Monday, 1 October 2012
Clearing the ground…
One of the frustrating things about this blog is that I often assume that readers, being composed in the main of home educators and former home educators, will share with me a common knowledge about the situation regarding home education in this country. Many do not and I find myself having to explain even the most basic details before I can even think of progressing to a discussion of more complex matters, such as the possible need for new legislation. To give one example of this, somebody is still arguing on a thread which began a few days ago as to whether the five outcomes of the Every Child Matters agenda are binding in law. This is important, because any and all debates at every child protection conference in England will be dominated by Every Child Matters and the five outcomes. If the five outcomes are, as some described them in the comments here, no more than, ‘a policy of the last government’ or part of ‘a discussion paper’, then why on earth are social workers, teachers and local authority legal departments behaving as though they are the law of the land? It is this kind of nonsense that makes it very hard to get a proper discussion going here.
Every Child Matters was a green paper, largely concerned with child protection. One of its key recommendations was that professionals involved with children, including local authorities as a whole, should work actively to ensure that every child had access to five outcomes. These are; to be healthy, to stay safe, to enjoy and achieve, to make a positive contribution and to achieve economic wellbeing. The green paper gave rise to an act; the Children Act 2004. This enshrined in law some of the Every Child Matters agenda. For instance, the five outcomes became legal duties for local authorities to work towards. The wording was changed slightly and so the original five outcomes from ECM became;
physical and mental health and emotional well-being; .
protection from harm and neglect; .
education, training and recreation; .
the contribution made by them to society; .
social and economic well-being.
This means that the five outcomes of Every Child Matters are now part of the law of England and everybody working with children is mindful of this. Local authorities have a duty to work towards ensuring that all children in their area have access to these outcomes. It will be observed that education is one of them. The section about economic well-being is also connected with education, because the more qualifications a child gains, the more likely she is to get a good job and stop being poor.
I am aware, and so are local authorities, that some non- statutory guidance suggests that the 2004 Act lays no new duty upon local authorities as regards elective home education, but there is more to the case than that. I don’t propose to discuss that in detail; all that I felt I needed to do was demonstrate that the five outcomes of the Every Child Matters agenda are alive and well and that local authorities have a binding legal duty to ensure that every single child in their area, not just those at school, have access to them.
Having cleared up this misunderstanding, I hope in the next few days to return to the question of the urgent need for new legislation.
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Sorry, Simon, I'm being thick here because my misunderstanding has just grown. You say 'some statutory guidance suggests that the 2004 Act lays no new duty upon local authorities as regards elective home education,' and then you say that it does.
ReplyDeleteBoth can't be right.
Also 'local authorities have a duty to work towards' isn't the same as 'local authorities have to ensure...'
Or have I missed something?
Finally, if it was a problem with the law, then I would expect all LA's to have the same problem. They clearly don't, so that suggests to me that the problem is with those interpreting the law, and the solution isn't to change the law to one that some LA's would not only like it to be but have been acting as if it was for years.
I don't think it is a good idea to give more powers to people who have already shown that they will misuse what they've got and not use parts of the law that would allow them to deal with a perceived problem. At the moment, any LA who feels that a child isn't receiving an education should use the procedure leading to a SAO. If they choose not to, then that suggests that their concern isn't strong enough to warrant it or they're not sure it'll stand up to scrutiny in a magistrates court.
You've frequently said that the use of SAO's is as rare as hens teeth. Doesn't that suggest something to you about the seriousness of the problem?
'Sorry, Simon, I'm being thick here because my misunderstanding has just grown'
ReplyDeleteI don’t wonder that you are confused Anne, so are many other people! The difficulty is that both local authorities and home educators claim that the law is simple and clear, but it is anything but. Here is what the 2004 Children Act actually says:
(1)Each local authority in England must make arrangements to promote co-operation between— .
(a)the authority; .
(b)each of the authority’s relevant partners; and .
(c)such other persons or bodies as the authority consider appropriate, being persons or bodies of any nature who exercise functions or are engaged in activities in relation to children in the authority’s area. .
(2)The arrangements are to be made with a view to improving the well-being of children in the authority’s area so far as relating to— .
(a)physical and mental health and emotional well-being; .
(b)protection from harm and neglect; .
(c)education, training and recreation; .
(d)the contribution made by them to society; .
(e)social and economic well-being. .
