The coming crackdown on uncooperative home educators

I mentioned a fortnight ago that local authorities in Britain are being encouraged by the Department for Education to pull themselves together and start dealing with home educators who refuse to provide information or look as though they are not actually teaching their children properly. This will be part of a general drive, which will also be directed at unregistered schools; most of which are run by Muslims and Jews. As the DfE rightly points out to LAs who have been badgering them for a new law, they already have all the powers they need under home education law to tackle what is seen by some as a growing problem.

There are two sorts of law in this country; statute law and case law. Statute law is the stuff passed by parliament and case law is how courts have interpreted those laws. In the case of home education, the statute law just states that a child must, from the age of five, be receiving an efficient, full-time education, suitable to his or her age and abilities. This seems vague enough and we must turn to case law to see what this education must be like. We know, for instance, that it must prepare a child for life in modern society (R v Secretary of State for Education and Science, ex parte Talmud Torah Machzeikei Hadass School Trust 1985). We also know, from Harrison and Harrison v Stevenson (1981) QB (DC) 729/81, that it must include systematic instruction, that is to say teaching, in mathematics and English. I quoted the relevant part of this judgement on July 5th.

I would guess that hardly any home educating parents in this country is aware of the fact that they are legally obliged to teach their children mathematics and that they cannot simply encourage them to acquire arithmetical skills from day to day activities. Local authorities know of this, but have chosen until now to do nothing about it. There are several reasons for this. The first is that until the last few decades, there were very few home educated children in Britain. Those that there were  more likely to be hothoused than educated autonomously. We think, for instance, of children like Ruth Lawrence.  It is the recent growth in numbers of home eduated children which is causing alarm for local authorities, especially since many of these new home educators are either not teaching their children or refuse to say whether or not this is the case.

The second reason that local authorities have turned a blind eye so far to breaches of the law regarding home education is that taking these people through the courts is a very expensive and time consuming process. Even if the LA wins, they are likely to be massively out of pocket, as home educating parents faced with the prospect of a court case often make it clear that they will fight the case vigorously; causing the local authority to have to spend money on barristers and so on. If you have hundreds of awkward parents like this in your area, then you could easily end up spending a big chunk of your money on pursuing these idiots. Here is Leicester council explaining this aspect of the  problem;

Case Law, (Harrison and Harrison V Stevenson 1982) has established that any education that does not include instruction in Maths and English, if a child is capable of learning such things, cannot be considered suitable. However, on one recent occasion, the suggestion to a family that the child should be doing some maths and some English every day so that evidence of this this could be shown to the LA Officer was countered with the argument that they are following autonomous education and that any work the child does is the intellectual property of the child and should only be shared if they wish. So even if work in books is being completed, there can be no expectation that an authority can see it. This was coupled with the threat that a Barrister, a legal expert in EHE (who has ‘never lost a case yet’) would successfully challenge any LA who sought to prosecute a parent following EHE being deemed to be unsuitable where the parent then failed to comply with a School  Attendance Order.

None of this is attractive to local authorities and it would be so much easier for them if there was a clear, specific law which set out precisely what home educators should be doing. This is what was being proposed following the Graham Badman report and it is what LAs have been begging the Department for Education to introduce over the last year or so. Unfortunately, the DfE say that they have more important things to deal with right now and so there is no chance of any new legislation. Nobody wishes to go through all the fuss of the Badman era again if it can possibly be avoided. The problem with taking parents to court based only on case law is that a higher court could reverse the earlier judgement and this would create its own difficulties for both parents and local authority officers.

Still, something must be done. Local authorities are now under pressure from central government to crack down on extremism and close any unregistered schools in their area. Since the pupils at such schools, most of which as I said are Muslim or Jewish,  are technically home educated, this means that a crackdown on home education is in the wind. A number of councils have been increasingly unhappy anyway about the large number of children who are taken out of school and then not taught anything for a year or more; so-called ‘deschooling’. Informal discussions are now taking place between a group of local authorities who are working out a coordinated strategy for tackling this problem. This will entail a series of School Attendance Orders, followed swiftly by prosecutions if they are ignored. The basis for these prosecutions will be the judgement in Harrison & Harrison V Stevenson.

