Home Education Heretic: Statute and case law; an important distinction for home educators

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;

1911

1980

1981

1985

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 These acts have now been superseded by others; the 1996 Education Act, as amended by Sections 436A and 437, the 1989 Children Act, the 2004 Children Act, the Education(pupil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.

19 comments:

Anonymous14 September 2012 at 02:47
You are forgetting R v West Riding of Yorkshire, 1910. According to Daniel Monk, senior lecturer in law at Birkbeck, the R v West Riding of Yorkshire case (1910) is the only recorded case in which the right to home educate has been challenged. Future cases contended only the content and form of the education provided. In this case, the school board prosecuted a father, Mr Broadbent, for failing to send his two daughters to the local school, his excuse being that he was educating his children himself. He lost his case in the magistrates court but won in a higher court. The magistrate refused to hear evidence of education provision, ruling that once an attendance order is issued, he only needs to uphold it. However, Chief Justice Alverstone ruled otherwise and said in his judgement:

"it would be a very strong thing to wholly deprive the parent of the right to give efficient elementary instruction to his own child. . . and I think it would require clearer language than the section contains to deprive him of that right"

The 1870 Act stated that education could be provided at school or by, ‘efficient instruction in some other manner’. This is the origin of the 'or otherwise' expression in the 1944 Act. Even though this phrase was missing from the 1987 Act (under which this case was tried) the judge found in favour of the defendant because the 1876 Act contained a general provision that stated that definitions under that Act should be interpreted in the same way as those in the earlier 1870 Act. All Education Acts, apart from the 1870 Act, have explicitly allowed home education and Monk contends that because pre 1944 cases are still cited in discussions of the present law, consequently there is no substantive distinction between the expressions, 'in some other manner' and 'or otherwise'.

Simon said,
"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."

This form of home education is still current today, though rare. I fail to see a reason for a distinction between tutor/governess and parent provided home education since both have always existed and are covered by the same law. Certainly I've read of people being educated at home by their parents historically, as well as by governesses. According to Monk, "Tracing the ‘right to home educate’ back to 1870, rather than taking 1944 as the starting point, is significant for a number of reasons. In 1870, unlike in 1944, home education was a ‘normal’ form of education for upper and middle class children"

Simon said,
"It wasn’t until cases like that of Joy Baker that the courts finally agreed that it could also mean parents themselves."

This case was about the content of home education provision, not the right of a parent to home educated. The LEA initially asked Joy Baker for information about the child's home education. They specifically asked for the timetable and schemes of work her son would follow. It was only when she refused to provide this information because she did not use timetables and schemes of work that an SAO was issued (and ignored). Joy Baker was taken to court because she claimed that a suitable education was being provided by the activities and pursuits her children followed at home. There was no question about her right to home educate, just about the suitability of unschooling as a method of education.
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Simon Webb14 September 2012 at 03:11
'The 1870 Act stated that education could be provided at school or by, ‘efficient instruction in some other manner’. This is the origin of the 'or otherwise' expression in the 1944 Act.'

Actually, the phrase stems from another part of the 1870 Forster Act, that which says:

'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'.

'All Education Acts, apart from the 1870 Act, have explicitly allowed home education'

They make no mention of home education so cannot be said to explicitly allow it.
'
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Simon Webb14 September 2012 at 04:13
'I couldn't find the text you quote in the Act despite carrying out a search of the document. Can you provide a section number? The search software is probably not infallible.'

Ha, you are quite right about this! I was not reading my own notes properly. The quoatation I gave was actually from the speech W. E. Forster gave to parliament introducing the 1870 Elementary Education Act. This was on February 17th 1870.

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Anonymous14 September 2012 at 08:29
where you and LA go wrong is to think you can order people to accept home visits meeting and monitoring by hostile LA officers councils.you can have all the reviews you like judges looking at it but you can not change the fact that a number of home educators do not want anything to do with they LA and do not trust they LA until you can resolve that nothing will change.Your way is a stick but if you wield a stick do not be surprised if a bigger stick is used back on you and LA what is needed is more carrot!
I would never allow a child of mine to meet with an LA officer!
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Anonymous14 September 2012 at 09:10
Simon said,
"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."

