Good news, and bad, for home educators

There is always a general anxiety among British home educators that whatever government is in power might suddenly take it into its head to pass a new law; regulating or restricting the practice of home education. I have spoken recently to people working for two local authorities, one in the Midlands and the other in East London, and it seems that there is not the remotest chance of this happening; at least for the foreseeable future. In fact the news is even better than that! A number of local authorities have begged the Department for Education to consider new legislation and the response has been quite brusque. They have been told that their existing powers are quite sufficient to  deal with any supposed problems with home educators. This is what many people in the home educating community in this country have been saying for years and so I am sure that there will be a good deal of satisfaction about this development.

Mind you, as with so many things in this world, there is a bad side to this, as well as a good. In this case, it means that local authorities are, in effect, being urged to ensure that all home educating parents are actually teaching their children and working to a curriculum. Those who are not face the prospect of being issued with School Attendance Orders. The reason is simple; those not actively teaching their children to read and write, or instructing them in mathematics are breaching the law as it stands. This is perfectly well-known to most local authorities, but many parents have not the least idea that this is the legal situation. A few words of explanation might be necessary.

Of course, we know that home educators must provide for their children a full-time education which is efficient and suitable for their age and aptitude, but it is popularly supposed among most home educating parents that there exists no legal definition of what constitutes a ‘suitable’ or ’efficient’ education.. There is of course precedent or case law, but that is incredibly vague and waffly; something about an ’efficient’ education being one which achieves what it sets out to achieve. As a result, many parents think that they do not have to follow a curriculum or even teach their children if they don’t want to. They are quite wrong, as they will probably soon be finding out.

In 1981, there was a landmark court case involving a home educating mother called Iris Harrison (Harrison and Harrison v Stevenson (1981) QB (DC) 729/81). This is often seen as a victory by home educators, because they feel that it established their right to educate their children autonomously.  In fact, the judgement contained the following words;

We regard the fundamental academic skills of writing, reading and arithmetic as fundamental to any education for life in the modern world - essential for communication, research or self-education. We should not in the ordinary case, regard a system of education as suitable for any child capable of learning such skills, if it failed to instil in the child the ability to read, write or cope with arithmetical problems, leaving it to time, chance and the inclination of the child to determine whether, if ever, the child ever achieved even elementary proficiency in these skills. Efficient education should include a systematic approach to learning the basic skills of reading, writing and numeracy.

In other words, the judge in that case ruled that home educated children had to be taught English and mathematics systematically. If this is not done, then the education cannot be regarded as being a  suitable one.

A lecturer in law at a London university has been consulted about this and given as his opinion that the judgement in Harrison and Harrison v Stevenson means that local authorities are entitled to access to a child’s work and also that they may require evidence of academic progress from year to year. It is this which the Department for Education has in mind when it advises local authorities that they already have sufficient powers to act in the matter of home education. Any parent who refuses to teach his or her child mathematics is, according to the precedent in this case, not providing a suitable education.

I think that this post is long enough and I will have to continue it in a day or two. The obvious question that readers will be asking is if this is indeed the legal situation, then why has no local authority yet taken any home educating parents to court on the strength of it? This is an interesting point which I will deal with in my next post.

How autonomous home education was outlawed in this country over thirty years ago

One of the things which never ceases to amaze me is the enthusiasm shown by autonomous home educators in this country for the case of precedent set by Harrison and Harrison V Stevenson in the early 1980s. These idiots talk about this case as though it established their  right to educate their children autonomously, whereas in fact it had the effect of making the practice unlawful. To see why this should have been, we need to look at what was said during the judgement. It will be recalled that a woman called Iris Harrison was trying to assert her right not to teach her own children and the case hinged around the question of what might constitute a 'suitable education'. Children in this country over the age of five, must of course be provided with a suitable, efficient and full-time education, either at school or otherwise.

The judge at Worcester said, apropos of what might be meant by a 'suitable' education:

In our judgement 'education' demands at least an element of supervision; merely to allow a child to follow its own devices in the hope that it will acquire knowledge by imitation, experiment or experience in its own way and in its own good time is neither systematic nor instructive.

The judge went on to say that such a course, 'would not be education'. He then ruled specifically that a child not receiving systematic instruction in mathematics and English, if it were capable of learning them, could not be said to be receiving a 'suitable education'.

And there you have the matter in a nutshell. According to this key piece of precedent, any home educating parent who is not actually teaching or instructing his or her child in mathematics, is not providing a suitable education in the legal sense. Any parent leaving her child to acquire knowledge in her own way and in her own time is not causing that child to receive  a suitable education either.

The next time any home educators feel like quoting Harrison and Harrison V Stevenson, I do hope that they will realise that autonomous education was actually condemned by the judge in the case and that  home educating  parents who don't teach their children mathematics and English systematically, were told in no uncertain terms that they are breaking the law by failing to provide their children with a 'suitable' education.

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.