Every so often home educators catch hold of some phrase and before you know it you are seeing it on every blog, list and forum. Ultra vires is one of these, ‘innocent until proven guilty’ is another. Local authorities must be reminded that home educating parents are ’innocent until proven guilty’ if they should happen to ask about a child’s education. Most home educating parents simply parrot this expression without having the least idea what they mean by it. It ties in with the idea which I explored in a recent post, that many home educators like to feel that they are being persecuted. The idea that the government or local authority should wrongly be treating them as guilty of something fits in neatly with this craving for persecution. Let us look at the idea of ‘innocent until proven guilty’ and see just what these characters think they mean by it.
Commenting on a recent post of mine, somebody said:
There is a law that states that we must provide a suitable education. You are either
innocent or guilty of breaking that law. What's so difficult to understand about
that?
This is of course, complete nonsense. Nobody is breaking any law by not providing her child with a suitable education and I have no idea why anybody would believe this. Still, many home educators appear to think that this is so. Perhaps we can clear up this misunderstanding. If I have care of a child aged between five and sixteen and do not cause him to receive an education, I am not committing any sort of offence, either criminal or civil. If somebody suggests that my child might not be receiving an education, this cannot mean that they are accusing me of being ‘guilty’; there is nothing to be guilty of. I am not breaking any law by failing to educate a child, nor can I be arrested nor any civil proceedings be brought against me by anybody. The whole concept of innocence or guilt simply does not apply under those circumstances. Guilty of what, exactly? The thing is meaningless. I am not, even theoretically, guilty of breaking any law.
The only time that the idea of innocence or guilt could possibly enter into a discussion of a child’s education in this country is if the child is enrolled at a school or the subject of a School Attendance Order which names a specific school which he should attend. None of this applies to home educators. Their children are not enrolled at school and as many Freedom of Information requests have established, School Attendance Orders are issued my most local authorities perhaps once every couple of years and even then, hardly ever to home educating parents. Here is the wording used in School Attendance Orders:
http://www.legislation.gov.uk/uksi/1995/2090/schedule/made
It will be seen that the offence would be not failing the duty to provide the child with a suitable education, but one of ignoring the order itself. The offence is created and comes into being only by the serving of the order and relates only to that. No SAO, no offence.
Nobody in this country could ever be taken to court for not providing a child with an education; it is not an offence. Therefore even the most zealous local authority officer could not suspect a home educating parent of committing an offence. The idea of ’innocence’ or ’guilt’ is utterly without meaning. The only time that any offence could ever be taking place would be if the local authority issued an SAO and that simply does not happen. It would only be at the moment that a School Attendance Order was served on a parent that even the very possibility of an offence was created.
As I said at the beginning, this really has more to do with the widespread desire of many home educators to believe themselves victims of persecution than anything else. They want to believe that heartless officials are falsely accusing them of breaking the law. One more time; it is not against the law to keep your child from school and fail to educate him. Nobody could, even in theory, be taken to court for this. The only way that you could fall foul of the law is if your child is a registered pupil at a school or fails to attend the school named in a School Attendance Order. Unless this is happening, you are not breaking any law, nor could anybody even suspect you of breaking any law regarding the education of your child.
One final time, unless any readers have actually been served with a School Attendance Order or have children who are registered pupils at a school and are not being sent regularly, there can be no possibility of any offence and consequently no talk of innocence or guilt. Forget the expression 'innocent until proven guilty'; it does not and cannot apply to you. No mechanism exists for prosecuting anybody for failing to abide by the duty of causing a child to receive a suitable education. Prosecutions can only be brought with regard to failing to send a child to school.
Rubbish Simon.
ReplyDeleteThere is a duty in law under section 7 of the Education Act 1996 and if you don't fulfil that duty you are in breach of the law.
'Rubbish Simon.
ReplyDeleteThere is a duty in law under section 7 of the Education Act 1996 and if you don't fulfil that duty you are in breach of the law.'
I do not have the strength to go again into the difference between neglecting a duty and breaking a law. Would you care to give us an example of a prosecution for breaching this law? Or even the way that such a prosecution could be framed in terms of the law?
Let us try once more, because when even Alison Sauer appears to misunderstand the legal situation, it does not bode well for others! Imagine that a parent was not following her duty under the 1996 act and failing to provide a suitable education for a child. Does anybody believe that this is actually an offence and that action could be taken against such a person for neglecting this duty? This is of course not the case. Nobody has ever been prosecuted for breaching this law, nor would it be possible, even technically, to bring such a case.
ReplyDeleteOh Simon...really?
DeleteOf course its a law. Whether anyone believes that that this is actually an offence or that action could be taken against for neglecting this duty is irrelevant; its STILL a law.
