I'm writing my response now, even though I don't live in Wales. People from elsewhere are still invited to respond.
I've already apparently had some email correspondence 'retained as part of the consultation process' back in September when I emailed Leighton Andrews in support of the 'Not back to school' picnic held outside the Senedd then.
The response to my email came from the 'Pupil Wellbeing Branch' of the Welsh Government, and said:
The consultation provides the opportunity for all stakeholders, including home educators, local authorities and those who are home educated to comment on and inform further policy development of the proposals.
We will retain your letter/email correspondence as part of the consultation process. Should you wish to respond directly to the proposals set out in the consultation document you can do so at:
In response to that, I said:
If my comments are being noted as part of the consultation process, please also note my unease about the term 'stakeholder' being used to describe the position of local authorities in children's lives. I don't understand why a local authority would consider it held a stake in a child's life.
Also 'pupil wellbeing' relates, surely, to school children only? Home educated children are not pupils and their parents are responsible for their wellbeing, as well as for their education.
And actually, I'm half-tempted to let that stand as my response to the whole thing, because it just about covers it all. But I received no response to that one, so can't be sure those particular comments have been retained as part of the consultation process.
Here goes then, the thing itself.
It begins with a foreword from the Welsh Education Minister, Leighton Andrews, in which he asserts:
These proposals are aimed at ensuring that those children who are home educated receive a suitable education.
Interesting on two counts. Firstly, what I've seen of the proposals, they'll do a better job of preventing that suitable education than they will of ensuring it. And secondly, Section 7 of the UK Education Act, to which I think Wales is still answerable, makes it clear that the ensuring duty belongs to parents, not governments. This is the point on which the whole debate hinges.
He goes on to state a second inaccuracy:
I believe the legislation surrounding elective home education has shortcomings because there is currently no legal requirement on the parent to tell a local authority (LA) that their child is receiving education at home. In the absence of this requirement, it is very difficult for LAs to carry out their duties to ensure that children are receiving a suitable education.
Local authorities have no such duty, so it doesn't matter whether it's difficult or not for them to carry it out. They shouldn't be doing it.
The proposals set out in this consultation document seek to introduce a structured approach as to how LAs and home educating parents engage with each other so as to ensure children educated at home receive a suitable education.
No need for them to engage with each other. The duty belongs to parents, not local authorities. The English Minister, Elizabeth Truss, understands this (about which, possibly more in future posts here). Why can't the Welsh one? It's an unusual legal position nowadays, but not a particularly complicated one.
I propose putting in place a statutory duty on parents to register with the local LA that their child is receiving home education.
.... with the local authority having the power to refuse this registration, making it a de facto licence to home educate. Which gives all the decision-making power over children's education to officials, on a quickly sliding scale between here and Aldous Huxley's Brave New World. It usurps the healthy, natural parenting role and we reject it.
I believe that key to the success of these proposals will be to use existing powers to develop statutory guidance which sets out best practice for LAs when working with home educating families and encourages LAs and home educating parents to work together in the best educational interests of the learner.
I believe this will be legally challengeable by Welsh parents, because the existing powers set out in statute (unless that's to be changed also, which will cause interesting repercussions in the cases of school children receiving inadequate education!) do not allow for it.
Onto the 'background'.
2. Section 436A of the Education Act 19962 places a duty on LAs which consists of two parts. The first part requires a LA to identify (so far as it is possible to do so) all learners of compulsory school age in their area who are not on a school roll. The second part requires a LA to establish if such learners are receiving a suitable education.
Here's Section 436A:
436A Duty to make arrangements to identify children not receiving education
(1)A local education authority must make arrangements to enable them to establish (so far as it is possible to do so) the identities of children in their area who are of compulsory school age but—
(a)are not registered pupils at a school, and
(b)are not receiving suitable education otherwise than at a school.
But the early versions of the Children Missing Education statutory guidance pertaining to this Section (until their sneaky amendment in the same month the Badman Review was launched) excluded home educated children from its remit.
