Thursday, October 13, 2016

Scrutinising the Scrutiny Committee: Bradford

Yesterday, myself and two friends attended a meeting of Bradford Metropolitan District Council's Children's Services Overview and Scrutiny Committee which I was allowed to address on the report about home education submitted by its Children's Services department.

I took with me some paper copies of the AHEd briefing paper which lists the legal problems with the content and handed them around at the meeting. Councillors in attendance had received this earlier by email too.

I quoted the commentary about this report from data protection expert Tim Turner:

"The Supreme Court [The Christian Institute and others v The Lord Advocate (Scotland), 28 July 2016] ruled that a clear data protection condition is required with reference to the Data Protection Act and that human rights proportionality cannot be wished away just because you think you are doing the right thing for children. Bradford Council have to be able to show how they can justify the disclosure from and to HMRC and DWP. If a 'legal obligation' is claimed, they need to be able to say which one i.e. which act, which regulations, which section precisely. There is no mention in the report to councillors of any consultation with stakeholders and data subjects on the sharing of their personal records, never mind any legal impact assessment of these proposals in the light of the recent Supreme Court judgment which set strict parameters for information sharing. They have to be able to show that the disclosure is proportionate and should have done a human rights proportionality assessment. They should also directly inform parents of any data sharing agreements, including evidence of the data conditions they think they have met."

- as well as answering questions about the law and practice of home education. Committee members were frustrated by the reactive position set out by Section 437 of the Education Act, so I explained the reasons for this in conjunction with Section 7 and the duty being on the parent to cause the child to receive the education and not on the local authority. Therefore, the parent has to decide the content based on her relationship with her child and so local authorities must only intervene if there are concerns.

The general sentiment expressed by members of the council and officers present was that this situation was regrettable. One member even later suggested "We should abandon" the "wooly worded' S437 and rely instead on Section 175 which, the meeting seemed to think, gave the local authority the duty to safeguard and promote the welfare of all children in the area including unregistered elective home educated ones. I disputed this interpretation but officers disagreed with my arguments and I was accused by one committee member of "muddying the waters" by my suggestions that the report should comply with the law.

Needless to say, officers and councillors cannot cherry pick the laws they like the best and ignore all others, much as some of these meeting attendees wished to do so. I think many of the problems faced by home educators in their interactions with local authorities are caused by this mistaken attitude to the law.

There was much talk of tracking and safeguarding responsibilities, "There is no legal definition of a suitable education, so how can we know what one is?" and "We don't know what we don't know."

I think some of this consternation may have come from the most recent edition of the Children Missing Education guidance which now stipulates that they should have "..robust policies and procedures in place to enable them to meet their duty in relation to these children, including ensuring that there are effective tracking and enquiry systems in place.." but it also stipulates, in line with the recent Supreme Court judgment in the case of The Christian Institute and others v The Lord Advocate (Scotland) that "Local authorities should not make blanket enquiries", which is exactly what the report in question seems to be describing in its second section 5.4, when it says:

"We do not have a data sharing agreed with DWP but it has now been agreed with HMRC that we can be involved in their second phases, which began in Sheffield. This means they will share details of families who are in recived of child benefit, allowing us to cross reference that data with the information we hold on CYP in the district. The pilot will run from Jan – June 2017 and is likely our intelligence will increase during that pilot."

Members of the meeting, councillors and officers alike, kept reassuring me that this report was "not about me". And yet, as I explained, if this kind of hunting down of lawful home educators goes ahead, my children's education provision will be negatively affected, because it will be a slippery downward slope from that point until we are back at the nightmarish situation recommended by Graham Badman which cannot happen while there are so many unknown elective home educators to provide support to those who are known.

But "It's just like having your bag checked at the airport," said one councillor. "It's not nice, but we have to put up with it so that everyone can be safe."

It's really NOT like having your bag checked at the airport.

I asked, if it's all about illegal schools as this local issue apparently was in the beginning, then why weren't the illegal schools more effectively policed under Section 98 of the Education and Skills Act? "We have no powers under that section," I was told. "The only department who could enforce that is planning and they have no right of access to a building.." But they do.

As in the case of the Serious Case Reviews, the laws are already in place for identified problems to be resolved, but they are not properly used because they are poorly known about, poorly understood or forgotten about and more laws are called for instead. I would contend that this is neither an effective nor an efficient way of delivering a service.

