon a lot of earlier cases of precedent. Michael Deakin's book, The Children on the Hill (Deutsch, 1972) is also worth a look for this. Another interesting book is The Erosion of Childhood; Child Oppression in Britain, 1860-1918. this is by Lionel Rose.

    The school-attendance officer was an almost mythical figure of dread between 1900 and 1939. he brooked no excuses and took many prisoners! Quite a few children claimed to have been taught by the parents, but this was no excuse. You might want to read an article in the magazine History of Education about this called, The School Attendance Officer, 1900-1939. It is on page 735 of the November 2007 issue. Looking into the history of the so-called School Board Truant Schools, which later became known as Industrial Schools is also worthwhile for the stories of the children there and the excuses given by their parents for refusing to send them to school.

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  21. I had hoped for reported cases that I could read directly. Books about cases don't really answer as who knows what information is distorted in the re-telling?

    I've read the article in the History of Education and there is no mention of defences against prosecution.

    However, I doubt there are any cases (apart from the usual suspects) that have gone above magistrate court level or they would have been mentioned and discussed on email lists before. Can we really take the views of magistrates as the best interpretation of legislation even if such cases exist (which has not been proven yet)?

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  22. For a view which agrees with some of what I have been saying, but not all, you might care to read this;

    http://eprints.bbk.ac.uk/312/1/Binder1.pdf

    The author cites a case from 1910 which actually says that home education is allowed. He goes on to suggest that the 1944 Act did not really support the idea of home education at all. I find his basic thesis, that children have a 'right' to schooling, very odd!

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  23. Thanks, an interesting document, I have saved it to read more carefully later.

    The quote below appears to support my theory that home education was normal before the introduction of the Education Acts and the acceptable excuse for non-attendance at school of, 'the child is under efficient instruction in some other manner is listed as a reasonable excuse', would have automatically included HE in the minds of the legislators.

    In 1870, unlike in 1944, home education was a ‘normal’ form of education for upper and middle class children, especially for girls and the learning of basic skills by working class children to a certain extent was still compatible with certain forms of child-labour.

    Simon wrote,
    "He goes on to suggest that the 1944 Act did not really support the idea of home education at all. I find his basic thesis, that children have a 'right' to schooling, very odd!"

    Yes. it's a bit like the compulsory 'right' to an education, isn't it? I've always thought that a right is something you should be allowed to do - or not prevented from doing if you wish to do it. Are there any 'rights' that adults are required to take advantage of in law or is it just children and education that are singled out for this special treatment? I suppose if vaccinations became compulsory this would be comparable - the 'right' to be protected from disease. Has there ever been talk of making vaccinations compulsory for adults? I can see that a law if required to stop parents from preventing a child from taking advantage of an education (by making them work or to act as a carer or companion, for instance), but this is not how the law is framed.

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  24. Sorry, copied and pasted too much from a previous post. The 2nd para should read:

    The quote below appears to support my theory that home education was normal before the introduction of the Education Acts and the acceptable excuse for non-attendance at school of, 'the child is under efficient instruction in some other manner', would automatically have included HE in the minds of the legislators.

    ReplyDelete
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