The fact that nobody has ever been prosecuted for breaching this law is strong enough evidence for NOT visiting all home educators, because there is no call for it. This does not been it should no longer be considered a law.
The SAO is just the process followed when the policing authority believes you are breaking the law, much like the process the police go through when they arrest someone. Section 437 of the Education Act 1996 states:
ReplyDelete"If it appears to a local education authority that a child of compulsory school age in their area is not receiving suitable education, either by regular attendance at school or otherwise, they shall serve a notice in writing on the parent requiring him to satisfy them within the period specified in the notice that the child is receiving such education... [followed by several prescribed steps]"
So if the LA believes the law requiring the provision of a suitable education is being broken, they will take the described actions.
The government seems to believe that the law requires parents to provide a suitable education. http://www.direct.gov.uk/en/parents/schoolslearninganddevelopment/choosingaschool/dg_4016124. They say, "as a parent you are required by law to ensure your child receives full-time education suitable to their age, ability and aptitude". If something is required by law, it is possible for a law to be broken.
Ultimately you will be found guilty of breaking a law if you fail to defend yourself against the SAO. How do you defend yourself against this? By proving that you are providing a suitable education. If you cannot prove you are providing a suitable education you will be found guilty. Therefore you are are guilty of breaking a law if you do not provide a suitable education.
ReplyDeleteSimon said,
ReplyDelete"The only way that you could fall foul of the law is if your child is a registered pupil at a school or fails to attend the school named in a School Attendance Order."
But the SAO only applies if you cannot show you are providing a suitable education. If you can do this, the SAO is not worth the paper it's written on. As mentioned above, the SAO is just the mechanism used to uphold the section 7 law.
'Ultimately you will be found guilty of breaking a law if you fail to defend yourself against the SAO. How do you defend yourself against this? By proving that you are providing a suitable education. If you cannot prove you are providing a suitable education you will be found guilty. Therefore you are are guilty of breaking a law if you do not provide a suitable education.'
ReplyDeleteAs I explain above, it is the serving of the SAO which creates the offence. You can be convicted of disregarding a School Attendance Order, but not of neglecting your duty under the 1996 Act. This is in any case not relevant, because I have yet to hear of a home educating parent being prosecuted in recent decades for not obeying a SAO.
Relax! If your child is not registered at a school and you have not been served with an SAO, you are not breaking any law , nor are you liable to be prosecuted. Nobody can say that you are guilty of anything.
I object to the inference that Alison Sauer knows anything better than anyone else. As we have seen in recent times, she has been misleading the LAs in her training of them exactly because she misinterprets the law. Training which she is no more qualified to carry out than any other home educator, especially in view of her own learning difficulties. She has misled all home educators by denying her involvement in the rewrite of the guidelines; she is hardly an authority.
DeleteSimon of course prosecution is possible, but only once certain processes have taken place. Those processes are, as most of us know 1) the LA should make an informal request for information, 2) the LA should give formal notice under Section 437(1) that the parent should provide information, 3) in the absence of information, the LA should issue an SAO, 4) where the parent fails to comply with the SAO and/or fails to provide any information, the LA may prosecute the parents pursuant to Section 443 of the Education Act 1996.
You are being pedantic Simon. A prosecution is possible. The particular sections of legislation are less important that the fact that you are giving the false impression to readers that no prosecution is possible.
As is true in any case, if you provide evidence to the Magistrate that you are in fact discharging your duty under Section 7 of the Education Act 1996, then you are acquitted of the offence of failing to ensure that you are providing an education under Section 7. Admittedly the legislation is neither clear nor elegant, but it is what we have.
It is entirely likely that there have been no convictions for breach of an SAO, because the parent has gone on to satisfy the Magistrate that they are fulfilling their Section 7 duty, and the parent has been acquitted. As the then Lord Justice Donaldson said, the parent has the right to be difficult and force the LA to take them to court.
Perhaps the family in Cornwall were incorrectly counselled in the legalities of home education by those purporting to understand it as mentioned elsewhere?
'But the SAO only applies if you cannot show you are providing a suitable education. If you can do this, the SAO is not worth the paper it's written on.'
ReplyDeleteThey are not served on home educating parents in any case. I have been trying for the last few years to track down a verifiable case of a home educator being prosecuted for disregarding an SAO. I have been unable to find a single case.
I think records are sealed for 100 years. Certainly this has been my experience when searching archives.
Delete'The SAO is just the process followed when the policing authority believes you are breaking the law, much like the process the police go through when they arrest someone.'