Now the common sense way of reading that would be that all local authorities have a binding duty to make arrangements with a view to improving the education and economic well-being of any child in their area. This is how some interpret the act. However, the 2007 guidelines say that:
The Children Act 2004 (“the 2004 Act”) provides the legislative framework for developing
children’s services as detailed in Every Child Matters: Change for Children. The background
and aims of Every Child Matters can be found on its dedicated website6. Section 10 of the
2004 Act sets out a statutory framework for cooperation arrangements to be made by local
authorities with a view to improving the well-being of children in their area.
2.14 Section 11 of the 2004 Act sets out the arrangements to safeguard and promote the welfare
of children. However, this section does not place any additional duties or responsibilities on
local authorities over and above section 175(1) of the Education Act 2002. Statutory Guidance
on Making Arrangements to Safeguard and Promote the Welfare of Children under section 11 of
the Children Act 2004 has been updated and published in April 20077
But these guidelines themselves cannot be thought to create new law and they are in any case currently being looked at with a view to revising the advice contained in them. So some local authorities believe that the Children Act lays upon them a duty which they cannot ignore, while the 2007 guidelines, which are only that, suggest that the duties of local authorities in this respect were not increased by the 2004 Children Act. Do you see now why I say that the law is in a bit of a muddle and needs to be made clearer?
keep the law as it is. It works fine allowing home educating parents/children to tell they LA no thanks i do not want a meeting if you can explain in writing what it is you need to know i see if i can help!
Delete"But these guidelines themselves cannot be thought to create new law and they are in any case currently being looked at with a view to revising the advice contained in them."
DeleteAs statutory guidance they form part of the Children Act 2004, so they do have the power of law. The enabling Act defines what can be controlled and changed by statutory guidance.
"So some local authorities believe that the Children Act lays upon them a duty which they cannot ignore, while the 2007 guidelines, which are only that, suggest that the duties of local authorities in this respect were not increased by the 2004 Children Act."
Read the Act yourself. As I suggest below, I believe it just imposes a duty to co-operate, not a duty for force parent's to co-operate with them.
Thinking about the Children Act 2004, section 10 and 11 deal with different things. Section 10 relates to well-being, whilst 11 relates to safety and welfare.
ReplyDeleteSection 10 of the Children Act 2004 tells local authorities that they must co-operate with others (relevant partners and other persons or bodies as the authority consider appropriate, who deal with children in the authority’s area) and that this should be done with a view to improving the well-being of children, etc. This does not give them powers to force others to co-operate, it merely imposes a duty on local authorities to co-operate with other people and organisations. Incidentally, this section also states that they must have regard to the importance of parents and other persons caring for children in improving the well-being of children.
Section 11 then moves on to safeguarding and welfare. Staff must carry out existing duties with regard to the safety and welfare of children (though one would hope that they were already doing this before the law was introduced). A duty is imposed, but no new powers or functions are given as confirmed in the statutory guidance that local authorities are required by law to follow (as Simon mentioned above).
So to summarise, section 10 does not give local authorities any powers, it gives them a duty them to promote co-operate with others with a view to improve the well-being of children. Section 11 also does not introduce new powers, it gives them a duty to carry out existing functions with regard to the safety and welfare of children. Please read the original Act and use the text to correct any misapprehensions on my part. I would in no way claim to be perfect!
http://www.legislation.gov.uk/ukpga/2004/31/part/2/crossheading/general
Thanks, Sarah. That makes things a lot clearer to me.
DeleteI can also see Simon's point now because the more closely you look at it, the messier it gets. I suspect that applies to most law in this country. I just wish I believed that any new law wouldn't make it more complicated and easier to interpret in ways that were never intended.
Ian Dowty, the home educating lawyer, gives the game away rather when he explains why this ambiguity is s good thing:
ReplyDelete' What we have at the moment, if it is ambiguous in any way, allows HE'rs
to stretch its meaning in a way which is entirely favourable to the
practice of HE. The ambiguity is a great asset to HE'rs, without which I would
not have been able to secure success for HE'rs in court. '
'gives the game away?'
DeleteAre you saying that all laws should be negative to the practice of HE?
I think we can both agree that some LA's go beyond the boundaries of the law, so why shouldn't we use ambiguities in the law in our favour? At least we have a legal argument and aren't trying to slither by on nebulous 'there could be welfare issues' type arguments that ignore the fact that if there are welfare or educational issues there is a legal procedure which can end, if proven, with an enforced return to the school system.