An interesting and related discussion on Hansard from 1 July 1875. After detailing the hardships faced by poor people being prosecuted for failing to send their children to school (which included withdrawal of their weekly Poor Law allowance even though the family's outgoings for rent, food and school fees already exceeded their income) there is a discussion about how the enforcement of the compulsory education law is being carried to excess (and that officers were performing their duty in a perfunctory manner, sweeping in those waifs and strays in a peremptory manner). Mr Sandford describes the notices sent to parents:

"These notices were to the following effect:— "Take notice that you have been guilty of a breach of the law in that you have neglected to send your child to an efficient school, whereby you have rendered yourself liable to be apprehended and brought before a magistrate." A child might be receiving efficient instruction at home from its parents, in which case the latter would certainly not be liable to proceedings."

This shows that it was considered normal for children to receive efficient instruction at home from their parents, and that these people would be harrassed in error by these notices. As I said earlier, I've read of many people who were educated at home by their parents before and after the 1870 Act (I'm sure I've posted a list of links to this blog before to support this assertion). Home education by parents was normal and fairly common. As to it historically being a middle and upper class activity; our poor today are more the equivalent of the middle classes then. There is no comparison between the poor of the 1870's and the poor of 2012. Just read the descriptions on Hansard if you doubt this.

http://hansard.millbanksystems.com/commons/1875/jul/01/elementary-education-act-1870-compulsory
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Anonymous14 September 2012 at 16:14
Simon said,
"Ha, you are quite right about this! I was not reading my own notes properly. The quoatation I gave was actually from the speech W. E. Forster gave to parliament introducing the 1870 Elementary Education Act. This was on February 17th 1870."

I've been wasting a lot of time on Hansard - I blame you, Simon! Much of this page is of interest to those with an interest in the history of education, but I'll only quote a bit. Again it suggests that, even in 1918, home education by parents was not unknown.

"If a parent comes before a judicial body and says, "It is quite true I do not send my child to school at all. I do not wish to send him to school. I do not approve of the influences to which he may be subjected when at school." The parent has a right to say that. I think he has a right to say, "I will not send my son to learn with a number of other boys. I prefer that he should be subjected entirely to home influences." He may give evidence that he and his wife, or persons whom he employs, are quite competent to give a good education at home. He may say, "I prefer that my child should be so educated at home," or, "I prefer that he should gain his education by travel," or in fifty other ways which the Board of Education might consider quite freakish and crankish."
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Anonymous14 September 2012 at 16:53
Another couple of pages and quotes - sorry! 1918 again. Is this the first use of the phrase, 'home education'?

"But, having said that much, I think that all who have taken an interest in the Debate would agree that the power of the parent to give home education, or to send the child abroad, or do things of that kind must equally be safeguarded. And our great difficulty with regard to this Clause is that it is much too wholesale and wide sweeping. Some of the most eminent men now living have been educated entirely at home, and it is a quite conceivable use of these powers to hold that that is not efficient instruction and to force the child into the elementary school. I do not think that that would meet with the approval either of this House or of the country generally."

http://hansard.millbanksystems.com/commons/1918/may/30/clause-8-provisions-as-to-compulsory#S5CV0106P0_19180530_HOC_305

And another, from 1936:

"There is no law that children must go to public elementary schools, but only that children must be properly educated. Thousands of children are educated at private schools or at home, and if the education is sufficient no law can compel them to go to school."

http://hansard.millbanksystems.com/commons/1936/may/26/new-clause-saving-for-trainees-in#S5CV0312P0_19360526_HOC_320
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Simon Webb15 September 2012 at 00:58
These are extremely interesting quotes; thanks for putting them up here, I am sure that others will also want to see them. Slightly disturbing that I am apparently not the only one who trawls through Hansard over the last century or two looking for such things!
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Anonymous15 September 2012 at 15:44
Another quote from one of the previously quoted Hansard pages. I've heard it mentioned that it was originally hoped that the compulsory nature of the Education Acts would be temporary. I've also heard people argue compulsion is what turns many people, children and adults, against education. This member of parliament said much the same in 1918:

"Compulsory education is, no doubt, a good thing to meet a neglectful part of society, but those who introduced compulsory education in the Act of 1870, with which my first acquaintance with educational administration began, always felt that compulsory education would best prove its success by the fact that in a few years it would show itself to be unnecessary. I am very sorry indeed, looking back upon nearly fifty years now, that that has not been the case, and that the pressure which seems to increase in this House to make more and more stringent rules with regard to obligations has not increased the anxiety, the ambition, and the personal interest of parents, but has diminished it, and it is just as well we should recognise it. Human nature is a very cantankerous and difficult subject, and very often things we are quite ready to do when we are left to ourselves, as soon as they are made obligatory we begin to kick against them. Compulsory and obligatory education was, no doubt, necessary for neglectful parents. In my own country of Scotland, except for the criminal classes, there was not a parent who was not proud to have his child educated. That has rather died out than increased under compulsory education, and now you are giving in this Clause a new and very serious turn to the screw."