As my subsequent letter to the leader of the council explained, the scrutiny committee failed, in this case, to scrutinise.

Worryingly these points were not picked up by the scrutiny committee, one of whom accused me of "muddying the waters" by raising them. A friend who attended the meeting with me described the committee's processing of the report as "a head-nodding, rubber-stamping exercise" which I feel I should bring to your attention.

What was secured was an agreement to change the wording of the currently misleading information supplied by the local authority to parents on home education and for the new safeguarding hub/team to be noted as "ensuring the promoting and wellbeing of all children", rather than just those who are "not attending any registered provision".

These are small victories when the data protection concerns alone should have led to the report being withdrawn and rewritten, but my understanding is that this meeting was not our last chance to secure this outcome.

Engaging with local authorities in committee meetings is something I can recommend though, despite the challenges they can present. We were made to feel welcome and our views were heard. It is something I will be doing again and again, especially now that so many changes appear to be being pushed through at the local authority level instead of the national one. I think if more committees were scrutinised by the public on a regular basis, council meetings might become more dynamic and involve less 'head-nodding and rubber-stamping'. We are not powerless in the situation, our elected representatives are supposed to be answerable to us and the system of open meetings is designed specifically for this purpose.

I can see it becoming a national pursuit for home educators up and down the country, because I hear that similar data-sharing schemes are also either planned or already underway in the boroughs of Staffordshire, Sheffield, Haringey, Greenwich and Sunderland. HMRC is apparently "unsure about the legal position" of this data sharing, but doing it anyway. And yet according to the momentous victory secured by the Christian Institute and others in the Supreme Court this summer, blanket data sharing is quite definitely unlawful.

Monday, October 10, 2016

Dear members of the Bradford Metropolitan District Council Children's Services Overview and Scrutiny Committee,

For your meeting on Wednesday 12th October you are being asked to scrutinise a report on Elective Home Education by Judith Kirk, the Deputy Director of Children's Services in Bradford. I am a home educator of long standing, having first deregistered a child to home educate in 1993, and my blog on home education politics and law in England has been running for over ten years now. As a lifelong West Yorkshire resident I also feel a personal connection to this report and whatever consequences ensue from it.

My thoughts on the report are as follows:

The explanation of the current legal position is technically correct but requires further context. There is a specific and important reason why official routine monitoring of elective home education is explicitly precluded in the government guidelines for local authorities, which is based on the duty given to parents in Section 7 of the Education Act. I wrote a post on this in 2014 if you want to read more detail, but essentially the key point is this: If parents are to retain the duty to cause receipt by their children of suitable education then parents must be given the leeway to decide what form this education should take. If they have no leeway to decide upon form and content, then logically they cannot be held liable if the education proves to be unsuitable - for example, at the end of a disastrous period of tuition at school followed by poor outcomes for the child on leaving.

Routine official monitoring is not conducive with parental choice in education because in practice what tends to happen is that the provision changes to fit officials' stated requirements and expectations rather than the more effective tailor made, child-focused approach that many of our unmonitored offspring enjoy. An example of this process can be found in this post from 2009, which explains why we campaign so vociferously to resist developments which might exacerbate the problem.

The current approach in Bradford is in breach of the government Guidelines for Local Authorities in that is does seek to routinely monitor, attempting to visit families on an annual basis even where no concerns are apparent. This has been causing unease amongst home educators on a local and a national basis because of the potentially damaging effects of such expensive, unnecessary and ultra vires interventions on our children's education.

The questions asked by the local authority of home educating parents in the appendix 3 far exceed the instruction to "ask the parents for information" set out by Judge Donaldson in the 1980 precedent case of Phillips v Brown. Our concern here is that the questions enable officers to pre-judge an educational provision that they should not be judging at all, unless Section 437 concerns are apparent. It takes some considerable time after deregistration for parents to assess their children and settle into a course of study and this usually has to be a very flexible process involving much trial and error. To be encouraged by officials to state their specific provisional intentions in advance of this happening is again to risk damaging the personal and perfectly tailor made approach that usually develops only without such interventions.

Most home educating parents are not teachers in the school sense, because their parental relationship prevents this form of interaction. The practice of home education usually does not resemble school and nor should it, because it is not a mechanism for the instruction of children en masse. In the absence of apparent and specific concerns of suitability it is not legally open to the scrutiny of local authorities in the way that schools are because homes and family life are necessarily private and parents are not being paid by the state (as in the case of schools) for the tuition of the children of other parents. In the absence of Section 437 concerns they are answerable only to their children and such wider circle of involved neighbours, friends and relatives as they think fit.

