Tuesday, 12 March 2013
Interpreting the law on home education
I am not at all sure that many home educating parents in this country have fully grasped the implications of the Department for Education’s recent change of stance concerning flexi-schooling. I suspect that there may be similar shocks to this in store, in the not too distant future.
The trouble is, most home educators have little experience with the law and fail to realise the extent to which the law in this country is often a matter of opinion, rather than fact. That is to say that two lawyers or judges looking at the same passage in an Act of Parliament can and do interpret the thing in quite different and contradictory ways. The same is true when examining precedent. In the world of British home education, one interpretation of the law around home education is commonly held. Many local authorities have different views on the matter and which set of opinions is the correct one is open to question.
Returning to the matter of flexi-schooling, let us see what has happened and what could easily happen in the future. A few weeks ago the 2007 Elective Home Education, Guidelines for Local Authorities said of flexi-schooling;
‘“Flexi-schooling” is a legal option’ (5.6, page 17)
Following the revision of the guidelines, section 5.6 on page 17 now says:
‘Where parents decide to educate their child at a school, parents have a legal duty to ensure their child attends regularly. If they fail to do this they may be committing an offence’
It is important to bear in mind that the law has not changed in the last few weeks. What has changed is the interpretation of the law. A few years ago, the various legislation was thought to indicate one thing and now it is suggested that it actually indicates the complete opposite. In 2007 flexi-schooling was said to be legal; now it might mean that parents are breaking the law. I make no comment on which of these views is the correct one; I only point out that this is what has happened.
Precisely the same thing could be done with any other part of the 2007 guidelines. For example, at the moment many home educating parents believe, and frequently quote, section 2.7 on page 5 of these same guidelines:
‘Local authorities have no statutory duties in relation to monitoring the quality of home education on a routine basis. ‘
Just as with the claim that flexi-schooling is a legal option, this is no more than an opinion. It does not have the force of law; it is one particular view of a complex legal situation. As I said above, many local authorities have taken legal advice and arrived at a completely different opinion. What happened with the section about flexi-schooling could happen tomorrow with the bit about the statutory duties of local authorities. It could be changed to read:
‘Local authorities have statutory duties in relation to monitoring the quality of home education on a routine basis.’
There would be very little that anybody could do about this, short of seeking a judicial review. This would be a dangerous game, because a court could rule that local authorities had extensive duties in this field. Just as with flexi-schooling, some lawyers will have one view and others quite another.