ReplyDeleteNothing of the sort. If the police suspect somebody of stealing, they will arrest the person and charge him with theft. If the local authority suspect somebody of failing to educate a child, they cannot accuse the person of doing this and attempt to prosecute her. They can instead direct that she send her child to school. If she does so, then no offence has been committed. In the case of the police, they deal with what they say people have done which breaks the law. In the case of local authorities, they create a possible offence by ordering parents to send their children to school and then prosecuting them if they fail to do so. Nobody has ever been accused in court of failing to provide their child with a suitable education; it is not an offence.
If it's impossible to break the law by failing to provide a suitable education, then the only logical conclusion is that section 7 is not a law since all laws can be broken. If this is the conclusion reached from your argument, what is section 7? A recommendation? If it's a recommendation, why does the LA have the power to force parents to send their children to school if they don't follow a recommendation?
DeleteOn the other hand, if you believe that some laws set by statute are impossible to break, why would parliament bother drawing up the law?
If a parent does not provide a suitable education, they are not abiding by section 7. Section 7 is a law. How is *not* abiding by a law *not* breaking the law? How prosecutions are handled once an offence becomes known is irrelevant, the original law has still been broken.
ReplyDeleteTheft if still breaking the law even if nobody knows about it and the police do not prosecute as a result. Not providing a suitable education is still breaking the law even if the LA know nothing about it and are consequently unable to draw up a SAO.
'Theft if still breaking the law even if nobody knows about it and the police do not prosecute as a result. Not providing a suitable education is still breaking the law even if the LA know nothing about it and are consequently unable to draw up a SAO.
ReplyDelete'It is true that theft is still breaking the law even if nobody knows about it. people accused of theft are accused of breaking the law against theft. Even if the accused thief returns the goods which he has stolen, he can still be taken to court. People are not however accused of not abiding by Section 7 of the 1996 Education Act. They are offered the opportunity of sending their child to a specified school and then prosecuted if they choose not to do so. This is how the cases differ. if one were breaking the law by not following the duty in Section 7 of the 1996 Education Act, then a prosecution would be possible for this; it is not possible.
Isn't the distinction irrelevant since one leads to the other?
DeleteI hope that I have made the distinction clear between being accused of theft and not following the duty of causing a child to recieve an education. Consider this case. The police, instead of prosecuting people for theft, begin writing to them and offering them the chance to return what they have stolen, on the understanding that the matter would be forgotten. Those who refuse are then taken to court for not for an offence under the 1968 Theft Act, but for ignoring the police offer to clear the matter up by giving back the stolen goods. Try and bear in mind that when a School Attendance Order is issued, a vary rare event, nothing will ever happen to a parent who has not been educating the child. If she had been breaking the law, this would not of course be the case. Does anybody really think that if it were possible to bring prosecutions of this sort, that some local authority would not have done so by now? Once again, I must repeat that nobody has b=ever been prosecuted for neglecting their duty under the 1996 Education Act to cause a child to recieve an education. They are offered a school place and then prosecuted if they refuse to send their child to school.
ReplyDelete'Isn't the distinction irrelevant since one leads to the other?'
ReplyDeleteWell of course, in the first place I do not know of any case where a home educating parent has actually been prosecuted in this way. It may be theoretically possible, but in practice it does not happen. Secondly, the cases are quite different. You can be taken to court for stealing; you cannot be taken to court for failing to provide your child with an education. Any prosecution would hinge only around whether or not you had sent the child to school. if you had, then the matter would not even reach court.
"Any prosecution would hinge only around whether or not you had sent the child to school. if you had, then the matter would not even reach court."
ReplyDeleteProvision of a suitable education at home is a defence against an SAO, so it hinges on provision of education, not school attendance.
'Provision of a suitable education at home is a defence against an SAO, so it hinges on provision of education, not school attendance.'
ReplyDeleteQuite true, as you will see from the link in my original post. I was making the point that sending the child to school will end the prosecution at once without any further debate. If you send the kid to school, nobody will then be able to debate further whether or not you were previously providing a suitable education. This is not the case with crimes, where making restitution will not end a prosecution.
'I think records are sealed for 100 years. Certainly this has been my experience when searching archives.'
ReplyDeleteBut newspaper reports are not, neither are court reports; many of which can be accessed online. Also not sealed are the lips of home educators who know of any such cases. Despite frequent requests for information, I know of no verifiable case of a home educator being prosecuted in this way in recent years.
I would be interested in links to court reports as I've been unable to find any. I have heard of cases where Ian has been involved recently, but obviously confidentiality has limited the information available. Maybe you should contact Ian for general information?
DeleteNone in a couple of decades as I recall.
ReplyDelete'I would be interested in links to court reports as I've been unable to find any.'
