Wednesday, 21 July 2010

Providing proof that a suitable education is taking place

According to Ian Dowty, who is of course a lawyer specialising in home education, a recent court case in Oxfordshire ruled that the burden of proof in establishing that a home educated child is receiving a suitable education falls upon the parents. In other words, the onus is not upon the local authority to demonstrate that the child is not receiving an education, but the ball is in the parents' court to show that the child is. This is quite interesting, because many local authorities are dubious about the 'evidence' produced by parents to show that an education is taking place.

Quite a few parents whose children are not at school get irritated to be called upon to prove that they are educating their children. Why can't the local authority just take their word for it? Why do they need evidence at all? Well the reason is of course that everybody lies and an awful lot of home educating parents say anything at all that they think will get the local authority off their backs. Local authorities know this perfectly well and so they require something other than mere words. Parents often tell the local authority officer whose job is to monitor home education a pack of fairy stories and hope for the best. Here is Myra Robinson, a Home Education Advisor from Newcastle;

'Other pupils are unable to produce work samples on demand or demonstrate an understanding of the basics, despite parents' claims about their level of education.
"One girl said she worked in the library, but didn't seem to know where the library was," Ms Robinson said'

This is a fairly typical example of what many local authority officers encounter. Parents send them an educational philosophy, backed up with a diary of supposedly educational activities. Then when they get to meet the kid, it turns out that this is a lot of nonsense. This is one of the reasons, incidentally, that local authorities are so keen to visit. It is often only during such visits that the truth comes to light. Presumably many parents are reluctant to accept visits for the opposite reason; so that they can prevent the truth coming to light. Mind you, maybe Myra Robinson is not telling the truth. After all, she works for a local authority and it could be that she is unjustly maligning home educating parents for sinister reasons of her own. Let's see what a few home educators have to say.

Up in Herefordshire, a well known and vociferous home educating mother gave an interview to her local newspaper recently. During the course of the interview, she repeated what she had already told her local authority;

'Mrs Gxxxx added that Mxxxx is looking to do between six and eight GCSEs at the end of the year.'

Blimey and the kid is only twelve! Small wonder that the local authority have been led to believe that she is a dedicated and fantastically structured home educator. But hang on a moment! What does she say when she is relaxing with her friends of one of her favourite Internet lists?

'We are thinking that GCSE's are going to be a no-no. The stress would stop
his brain working'

See the problem? How can the local authority take seriously what she is telling them? No wonder that they want proof and not just empty words. At the other end of the country, Hampshire County Council served notice of their intention to issue a School Attendance Order upon parents in Alton. Subsequently, they were provided with evidence of this child's academic work. Can you believe it though? They expressed doubts that the work they had been given was actually done by the child. How can people be so suspicious and lacking in trust? What reason could they possibly have had for doubting that the work which they were given was in fact the unaided efforts of the child himself? Well, let's look at another recent example of this same boys work, namely an email which was sent to Penny Jones at the DCSF on November 20th last year. He signed his name and so we can be sure that he wrote the thing. He says;

'I’m not scared of a school attendance order do it go for it. I burn it on the fire like the other one! I’m not scared of you Ed Balls DCSF come on Ed takes us to court I’m soooooooooooo scared! '

All right, stop laughing at the back! It is sheer coincidence that his style of writing is so uncannily similar to that of his father. I am shocked and disgusted that anybody could be so cynical as to assume that the father produced both this email and the written work sent to Hampshire County Council.

I have recently had the impression that some local authorities are becoming a little tougher about the standard of evidence which they require to establish that a suitable education is taking place. Some have attributed this to their behaving as though the Children, Schools and Families Bill was actually passed intact. The case in Oxfordshire which Ian Dowty mentions might well provide another explanation. I have an idea that more local authorities will be adopting a hard line now and requiring a bit more convincing that a suitable education is really being provided to children. I for one find this a very encouraging development.


  1. I suppose I am playing devil's advocate here - but do you really think that most LAs are really concerned about whether the work is actually the child's? I can't imagine there are many parents who can be bothered to forge their childrens work (although perhaps you have located one) when there is the far easier option for the non-educating home educator of merely producing an ed phil and refusing a visit?