This is something of an anomaly in the present culture but such privacy is vital to the often delicate relationship the parent tries to foster between the child's natural curiosity and the things he or she needs to learn. The parent cannot usually dictate to the child what he or she must be curious about and nor can she proceed regardless as happens at school. Instead she must work dynamically with the child to develop and draw out his or her own interests in an educational way. This relies on a relationship of trust between the two which must not be breached if the child's curiosity and willingness to learn is to continue. In my own older children this has resulted in various successful outcomes in which entrepreneurial young adults are contributing to the economy by utilising those very interests we fostered in home education, in the commercial field. They are actively engaged in their work in a very healthy way, which was my aim but which was repeatedly thwarted by unsolicited contact from the local authority that challenged the trusting relationship between parent and child which is such a prerequisite for elective home education provision to succeed.

As home educators we would prefer our engagement with local authorities to be entirely voluntary unless there are concerns about our provision, and we feel the current national regulatory system perfectly reflects this. This is because a voluntary arrangement ideally supplies only the advice we seek in a relaxed setting that enables us to utilise and adopt it properly. A heavy handed more unsolicited and proactive approach from the local authority is more likely to deter us from asking for advice or from taking on board any advice supplied as anything other than an unwelcome and ultra vires intervention. A voluntary relationship (in the absence of Section 437 concerns) is therefore more efficient, economical and substantially more effective than one routinely imposed by the local authority on its own terms.

Home educators do have concerns about the misuse of the term 'home education', particularly in the use of illegal schools and when there are specific welfare concerns, but we are of the firm opinion that current statute and regulations (Section 98 of the Education and Skills Act and Sections 7 and 47 of the Children Act) provide ample measures to resolve these issues without the need for any changes which might potentially damage our children's learning in the way I've explained above.

We challenge the view that 'a child not seen by the authorites is a child at risk of abuse': The NSPCC's report into the 7 Serious Case Reviews that have featured home educated children in the last decade or so demonstrated that all of the children listed were known to their local authorites, but that already existing regulations were not followed correctly. It therefore follows that extra regulations will not make children more safe and what is required is a more thorough knowledge and adherence to current guidelines and statute instead.

We regard the proposal to delay deregistration from school by 20 days as a breach of Section 8 of the statutory Education (Pupil Registration) (England) Regulations 2006 and may seek to take action accordingly if this change is adopted in Bradford or elsewhere.

The tracking down of children who may be missing education by sharing details of families "..who are in recived of child benefit.." [sic] is then, in light of the above, an alarming plan especially as the intention appears to attempt to proactively and routinely monitor the provision of those who are found in this way. The problem of illegal schools should be addressed by proper policing of Section 98 of the Education and Skills Act. Any concerns about our children's welfare should be addressed by appropriate and correct use of sections 7 and 47 of the Children Act and concerns which may arise from individually involved members of the community about our children's educational provision should be dealt with by the informal process set out in the Elective Home Education Guidelines for Local Authorities followed by, if unsuccessful, the formal process set out in Section 437 of the Education Act.

Friday, September 16, 2016

Home education and illegal schools. Again.

Four days ago, this bright, sunny article appeared in the BBC News Education section: Home education: The children going 'not back to school', in which a variety of effective home education methods were described and the process of deregistration from school and the legal position of home education were clearly explained.

This was presumably read by some grouchy Old Labour politician of the "All of your children are belonging to us" dyed-in-the-wool school of dogma, and a phone call or two later, this weird little Local Government Association press release appeared today and was duly rolled out on the BBC and in The Guardian by way of redress, one assumes. Because we can't have people thinking it's ok to just deregister their children from school, there has to be some threatened oversight and/or some general tarnishing of the idea as a corollary.

"Councils need more powers to protect children and tackle illegal schools," says the headline of the press release. The current, perfectly adequate regulations to tackle illegal schools are added as a footnote because of course, it's not really about the illegal schools at all - it's about getting into the homes of home educating families and questioning their children, just like Badman wanted in 2009.