As I said at the Select Committee hearing, I wasn't asking for a system that was biased in favour of HE. Neutral would suit me just fine. The research done by the Welsh Assembly, though, identified a disturbing tendency to negativity among LA officers and made the point a number of us made then. If you contact someone who has left school because it has failed in a hostile and negative way you are not going to get engagement. Or, put in a Mummyish way, if you don't play nicely, people won't want to play with you.
'''gives the game away?'
ReplyDeleteAre you saying that all laws should be negative to the practice of HE?'
Of course not! I am saying that the law relating to home education is ambiguous and muddled. As Ian Dowty says, home educators have a vested interest in its remaining so. I would prefer the law to be clear and precise, which would I think benefit both local authorities and parents in the long run.
Why on earth would I want the law to be negative towards HE? Just to remind you and any other readers, I was a fanatical home educator whose daughter was educated entirely at home; I did not send her for a single day. Nor did I register with either of the local authorities where we lived. I was involved in home education forty years ago, before it was at all fashionable and this has shaped my views.
I know, Simon, and that was why I wanted to make sure I understood where you were coming from. The problem with blogs is that ambiguity breeds like happy bunnies and this is an important argument so I like to be sure that I'm not getting something that wasn't meant to be there. I clearly was in this case, so sorry.
DeleteGoodness, 40 years in HE is a long time. I didn't think you were old enough. If you're ever short of inspiration for a post, I'd love to know how you think it's changed in that time. I've seen changes in the 8 years I've been flexi-edding or full time HE and I'd like to know what it looked like from your corner of the world.
It's odd, isn't it, how geographical location makes such a difference? And there's another possibility for you if you get tired of regulation.
Why do you think local authorities should have greater powers to investigate education provision than they have to investivate the safety and welfare of children?
ReplyDelete" I am aware, and so are local authorities, that some statutory guidance suggests that the 2004 Act lays no new duty upon local authorities as regards elective home education, but there is more to the case than that."
ReplyDeleteStatutory guidance forms part of the law, so it does not suggest that no new functions are imposed by section 11 of the act, it tells them that this is legally the case and this statement forms part of the law itself.
'" I am aware, and so are local authorities, that some statutory guidance suggests that the 2004 Act lays no new duty upon local authorities as regards elective home education, but there is more to the case than that."
ReplyDeleteStatutory guidance forms part of the law, so it does not suggest that no new functions are imposed by section 11 of the act, it tells them that this is legally the case and this statement forms part of the law itself.'
Sorry, the fault is mine. I meant to type non- statutory guidance, meaning of course the 2007 guidelines. These are not binding and do not form part of the law. Just shows how a simple error can alter the whole sense of what was meant!
'As statutory guidance they form part of the Children Act 2004, so they do have the power of law. The enabling Act defines what can be controlled and changed by statutory guidance.'
ReplyDeletePicked up another error here; the 2007 Guidelines to local authorities are non-statutory guidance and therefor not binding at all.
Which 2007 Guidelines are you talking about, because the Statutory guidance on making arrangements to safeguard and promote the welfare of children under section 11 of the Children Act 2004 was re-published in 2007 and is, obviously, still statutory.
Deletehttps://www.education.gov.uk/publications/standard/publicationDetail/Page1/DFES-0036-2007
If you are talking about the Elective Home Education - Guidelines for Local Authorities, which were also published in 2007, this merely repeats the contend of the statutory guidance detailed above. So although the EHEGLA are not statutory, the 'no additional duties' part is because it exists in statutory guidance as well. This is the relevant section from EHEGLA;
Delete"2.14 Section 11 of the 2004 Act sets out the arrangements to safeguard and promote the welfare of children. However, this section does not place any additional duties or responsibilities on local authorities over and above section 175(1) of the Education Act 2002. Statutory Guidance on Making Arrangements to Safeguard and Promote the Welfare of Children under section 11 of
the Children Act 2004has been updated and published in April 2007."
Or are you talking about some different guidance or section?
'Which 2007 Guidelines are you talking about, because the Statutory guidance on making arrangements to safeguard and promote the welfare of children under section 11 of the Children Act 2004 was re-published in 2007 and is, obviously, still statutory. '
ReplyDeleteAgain, the fault is entirely mine for not making myself clear in the first place! I meant the 2007 guidelines on elective home edcuation for local authorities.
Sorry, our messages crossed. Can you confirm that section 2.14 of the Elective Home Education - Guidelines for Local Authorities, is what local authorities are referring to? Because as I point out above, this merely repeats something that is contained in statutory guidance. It even signposts the relevant guidance for local authorities, to make it easy for them.
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