Friday, 14 September 2012
Statute and case law; an important distinction for home educators
First, a little quiz for home educators. What do these four cases have in common?
Bevan v Shears
Phillips v Brown
Harrison and Harrison v Stevenson
R v Secretary of State for Education and Science, ex parte Talmud Torah Machzeikei Hadass School Trust
This was a fairly easy one, since Phillips v Brown was quoted several times here yesterday. Of course they are all precedents relied upon by home educators to justify the legal basis for their activities. Many would probably say that these cases helped establish that they had a right to home educate, although as I have explained before, this not really the way to look at the matter. What else do they have in common? This is a little trickier, so I shall give you all a clue;
These are the years of the cases and it will be seen at once that they took place from almost thirty to over a hundred years ago. So what, you ask? They are still binding today aren’t they? Well, yes and no, but mainly no. Let me explain.
There are two kinds of law. One is statute law, the acts passed by parliament. The other is case law; how the courts interpret the statutes and the judgements which they make involving them. These past cases, also called precedent, are binding on courts in the future; at least as long as the court is on the same level or lower than the one which made the ruling. The reason for relying upon case law is that the laws passed by parliament are often unclear. Take the 1944 Education Act, for example. Today, we think that this plainly provides for the home education of children by their parents, but for the first fifteen or twenty years after it was passed, this was not at all how it seemed to people. That favourite part, beloved of home educators, ‘by regular attendance at school or otherwise’, was generally thought to refer to the provision of teaching by a tutor or governess. It wasn’t until cases like that of Joy Baker that the courts finally agreed that it could also mean parents themselves.
The reason that I gave the list of dates above is that we can see at once that none of these cases are interpretations of the law as it is today. Bevan v Shears looked at the education acts of 1870 and 1880, while the others concerned themselves with the 1944 Education Act. These acts have now been superseded by others; the 1996 Education Act, as amended by Sections 436A and 437, the 1989 Children Act, the 2004 Children Act, the Education(pupil registration)(England) Regulations 2006 and many others which have a bearing upon home education.
The thing to consider is that none of these more recent laws have yet been interpreted by the courts in relation to home education. Local authorities claim that they have the correct view and some home educating parents are sure that they are right. Just as with the earlier laws, such as the 1944 Education Act and the 1870 Elementary Education Act, the situation with regard to home education is not plain. This is because most laws are framed without considering home education; they are really concerned only with children at school. This means that we must try to deduce how they affect home education and the duties of parents and local authorities towards home education by indirect means. This is not entirely satisfactory.
The bottom line is that the clock is ticking for home educators. Currently, they are able to rely upon precedent, some of which dates back over a century, to establish what they see as their ’rights’. This will change if a court case should take place which hinges around local authority actions involving home education in the light of the 2004 Children Act, to give one example.
At the moment it is an open question as to who is right about the correct interpretation of the laws affecting home education which have been passed over the last twenty years or so. The courts have not been asked to rule. The precedents upon which home educating parents have relied for so long are not fixed and immutable, but can alter according to new legislation and case law. It will be interesting to see whether it is a local authority prosecuting a home educating parent or a home educating parent seeking a judicial review who first bring these questions into open court.