I don't want to supply too much oxygen to this silliness, but I do want to take issue with Richard Watts' initial sentence: "The vast majority of parents who home educate their children do a fantastic job, and work well with their local council to make sure that a good education is being provided," because how can he know "the vast majority of parents who home educate do a fantastic job"? The answer is he cannot, because he has no power or ethical right to inspect and make the judgment of whether they are or not. Furthermore, as home educators we don't have to do "a fantastic job" - we only have to "cause our children to receive efficient full-time education suitable (a) to their age, ability and aptitude, and (b) to any special educational needs they may have."

Finally, most home educating parents do not "work well with their local council to make sure that a good education is being provided," because that is not the role of the local council in home education. There is neither the funding nor the legal justification for local councils to be involved in home education unless "it appears that a child of compulsory school age in their area is not receiving suitable education" - home education quite rightly happens separately from local councils and other than that proviso, it does not fall under their jurisdiction.

I can't find the quote, but somebody once said that the main goal of every organisation quickly becomes growth and then it loses focus in its original intended function, and local authority departments as well as the national associations designed to support them, are no exception to this. Home education in the UK remains a thriving but stubbornly untapped market for interventions and this is undoubtedly deeply frustrating to some people. But for home educators, who live and learn in a legal enclave of vital peace and privacy, it is very good news indeed.

Friday, June 03, 2016

Why, as a home educator, I will be voting for the UK to *leave* the EU

UK home educators will never forget the 2009 Badman Review, which presented the biggest threat to their way of life since Joy Baker's children were in Chancery in the 1950s. The Badman Review was commissioned by the then Labour Education Secretary Ed Balls, but it took its academic justification from a paper by Daniel Monk, a reader in law at Birkbeck College in the University of London, with the title: 'Regulating home education: negotiating standards, anomalies and rights'.

I blogged a detailed critique of Mr Monk's work last year, in which I counted fifteen significant and unaccountable leaps of logic and some quite heavy bias in favour of state monitoring of parental educational provision, but he also mentions Europe no less than seven times throughout the paper, in fact one of the main thrusts of his argument seems to be: "Free and unfettered home education is unpopular within the EU, therefore the UK should be tightening up its own regulations and will, to be more in line with other EU countries."

Lobbying for tighter regulations of home education appears to be strangely de rigeur again just now. The Association of Directors of Children's Services has just published its 'overview' of the results of a survey it decided to hold, with some carefully selected response quotes at the end, mostly and unsurprisingly calling for greater powers of intervention. Needless to say, I was not invited to take part in this survey and nor was any other home educating parent to my knowledge.

In Bradford, Michael Wilshaw's call for an investigation into the bad state of its schools has somehow mysteriously morphed into a forthcoming inquiry about home education, which is roundly predicted to issue calls for more regulation of us - as though we are to blame for the state of schools in Bradford.

In a possibly collaborated pincer movement, Ofsted's Wilshaw and chair of the Commons Select Committee on Education, Neil Carmichael, are both gunning for us. Last month Wilshaw himself tried to link home education with illegal schools (can Local Authorities not police their own areas without threatening our children's learning..?) when he said:

"I have previously voiced concern that many of those operating unregistered schools are unscrupulously using the freedoms that many parents have to home educate their children as cover for their activities. They are exploiting weaknesses in the current legislation to operate on the cusp of the law."

And Neil Carmichael had his turn back in October when he said:

"I think [registration of home educators] should be compulsory. It would enable the local authority to get a better grip on home education and also help with child protection. I am a great believer in freedom of choice, but it would be better if children who are home educated were known about. It would reduce the chance of any vulnerable children being let down in any way, or slipping through the net."

Well, Mr Carmichael, sadly this is what can all too often happen when vulnerable children are "got a grip on" by local authorities and other professionals, and it is one of the key reasons why we will oppose your ideas every step of the way.

So far, the Conservative Party's 2010 assurances that our regulations will not alter while they are in government are holding good. But with the wolves above baying at our doors, we never know when we will next have to go and lobby Parliament, which is one of the many things we did in 2009 to good effect. If the European project continues apace, will we be travelling to Brussels instead of London the next time we need to protest? And if so, would our voices be heard there and make any difference? International education law expert Daniel Monk evidently thinks they would not.

Monday, January 25, 2016

"But what's wrong with compulsory registration for home educators? What difference would it make?"

I've even heard this question coming from home educators in the past few days - albeit relatively new ones: people who weren't home educating in 2009, the year of the Badman Review.