Changing the law on home education

One gains the distinct impression when reading Internet lists devoted to home education that many, perhaps most, home educators want nothing to change and for the legal situation regarding home education to remain just as it is now. In a way, I can sympathise with this view. I am myself a conservative and more or less opposed to anything new, almost as a matter of principle. It is heartening to see so many others in the world of home education who embrace this basic tenet of conservatism! Still. it seems a little odd to me that the present jumble and complicated mishmash of statute law and precedent should appear to so many parents as the being the best of all possible worlds. After all, in order to establish the position of elective home education in this country, we must routinely consider case law a century old (Bevan v Shears 1911) and also cases which had absolutely nothing at all to do with home education (R v Secretary of State for Education and Science, ex parte Talmud Torah Machzeikei Hadass School Trust 1985).

When Badman published his findings, one of the recommendations which annoyed certain home educating parents most was the suggestion that each year they should provide a statement of educational intent; something which looked perilously like a curriculum. Some denounced this proposal on the grounds that it would render autonomous education impossible. This may or may not be true, but there seems little doubt that the law provides already for such a thing, both for schools and home educators.

What actually is the duty of home educating parents as regards their child's education? That's easy! Section 7 of the Education Act 1996 tells us that;

'The parent of every child of compulsory school age shall cause him to
receive efficient full-time education'

There now, it couldn't be simpler. Just make sure that you are causing your kid to receive an efficient education to begin with and you should be OK. There is of course no definition in statute law of what is meant by an 'efficient' education. We are compelled to turn to old court cases, particularly the two which I cited above. In the course of one of those cases, R v Secretary of State for Education and Science, ex parte Talmud Torah Machzeikei Hadass School Trust 1985, Mr Justice Woof gave it as his opinion that an 'efficient' education was one that 'achieves what it sets out to achieve.' That seems that's quite clear, I hope.

The implications of this piece of precedent are sobering. Forget about home education for a moment. In fact forget about any sort of education and ask yourself this. How in day to day life do I know of any task or undertaking whether I have achieved what I set out to achieve? For example laying out a garden, decorating a room, writing a blogpost or sorting out the sock drawer. The answer is fairly obvious. You will know if you have achieved what you set out to achieve because you knew what you were setting out to achieve. You compare what you were planning to do with what you have actually done and see if the two things match. This seems pretty straightforward. How does this tie in with the definition of an efficient education which we are legally obliged to provide for our children? Plainly, if we do not know what we are setting out to achieve, then we will not know if we have achieved it. So we must have a plan to begin with, before we even embark upon the enterprise. How could it be otherwise?

A plan for providing an education is, essentially, a curriculum. Or, at the very least, it would be a statement of educational intent. It would be what the parent is setting out to achieve. Without this plan, he will be quite unable to fulfil his legal duty of providing an efficient education for his child, because how would he know whether he had achieved what he set out to achieve? There is not the slightest doubt that a plan must exist in the parent's mind if he is to have any hope of providing an efficient education. What is the objection to his sharing this plan with others? In other words, we can see that he must have a collection of aims in his own mind for the education which he proposes to provide. Without these aims, as we have seen, he could not be sure of achieving what he set out to achieve and we know that he is legally obliged to do this.

The case for a statement of educational intent is thus unanswerable as the law stands. Such a statement must exist for every home educator, even if it is not committed to paper. This is just one of the implications contained in the current law. There are a number of others, equally surprising and alarming to some parents.

Because the current legal position which affects home education has built up in a haphazard fashion over the last century and nowhere mentions home education per se, we are bound to find ourselves struggling. The law as it stands leaves plenty of room for abuse by local authorities, as others have observed. It also offers scope for parents who are not providing their children with an education. It is high time that home education became a recognised and legally defined choice for parents. The duties and obligations of both local authorities and parents should be plainly set out in a way which reflects the realities of life in a twenty first century Western democracy. The real risk to home educators lies in the current way that home education is being affected by various new laws as they are added to the statute book, laws which are framed without any thought of home education but which nevertheless have a profound effect upon a home educating parents. Things such as the amendment to the Education Act 1996, Section 436A, which laid upon all local authorities a duty to identify children missing from education. It is in the steady drip of such new laws that the real threat to home education lies, not in regularising the practice and putting it on a proper legal footing.