  2. You have probably got a point, Julie. Perhaps they just stick it in the file and that's it. However, soem local authority officers do care. I quote Myra Robinson above, but at least one in Essex, Mike Allpress, has also expressed unease about this. As of course has Tony Mooney, the very mention of whose name will have some home educators foaming at the mouth with anger. As for parents being bothered to forge their children's work, there are often discussions about what sort of evidence the LA can be fobbed off with. Although forging work might not be that common, making wild and unsubstantiated claims about what the child is achieving are certainly not rare. As in the case I cited above of claiming that your twelve year old will be taking eight GCSEs within a year..... I think most parents assume that the local authority officer will have forgotton about these by the next annual visit. Perhaps this is the real reason that there was such opposition to the idea of providing a plan for the coming year and later being questioned about the outcomes. It would have entailed a lot more work for the parents in deceiving their local authorities.

  3. It works like this. Under UK law, local authorities have had a law enforcement role for many years. The trigger for them carrying out an investigation in the case of a private individual is evidence that the law has been broken. The burden of proof of guilt is on the local authority. This is for two reasons: firstly it is more difficult to prove innocence than guilt, and secondly, checking up on whether people are acting within the law or not is an expensive exercise that generally ends in social disaster because local authorities are large, powerful, resource-rich organisations and individuals tend not to be. So the imbalance of power is weighted in favour of the individual. Local authorities enforce the law - ie they bring suspects to justice - but a third party, the judiciary, decides whether the suspect is guilty or not. Again, the balance is weighted in favour of the individual.

    This is why primary legislation permits local authorities to make inquiries of home-educating parents only ‘if it appears’ that the child is not receiving a suitable education - ie as if the law is being broken. The statutory guidelines relating to children not receiving an education state that local authorities ‘should’ make inquiries with parents about whether or not their children are receiving a suitable education. This is in direct conflict with the principles embedded in s.7 of the Education Act 1996, and therefore needs clarification. I sought clarification from the DCSF several times last year via my MP and was told each time that the matter would be resolved after the public consultation, after the EHE review, or in new legislation. In order to make the statutory guidance workable, significant changes in primary legislation would be required.

    Giving local authorities powers to assess the educational provision of parents and putting the burden of proof of innocence on parents, significantly changes the import of primary legislation and the constitutional relationship between local authorities and council tax payers. In effect, it gives LAs, not parents, ultimate responsibility for the quality of educational provision, and turns parents into service providers. It introduces an interesting constitutional relationship because it makes LAs and parents accountable to each other.

    This is a matter that touches on some fundamental principles of law and one that is not going to be sorted out through case law or through LAs getting tough or parents and LAs trying to work nicely together.

  4. Yes, I can understand all that; what would be interesting of course is some statistics about the numbers of families who actually produce work/allow visits compared to the ed phil/report ones. Most of my friends produce reports; now I know they 'could' have forged them, but in fact the children concerned are well taught, live interesting lives and I can't imagine that the sort of details given in the reports "sound" suspicious- they are coherent, follow a plan (for example, they may be classical educators and the material used would fit the expected sort of stuff someone who was using a classical curriculum would use) and give enough details of exams/outside activities that could be verified if need be. The LA so far have been perfectly happy with the reports. Now I suppose that were one such family to come to public view as either not educating at all (unlikely to see how this would happen, though) or in a child protection way, then the LA might look a bit embarrassed; but after all, that is the law at the moment (even if you and they might not like that) and there isn't a lot that can be done about it.

    Those who do have visits are a few who actually find it easier - thse may be families of older children who are mid way through GCSES - a quick look at the materials used/early GCSE certificates etc makes it obvious that an education is going on, and save s the hassle of report writing. Or they may be families who want something out of the LA - a family of a statemented child locally has just agreed to a first visit becuase they are hoping to benefit from the funding that may be now available to these children. The third category are the families who are already in difficulty with either social services, the LA or family courts- in these cases having a "professional opinion" may be of benefit to the family. The visits don't just look at previous work done though, so again I can't see that forgery is a live issuee. Some families choose to have these visits at the local HE meetings - so then the "inspector" will see the child joining in with a class, and it also ticks the socializing boxes too.