The review used Daniel Monk's extremely dubious conclusions to recommend a conditional, annual, compulsory registration scheme for which we would have to regularly reapply and the success of each family's application would depend on the results of their ongoing monitoring and assessment by local authority officials, who would have the legal right to enter our houses and interview our children alone. If you don't believe me, read the recommendations.

These recommendations were incorporated into the Children, Schools and Families Bill, which would have become law if the 2010 General Election hadn't prevented it just in time because the incoming Conservatives (and Lib Dems) rejected it. We were very lucky with the timing of this effort, but the Badman Report remains on file at the government website and some people who had pushed for it remain disappointed that its recommendations were not implemented.

The point is, compulsory registration for home education is NOT just a process of taking our names and adding them to a list. Yes, people who have deregistered their children from school are on local authority registers already and I can understand why some of them might wonder what real difference it would make if we all were, but the answer is above. The current situation, in which some of us can legitimately avoid being on register, protects everyone - including those who are currently registered - from the Badman Recommendations.

Right now, the local authority has to issue a School Attendance Order and then have this enforced by a court to compel a parent to register her child at a school. Under the Badman Recommendations, the parent's failure to comply with the registration criteria would be sufficient. It turns the entire premise of the parent's duty to secure educational provision on its head, as this becomes more of a local authority duty instead, but they were going to do it anyway - and obviously some influential people still want to.

Our children are all registered already, within six weeks of their birth according to the Registration of Births Act 1953. School attending children are then added to school registers, but all of our children remain on the birth register. If, as some campaigners suggest, "All they want to know is how many of us there are," the remaining names are there, all presumably being educated "or otherwise", unless it appears to the local authority that this might not be the case.

All of the information a compulsory home education register might provide is therefore currently stored and available. The only possible remaining reason for wanting to go to the trouble and expense of creating and maintaining such a new register, is therefore monitoring and compliance at the expense of our children's education.

Friday, January 22, 2016

Dylan Seabridge, Section 47 and home education regulation

The tragic case of Dylan Seabridge has mysteriously resurfaced across mainstream media, yesterday and today. Dylan was known to be home educated by his local authority, but education staff did not see him because home educated children are not usually compelled by law to see education officials.

Concerns about Dylan's safety were raised amongst officials more than a year before his death, but no action was taken on these concerns. Instead of social workers, bizarrely, education staff were notified to merely make inquiries into his home education.

So we need more regulation of home educators, the argument goes. This would save their lives and prevent them from dying from neglect - even though cases like that of Daniel Pelka who attended school and still died, clearly demonstrate this to be false.

And yet we already have legislation to compel access for children who are suspected to be at risk of harm: Section 47 of the Children Act 1989:

(4) Where enquiries are being made under subsection (1) with respect to a child, the local authority concerned shall (with a view to enabling them to determine what action, if any, to take with respect to him) take such steps as are reasonably practicable —

(a) to obtain access to him; or

(b) to ensure that access to him is obtained, on their behalf, by a person authorised by them for the purpose,

unless they are satisfied that they already have sufficient information with respect to him.

Calls for a compulsory register have been coming from Neil Carmichael and others since last October, and I heard an interview between that man and home educator Clinton Lee yesterday evening, in which Mr Carmichael quite despicably waved the shroud of Dylan Seabridge to make his case.

I would like to respectfully suggest that Mr Carmichael considers using his position as Chair of the Commons Select Committee on Education to make inquiries as to why the current law is being ignored in respect of children whose local authorities "have reasonable cause to suspect [they are] suffering, or [are] likely to suffer, significant harm" instead of wasting public money campaigning for expensive, unnecessary and unhelpful extra legislation.

Sunday, January 10, 2016

My thinking on the NSPCC/EHE meeting: FAQ

A few people have been asking me about the meeting that took place between some home educators and the NSPCC on Friday, since I have expressed my dissatisfaction with it. I'm therefore formulating this post as a link to send people to, to explain my thinking all at once.

1. Why was there a meeting between some home educators and the NSPCC on Friday and how did it come about?

A petition was raised to ask the NSPCC to withdraw its report: Children not in schools: learning from case reviews which was critiqued on this blog in October 2014. The meeting was organised in response to the petition.

2. Why are you unhappy that the meeting took place?

Because it was a private meeting, following an agenda set by the NSPCC and shrouded in secrecy. Indeed, there was great panic when the agenda and attendees were published online the day before the meeting. As the NSPCC itself might say, if it has nothing to hide, what does it have to fear from, for example, filming the whole thing and posting it online? The House of Commons manages it: I don't see why the NSPCC can't. Also some of the names on the list of attendees worried me.