http://hansard.millbanksystems.com/commons/1918/may/29/clause-8-provisions-as-to-compulsory#column_925
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Anonymous15 September 2012 at 15:49
And this, from the Archbishop of Canterbury, in 1876:

"Now, what is the great aim of this Bill? I suppose it is to educate by compulsion. I do not think compulsion the highest or most desirable mode of securing education. The only object of having compulsion is in order that, for a generation or two, you may convince men of the blessings of education who are at present not sufficiently educated themselves to understand and appreciate these blessings. I hope, however, the time will come when you may repeal the clauses as to compulsion, and when parents will be as unwilling to deprive a child of his education as they would be to starve him, and so deprive him of his natural food. I have alluded to the country on the other side of the Tweed, and cannot help mentioning what was told me by one now deceased (the late Mr. Edward Ellice), of his recollections of the Highlands in his early days, when the shepherds on the remote mountains were so desirous that their children should be educated, that during the summer they sent them to schools many miles distant, over hill and flood, and during the winter took care that their children should not want teachers, for the boys from the schools in the nearest towns were then lent out to act as private tutors in these shepherds' hovels. It is impossible to overestimate the importance of such a measure as this, if it really fulfils the purpose for which it is intended. Nations change their character very rapidly. A year or two of slavery or of licence altogether destroys the character of a nation; and a single generation of well-enforced compulsory education may, and I trust will, so influence for good the generation which follows that compulsion may become altogether unnecessary. For these reasons I shall support the Bill.

http://hansard.millbanksystems.com/lords/1876/aug/08/elementary-education-bill#S3V0231P0_18760808_HOL_13
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Simon Webb16 September 2012 at 00:34
There was indeed huge opposition to the idea of compulsory education, as soon as the idea was mooted. It was viewed as being state interference on a massive scale. The Newcastle report, The State of Popular Education in England, put it like this in 1861:

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 by religious and political.'

Then, as now, Germany, or more accurately Prussia, was cited as the system to avoid at all costs!
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Anonymous16 September 2012 at 01:24
Simon said,
"Then, as now, Germany, or more accurately Prussia, was cited as the system to avoid at all costs!"

Some people argued against aspects of the Prussian system (some thought the compulsory nature was un-British), but many held it up as an example to be followed (though no doubt attitudes changed around the time of the first world war). Here are various members of parliament speaking in 1870:

"He had an examination made at Loughborough, and he wished he could place before the noble Lord the Member for North Leicestershire the specimens of writing and arithmetic of the children at work there, and those of children of the same age at work in Saxony, Switzerland, or Prussia. The contrast was something which was enough to make an Englishman blush for his country...

...but his observation of the system, as adopted in America and in Prussia, had made him a convert to the principle of compulsory education...

...The earnest friends of national education desired to see England become as well educated as Prussia and Saxony, and would not rest satisfied with simply bringing schools within the reach of every child in the kingdom...

...ow, during the Recess he (Mr. Mundella) had sent some printed copies of our 6th standard to friends of his in North Germany, Switzerland, Prussia, and Saxony, with the inquiry how many children left school in those countries without acquiring that amount of education. The answer was that the English 6th standard was below the lowest Saxon, Prussian, or Swiss standard, even for country schools...

...The hon. Member for Sheffield had spoken of the love of the Bible as being implanted in the minds and hearts of Englishmen, and as being the foundation of our poetry and philosophy. If that meant anything it meant that it should be read in all schools as it was in Prussia."

http://hansard.millbanksystems.com/commons/1870/mar/18/adjourned-debate-third-night#S3V0200P0_18700318_HOC_54

"A great deal had been said about the magnificent results which had attended the working of the educational system of Prussia, where the parents paid school fees.

http://hansard.millbanksystems.com/commons/1870/jul/01/committee-progress-30th-june#S3V0202P0_18700701_HOC_22
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Simon Webb16 September 2012 at 02:01
'Some people argued against aspects of the Prussian system (some thought the compulsory nature was un-British), but many held it up as an example to be followed (though no doubt attitudes changed around the time of the first world war). Here are various members of parliament speaking in 1870:'

This is of course also true. If you can find a copy of the Taunton Report of 1868, officially called the Schools Inquiry Commission, then you will find the Prussian system debated at length.

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