We still have the shadow of this in the thankfully unrevised Home Education Guidance for Local Authorities, at the bottom of section 2.6:
The guidance issued makes it clear that the duty does not apply to children who are being educated at home.
I would like to see this clarity rightfully reinserted into the CME guidance, as was promised to us (see Jane Lowe, four video clips down in that post) in 2007, because its absence is causing no end of trouble for parents going about their lawful Section 7 duty.
Anyway, that's England. Back to the consultation:
3. The Welsh Government underpinned the section 436A duty with statutory guidance for LAs to help prevent children and young people from missing education.
Here it is, with a page on elective home education (74), including:
7.27 Parents do not need to seek permission from the LEA to begin
home education, but must notify the governing body of the school; usually through the head teacher to ensure that their child’s name is removed from the school admissions register. However, if a child has never attended school, no permission or notification is required.
Back to the consultation:
Under the current system when a concern over the suitability of home education provision is raised, LAs can find it difficult to gather the evidence needed to verify the accuracy of the concern.
At least this admits that a concern must first be raised. I think this is a weak argument though, because it's a relatively simple process for Local Authorities to ask parents "We've heard concerns that your children might not be receiving a suitable education. Could you provide us with sufficient information to allay those concerns please?" (After which the parent might make enquiries as to which specific concerns had been raised) and for them to follow due process in issuing a School Attendance Order if the concerns were not sufficiently allayed by the information received.
As a result of this, the Welsh Government proposes the introduction of a registration system for home educated children.
I fail to see how this will help a local authority to simply ask for information to allay any concerns received. If we take it at face value, it doesn't make sense.
5. This consultation therefore focuses on statutory proposals to ensure that children who are home educated receive a suitable education.
It's not the government's legal responsibility to ensure this. It's the parent's. Even Section 437A does not change this.
Then we move onto 'The Issues'.
9. LAs are finding it difficult to identify and track, in a timely and efficient way, all the children in their area who are being home educated.
Sympathies, but I can't see why they feel the need to do this.
The main reason is that there is currently no legal requirement on parents to let the LA know that they are home educating. As a consequence, LAs are finding it difficult to fulfil their section 436A duty.
No. This is spurious. The duty only requires them "to establish ***(so far as it is possible to do so)*** the identities of children in their area who are of compulsory school age but.." etc. As such, it looks like an excuse for universal, intrusive, unnecessary tracking, monitoring and databasing, which will actually impede parents in their Section 7 duty to provide a suitable education.
11. In order for LAs to fulfil their section 436A duty the Welsh Government believes that LAs need to know in a timely way which children in their area are being home educated. The Government believes that putting a duty on parents of home educated children to register with the LA will assist the LAs. A locally managed, formal register of home educated children will enable each LA to make more accurate assessments of the number of home educated children in their area.
And if - as is also proposed - the LAs have the power to refuse registration (which must be applied for annually, as in the Badman Recommendations) then they get to decide who home educates and how they will do so. In complete breach of Section 7 of the Education Act.
13. Identifying instances where a child is not receiving a suitable education can be extremely complex as by necessity the education system operates under a very broad definition of the term ‘suitability’. Case law has broadly described suitable education as one that ‘primarily equips a child for life within the community of which he is a member, rather than the way of life in the country as a whole, as long as it does not foreclose the child’s options in later years to adopt some other form of life if he wishes to do so’.
This is an automatic function of natural parenting which, the law allows, only needs to be checked and assessed by the state if concerns are expressed that the automatic function appears to be failing. Operating in an environment of blanket mistrust of all families benefits nobody, except those industries who would seek to profit from it.
16. It is anticipated that the following issues will be consulted upon in the separate consultation on suitability of education.
• Is the education suited to age, ability, aptitude, personality and interests of the learner?
• Does the education provide a balanced range of learning experiences, so that no one aspect of learning is emphasised to the exclusion of others?