3. If it had been a public meeting, would you be happier about it?

Yes, because it would have been more about protest and less about negotiating. We can't negotiate with aggressors, as the NSPCC has shown itself to be against home education time and time again. Much less, behind closed doors and in secret. The whole thing smacks of appeasement and risks seriously weakening our position for no good reason.

4. What is it about some of the attendees that worries you?

At least two of the attendees were involved in developing this draft guidance from government to local authorities (intended to replace the excellent EHEGLA) which would have been disastrous for freedom in education. One attendee has in the past suggested an official traffic light system for grading home educating families in terms of the likely level of concern they would/should generate from authorities. Another attendee refused to take a position on whether compulsory registration would be a good or bad thing when asked by the Commons Select Committee in 2009 [Questions 55 and 56 in the hyperlinked transcript.] Another has presumably jokingly, but still worryingly, classified home educating parents in private in very unflattering ways.

This all adds up to a picture of amateur incompetence at best, and some questionable political views at worst. These people put themselves forward as our representatives. They are saying otherwise ("We just wrote to the NSPCC to protest! Anyone could have done that...") but the organisations listed after some of their names, coupled with the NSPCC's stated: consultation with some representatives from the home education community tell a different story.

5. What do you think the outcome of such a meeting might be and why?

Given the already subordinate position of entering secret negotiations based on the other party's agenda, I fear the outcome cannot be good. Home education representatives were presumably requesting understanding and leniency. What was the NSPCC asking for in return? Because it is run by professionals who do know how to negotiate properly and how to develop a 'third way' position based on compromise. And yet I see no reason for us to yield ground on the issue of registration or safeguarding when the current legal position is already sufficient.

6. There's been a suggestion that you and others might just be feeling envious that you weren't invited to the meeting and that this is secretly the real reason you are complaining about it. Is it true?

No, and it's utterly illogical. If I wanted to talk to the NSPCC what would be to stop me framing an email to them myself, getting invited along to secret meetings and so on? This does not take any special skill or talent that those of us who are in disagreement with the negotiations are somehow lacking. We did not contact the NSPCC over its report because we did not wish to strike a deal with them - end of. There is nothing we are willing to trade in return for an end to their aggressive attacks.

I will close with the words of my good friend Ali Preuss and happily confirm that jelly and ice cream is really not to my taste.

It's pretty obvious what the NSPCC tactics are as their MO never changes. Throw a few crumbs to self selecting 'community leaders' who are desperate to bag a seat at the top table with jelly and ice cream (maybe even a paper hat and party bag each) and flatter them into believing they can 'make a difference' when in reality they are simply useful idiots being set up. I know what happens next as I have seen it time and time again in different contexts. It never ends well. Talking to a toxic outfit like the NSPCC is self defeating and a complete diversion as they can so easily be called out on their serial lies and fabrication without having to try too hard. All that was required was for them to remove their offensive document and publish a formal apology for their smear campaign (which, incidentally, is not limited to HE).

PS: The offensive document has still not been removed. If that was the aim of the meeting, it has so far failed.

Wednesday, October 21, 2015

Ten reasons why home educated children should not be forcibly registered with their local authorities.

Home educated children must be registered says Stroud's MP Neil Carmichael (new Chair of the House of Commons Select Committee on Education):

"I think it should be compulsory. It would enable the local authority to get a better grip on home education and also help with child protection. I am a great believer in freedom of choice, but it would be better if children who are home educated were known about," said Mr Carmichael.

Labour county councillor Barry Kirby gave a good response as to why it should not be compulsory for home educating parents to be registered:

"He said that many parents who home educated can see no advantage in registering and that the social services provision already exists to protect vulnerable children."

I'm guessing he supplied several more reasons which were subsequently edited out for brevity. Here are a few more. In fact, let's call this post "Ten reasons why home educated children should not be forcibly registered with their local authorities." (NB: I can come up with ten more, and ten more, and a further ten after that if needs be. I'm sure other home educators can as well!)

1. The statistics show there is no link between home education and child abuse. Assuming (without checking) that there is a link is therefore *prejudice*.

2. Parents know their children better than officials do. Officials might think they are experts in a child's education but in home ed, the parent is the expert and they should not have to answer to officials about their children's education other than to minimally allay any Section 437 specific concerns.