ReplyDeleteSorry, I didn't mean to say that I know of any such cases, only that the transcripts of court cases are freely available. If you google the name of your local crown court, for instance, you will find details of cases heard there recently. I'm not sure why people would keep quiet about School Attendance Orders if they were being issued. Even in places like Birmingham, which has a bad reputation for home education, they never issue SAOs.
"If you google the name of your local crown court, for instance, you will find details of cases heard there recently."
DeleteBut SAOs would be heard by a magistrate, and I've not been able to find any court reports for these. Maybe I'm using the wrong search terms? Could you give me a link to one you've found?
BTW, I don't mean that I want links to SAO listings. Any magistrate court listings with details of charges, verdicts and sentences would be great.
DeleteWell yes, Birmingham were at fault for *not* issuing an SAO (and a lot more) in a very well known case, as I'm sure you are aware.
DeleteI've done a quick search of www.whatdotheyknow.com for the FOI requests of August 2009 and found the following SAOs issued against EHE families on the first page of links:
Delete1 in the Isle of Wight
3 in Lewisham
1 in Bexley
2 in Sandwell
I'm sure there must be more since I only opened about 3 links where SAOs had not been issued. How hard have you looked for cases?
Simon, you must have a very short memory because you've been given this information before after making similar arguments.
DeleteThere was one this year.
ReplyDeletehttp://www.cornwall.gov.uk/default.aspx?page=30737
Thanks for that, Dave H. There are more details here;
ReplyDeletehttp://www.thisiscornwall.co.uk/Parents-failed-educate/story-15421187-detail/story.html
It seems that this is only the second case of its kind ever in Cornwall. I would be curious to know if anybody knows the family and can tell us why they would not provide the council with any information?
Those phrases that home educators latch on to, they're known as memes. Similar to how chimps gibber in a certain way and learn to poke sticks into mounds to get insects.
ReplyDeleteSome chimps know the gibber but can't get the bugs no matter how hard they try.
Other chimps climb a tree to eat ripe fruit.
We had a SAO issued once but when we wrote to Ed Balls M.P showing him the lies HCC had told about us a few weeks later the SAO was revoked! and have not heard anther peek out of the council! As for the SAO we burnt it on councilor Dr Tony Ludlow fire as he pointed out we may as well use it for something useful!
ReplyDeleteBut Peter - your SAO was issued on 7th July 2004 - a lot of water has passed under the bridge in 8 years! (and I doubt HCC has issued an SAO since!
ReplyDeleteno we had anther one the 7th of July one was just a notice we had SAO issued in 2007 what water has passed Julie? i do enjoy our chats Julie
ReplyDeleteWe are proud we had an SAO and took no notice of it! lies where told to issue it and the head of the school made a complaint about it to! as did the councilor for our ward!
i must buy you an apple one day julie!
Peter a national chess master of the english chess federation now Julie you going to conglat him?
ReplyDeleteDoes he still talk like that PC chess software package?
Delete'Julie you going to conglat him?'
ReplyDeleteMy advice would be against this; it is still illegal in this country to conglat a child of that age.
I am sure Peter's successes are to be commended - but he must be at the end of compulsory education this year - isn't he now 16? What are his plans for next year then?
ReplyDeletePeter going to college the college was very pleased to have a National chess master Hampshire adult chess champon attend its college Peter had no problem at all in geting in! he is 16 Julie he told the college about the lies told by hampshire LEA! i do enjoy our chats julie!
ReplyDeleteEnton College?
DeleteIs this Alton then? What is he planning to do? Good college with excellent A level results.
ReplyDeleteyes it is Alton and it does have very good A Level results and we live within walking distance of the college according to the college because Peter got a high iq 0f 170 if he shows promise in the GCSE course for Maths there will allow him to do A level maths he also going to do media study and IT but due to his high iq 170 and his chess becomeing a chess master there feel if he gets on with the tutors college staff he will take more A levels there where amazed by how many chess tournments he had won!Peter applyed himself and meet the college staff on his own he did it my ob is done i guess!
ReplyDeletemaybe i could lend a hand in one of your classes Julie? i promise to behave most of the time! if im naughty you could sit me next to you! LOL
One of my children is already at there!
ReplyDeleteOops - my standards are slipping....should have said
Delete"is already there"
A whole different ball game now.
ReplyDeleteamazing Julie maybe your daughter will see Peter at college or better still i see you at one of those parents evening. hope your going to put in a good word for Peter and me with the Principal she a women to not met her yet maybe she want a game of chess LOL you must know my hometown well then if you have to visit the college Julie?
ReplyDeleteI think you're about to find out that a Principal isn't anything like a headmistress.
ReplyDelete