  5. Also adding- I don't believe that most home educators want to deceive their LA anyway. The actual number of "not intending to home educate" is probably very small; most of those who do have trouble with their LAs want to do a good job, but find it difficult. Like a stuck record - the best way forward would be if the LAs had enough money to offer real support, not just criticism (probably pie in the sky though with current financial issues!)

    I knwo you will say what about the "we know best" parents who won't cooperate - but I think that is a small minority and most may be hidden from view anyway!

  6. Simon - please give a link or a reference to where Ian says this along with a reference to the court case.

    I doubt Ian has changed his stance particularly as the way you explain it above does not fit with primary legislation. I wonder if you have misunderstood?

    The whole thing is a filtering procedure that at the first level is about those where it "appears....a suitable education is not taking place" and only at the point of the 15 day notice to satisfy, under threat of an SAO, does the burden of proof change. The LA should already by that point have presented a few filters.

    After the 15 day notice one enters the full SAO procedure which means that ultimately the case may end up in court where the parent must prove, on the balance of probabilities to a reasonable person, that a suitable education is taking place at that moment.

    This has been the case for at least 14 years if not more.

    Nothing has changed, neither the legislation or the interpretation.

  7. Well I might have misunderstood. Alison. ian Dowty said;

    . 'I have always argued that the LA should have
    the burden of proving that the parent is not providing a suitable education
    but a case earlier this year in the Administrative Court from Oxfordshire
    has established that the burden of proof falls on the parent to show (on a
    balance of probabilities) that their child is receiving a suitable
    education. It was a case in which not all the relevant caselaw was argued as the
    parent did not appear in the Administrative Court and was not represented. I
    still think it's wrong but it will probably mean taking another case to
    the Supreme Court to have it fully argued now.'

    This seems pretty clear to me. what do you think?

  8. "Nothing has changed, neither the legislation or the interpretation."

    I'm assuming here Alison that you understand how precedent can can alter the imterpretation of legislation and how it is binding upon subsequent cases? It is not the legislation which has changed, but a ruling in court. I'm sure that you are familiar with the concept of case law as opposed to statute law.

  9. I thought precedent was binding only on lower courts in certain types of case. Is it always binding in all cases?

  10. It is only binding upon courts equal to or lower than the one which made the ruling. So for example if a ruling is made in the crown court, that would mean that any future crown court cases would be obliged to follow this as precedent, as would lower courts such as magistrates courts. The case could be taken to the Supreme Court which could then change the ruling.

  11. There are many different types of precedent. Not all precedents are binding. Apart from in specific circumstances decisions of Crown Courts are not binding.

  12. Well of course home education in this country is founded upon Crown Court precedents. Remember Iris Harrison? This was a ruling made at Worcester Crown Court which has proved crucial to the development of home education in this country. (Harrison & Harrison v Stevenson (1981) QB (DC) 729/81)

    Tell us a little more about your views on precedent in Crown Courts, Anonymous.

  13. Perhaps I didn't make myself clear about precedent. If a judge is trying a cse, he must be aware of the ruling in similar cases made by courts equal to or superior to his own court. In a Crown Court for example, this would mean that any case involving home education would have to bear in mind the case of Harrison and Harrison and not make a ruling which went against the decision in that case. The judge would now have to keep in mind also the case in Oxfordshire which Ian Dowty mentions and also make sure that his ruling did not conflict with that. If there were a decision in the Supreme Court, then that would be binding upon all inferior courts.

    "Apart from in specific circumstances decisions of Crown Courts are not binding."

    I am not at all sure what Anonymous means by this. A judge in a Crown Court can create precedent by his ruling on a point of law. I hope that Anonymous will explain a bit more about his or her reasons for this statement as it would make an interesting discussion, Particularly, as I said above, in light of the Iris Harrison case.

  14. "I hope that Anonymous will explain a bit more about his or her reasons for this statement as it would make an interesting discussion,"

    Not the same anonymous, but according to this page, Judicial Precedent, Magistrates Courts are possibly bound by Crown Court precedents and a Crown Court must follow precedent set by all higher courts only, so not other Crown Courts (though I suspect they will probably take them into consideration and usually go along with it for an easy life).

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