3. The statistics show there is no link between home education and child abuse. Assuming (without checking) that there is a link is therefore *prejudice*.

4. The involvement of local authorities and their agents in family home life is usually quite stressful for children and their parents. The normal flow of learning is interrupted to make time for the required presentations and explanations.

5. The statistics show there is no link between home education and child abuse. Assuming (without checking) that there is a link is therefore *prejudice*.

6. Compulsory registration is the top of a slippery slope that leads to the sort of Badmanesque hell that forces parents to apply for a licence every year and being made to jump through various hoops (and coerce their children to do the same) in order to be allowed to continue home educating.

7. The statistics show there is no link between home education and child abuse. Assuming (without checking) that there is a link is therefore *prejudice*.

8. Home education families do not have the same lobbying powers as children's charities - this does not mean the charities should be treated as experts on the issue or their biased and mistaken opinions trusted. Children's charities have an agenda with regard to home education and get things badly wrong in its persuance. I don't know whether to include Barnardos in that broad brush, but it does provide alternative education provision, a previous executive did sit on Badman's panel of so-called 'experts' on home education, and Neil Carmichael had a meeting with its current CEO around the same time as he was publicly voicing his opinions about our registration.

9. The statistics show there is no link between home education and child abuse. Assuming (without checking) that there is a link is therefore *prejudice*.

10. The oft-used argument for compulsory registration contains no less than *fifteen* inexplicable leaps of logic, cites irrelevant legislation and even draft versions of government guidance to make its desperate case. It would be a brave - some might say, foolhardy? - politician who opted to promote it, especially one from the side of the House we have been able to rely on (to date) in the preserving of our peaceful family lives.

Yes, the above list contains some repetition but this seems sadly necessary, as Mr Carmichael has been a member of the Commons Education Select Committee for some years now, including sitting through one inquiry into home education during which his input was at times perplexing, to say the least. But we can go there in much greater detail at a later date, if needs be. Anyway, despite these years of experience and presumably acquired knowledge, he still makes the rookie mistake of conflating home education with child abuse, even though the contradicting statistics could not be clearer. I hope he desists from pushing this damagingly incorrect and prejudiced notion in future.

Friday, June 19, 2015

A critique of Daniel Monk's 2009 article and the reasons why

In 2009, Daniel Monk wrote his article Regulating home education: negotiating standards, anomalies and rights. This then formed the basis of the Badman Review - presumably deliberately, as it makes several references throughout to 'the forthcoming review', though I do not know to what extent Mr Monk was involved in the instigation of the review, if any.

Since 2010, Mr Monk has used the content of his article to form a course of training for Local Authority officers on how they should approach home educating families and the legal standing of their position in that respect. This provision of his training is apparently to be further uptaken since the establishment of the Association of Elective Home Education Professionals, at least one of whose meetings Mr Monk has attended. The content of this 2009 article therefore will increasingly be determining the stance of Local Authorities so I have taken a detailed look at it, with my commentary below.

In summary, my main concern lies in the many sizeable leaps of logic (I counted fifteen) through which Mr Monk draws his conclusions. Citing irrelevant legislation on at least six occasions and even draft versions of government guidance to support his line of thinking, he seems quite desperate to demonstrate that we ought to be monitored on a regular basis by the state, in spite of the firm and clear statement to the contrary in the Elective Home Education Guidelines for Local Authorities.

He also seems quite suspicious of the motives of parents who choose to home educate, accusing us of being "politically strategic", with a "'fundamental' support for home education" and "unquestioned power" over our children, "denying them education that respects their individual rights to develop their own views and values". He references religious motivations quite frequently, sourcing research and cases on this from the EU and US where schooling is secular and so many parents do home educate to provide religious tuition. In the UK where many schools can and do offer such tuition, the situation is very different but Mr Monk chooses not to acknowledge this.

His personal view of home education seems to stem from a political disapproval, speaking of an "unease" of privatised education, and the view that "unregulated home education implicitly condones education that conflicts with attempts to foster national cohesion and democratic values". Mr Monk never considers the potential damage to a child's wellbeing or learning process that could be caused by official visits to the family home.

In total, I noticed one complete misquote and one quite confusing typographic error (unless I misunderstood the meaning of the sentence in question). In the excerpts from Mr Monk's work etc that I include below, any added emphasis will be mine.