• Does the education develop the personal, social and emotional skills of the learner and prepare them for the responsibilities of adulthood?
• Does the education ensure the development of basic skills including language, literacy and numeracy?
And will these new stringent requirements also be placed on schools, with such close checks and assessments being made? Will schools be refused their licence to operate if they are found to be lacking in any of these newly invented objectives? Will the parents of school children be prosecuted for not meeting their Section 7 duties if the school they delegate them to can be shown to have failed them, in whole or in part? I suspect not. Only home educating parents (in Wales), not schools, will be kept to such tight, restrictive, prescribed criteria.
Onto the proposals.
22. The purpose of the register would be to ensure that all children of compulsory school age who are being home educated are known to the LA in which the child lives.
This can only be true if the LAs have no power to refuse registration, and here we have the power of refusal:
26. The LA would only be able to refuse a new application or revoke an existing registration in a very limited set of circumstances:
• if the parent fails to satisfy the LA that they are fulfilling their duty under section 7 of the Education Act 1996
• if the LA becomes aware of new or existing welfare or safeguarding issues that affect the suitability and effectiveness of the education provided
• if the parent fails to cooperate with monitoring and/or reasonable requests to monitor.
Conditional registration = licencing:
27. An application to register would trigger a requirement on both the parent and the LA to meet with each other, and with the child and home educator if different to the parent. The meeting should take place...
[This section goes on to state requirements for a whole raft of unnecessary and intrusive information about the child.]
And then a set of Badmanesque monitoring requirements.
OK, where are the consultation questions? Here, in a Word doc. Here's my reply:
Registering and monitoring home-based education
Consultation response form
Please tick the box that best describes you as a respondent
□ Home educated ☑ Home educating
child/young person parent
□ Local authority □ Organisation representing
home educating families
□ Other organisation □ Other (please specify in
with responsibility for box below)
children (please specify
in box below)
About this consultation
The purpose of this consultation is to seek the views on the Welsh Government’s proposals for the introduction of a compulsory registration and monitoring system for home educated children. This document asks questions relating to specific aspects of the proposals.
Question 1 – Do you agree that a register should be kept and that it should be a requirement to register if a parent elects to home educate?
I think this would breach Section 7 of the Education Act, because it impinges on the parents duty to ensure the provision and transfers it to the local authority.
Question 2 – Do you agree that if a parent fails to register or provides inadequate or false information then the child being home educated should be required to attend school?
Of course not. Only a judge should have the power to enforce school attendance as a result of a School Attendance Order. This system works perfectly well and does not need to be changed.
Question 3 – Do you agree that home educating parents should engage with their local authority to enable them to assess the suitability of their home education provision?
It's not the local authority's job to ensure suitability of provision, only to seek to allay any specific concerns about provision that may have been expressed to it. In this way, neither the parent nor the local authority struggles to meet its duty.
Question 4 – Do you agree that the initial meeting between the local authority and home educating parent and child should take place in the main location where the education is being provided?
There shouldn't be an initial meeting between local authority and home educating parent unless social services have demanded this on specific welfare grounds. Otherwise the family's privacy is unnecessarily breached.
Question 5 – How often should the annual monitoring meetings with both the home educator and the home educated child take place at the main location of education?
”How often should the *annual* monitoring meetings take place?” Seriously?
Question 6 – Do you agree that registration should be denied or revoked in the limited set of circumstances set out in the consultation document?
There should be no registration and therefore no power to revoke or allow it.
Question 7 – Do you agree the amount of time taken between receipt of application to register and notification of registration outcome should be no more than 12 weeks?
There should be no registration, and therefore no application or notification.
Question 8 – We have asked a number of specific questions. If you have any related issues which we have not specifically addressed, please use this space to report them:
This space is too small. Please see my blog post: http://sometimesitspeaceful.blogspot.co.uk/2012/11/the-welsh-consultation-closes-tomorrow.html for my further comments on your proposals.
And here's Maire's excellent response also.