Why everything in the home education garden is lovely…

I am not a great fan of the schools in this country. I think that there is a lot wrong with them and there is plenty of scope for improvement. Come to think of it, the same is true of hospitals, policing, the administration of local authorities, the government in Westminster and the European Union. The regulations and laws governing all the things which I mention above could do with overhauling; either by tightening up, relaxing, scrapping or bringing in a raft of new legislation. This is the case with practically any human enterprise of which one might think; there is always room for improvement. Well, with one notable exception of course; that exception being the law relating to home education. According to many home educators, this is absolutely perfect and any sort of change would inevitably cause harm to vulnerable children. Although the legal situation surrounding home education in England and Wales has arisen in a haphazard and piecemeal fashion, by happy chance it is the best arrangement that could possibly have been devised by human ingenuity.

When one looks at the awful jumble of the 1996 Education Act, as amended by sections 436A and 437, the 2004 Children Act, the Education (Pupil registration)(England) Regulations 2006 and all the case law from Bevan and Shears 1911 onward; one realises what a mess the law relating to home education in this country is. No wonder there is confusion about the various responsibilities of local authorities and their role, the rights of children and a host of other things. The situation is a nightmare. Never the less, whenever any attempt is made to tidy up this tangle, even by something as minor as a slight change in the pupil registrations regulations, there is an outcry from the more militant home educators. The battle cry is always the same, that the law is fine as it is and any change would be for the worse. Nobody, either parents, local authorities or central government really believes this. Indeed, it would be remarkable if this were to be the case, that all these various statutes and the case law interpreting them should miraculously have given rise to the best possible arrangement for the benefit of children being educated at home by their parents.

In the next week or so, I shall be exploring the motives of both home educators and local authorities and seeing if it is possible to work out what people really want; as opposed to what they are claiming in public. This is a fascinating topic and one which is, I am sure, dear to the hearts of many readers.

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.