Initially, I'm reminded in the opening paragraph by a reference to 'the forthcoming review' that this is the article which informed the notorious Badman Review, explaining why Badman approached us with such seemingly preconceived ideas that bewildered us so much when the review was underway and before his dreadful, concluding report of June 2009.

In the introduction, I'm first jarred by this:

"Its obscurity is reflected in law: very few cases and a legal framework that has remained unchanged since 1944 (and, indeed, arguably since 1870). This fact is all the more striking when one considers the radical and extensive transformation of the law of education over the last three decades."

When one considers the wording of Section 7 of the 1944 act:

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

(a) to his age, ability and aptitude, and

(b) to any special educational needs he may have,

either by regular attendance at school or otherwise.

- it's clear that no change was ever required because both the wording and the spirit of the law are unequivocal: the responsibility for the child's education remains ultimately with the parent. Children fortunately still have parents even in the 21st century and it is in the parents' interests that the child is properly educated now, just as much as it was then.

Next, a mysterious misquote. Monk cites 'The Committee on the Rights of the Child, (2008) Concluding Observations of the Committee on the Rights of the Child: United Kingdom of Great Britain and Northern Ireland CRC/C/GBR/CO/4, Centre for Human Rights, Geneva, para 84' as follows:

"In addition, the UN Committee on the Rights of the Child recommended in its latest report that the government 'make sure children who do not go to school get an excellent education'."

I checked through the document in question and found that it did not contain those words or anything that may have been misconstrued as those words in paragraph 84. Instead, in paragraph 67(c) it says:

67. The committee recommends that the State party: ......

(c) Ensure that all children out of school get alternative quality education

Different words entirely - perhaps Mr Monk had a varying copy of this particular UNCRC report. Furthermore, read in context with the previous paragraph of the report, it is also clear that this recommendation relates to children excluded from school: i.e., *not* Elective Home Education as provided by parents. I will give Mr Monk the benefit of the doubt and assume he was mistaken in his reading of this section rather than wilfully misconstruing it.

The piece goes on to list the various Department for Education and Skills initiatives (consultations, reviews and research) home educating families were subjected to in the late noughties which, from the receiving end, felt like an orchestrated sustained attack. Why does it feel like an attack? Because the education of our own children is - as set out in Section 7 - our own responsibility. Our territory. A field of endeavour in which many of us have become accustomed to operating without impediment from the state. Logically, if there are no problems then the state should not intervene. Presumably Mr Monk goes on to set out what he saw in 2009 as the problems necessitating intervention and these will be something more substantial than just "the law has changed in related areas, so it should also change in this one".

The aim of this article is to examine the current law and to highlight the key issues that will be the subject of the forthcoming review; in particular, compulsory registration, rights of access to the child and the criteria used to evaluate the content of home education. If the government decides to intensify regulation it will probably face strenuous opposition from members of the home education movement. Conversely, no action will disappoint some LA and child protection bodies. The issue is an emotive one with accusations of bias often made against both researchers who celebrate and support home education and those who call for stricter forms of regulation. The aim here is to endeavour to present the issues in as balanced a way as possible in order to examine the inherent tensions and paradoxes between the competing interests and rights claims and to locate the issue within a broader political context.

I'll withhold my opinion until later on the success or otherwise of this endeavour to present the issues in as balanced a way as possible and note at this stage only that in the 6 years since this article was published, blessedly no such regulations have been introduced and we are still continuing to home educate in England in relative peace from the authorities. It seems that the only opposition to this happy state of affairs comes in periodically agitated spasms from a seemingly miniscule sector of 'some LA and child protection bodies' and this is whipped up into spurious 'concerns' which unfortunately look like nothing more than the last flails of a few fervently statist activists to regulate all of that which is not currently regulated, and to test and measure all of that which is not currently tested and measured.

There follows a section on the definitions of home education, including the then DfES version, followed by this commentary:

This definition makes important distinctions between home education and other non-school based forms of education. But it fails to capture the myriad of practices, motivations and locations for home education. Indeed, the diversity is such that the label 'home education' describes not so much a form of education but, rather, simply the legal status of a child's education. In other words, if a parent is a 'home educator' the only fact that we can be absolutely certain of is that he or she has exercised a legal right."

WRONG. The only fact that we can be absolutely certain of is that he or she is fulfilling a legal DUTY - nowhere in Section 7 of the Education Act is there any reference to parental rights, only parental duties - which are of course profoundly different things. The duty is to 'cause him to receive efficient full-time education, suitable to his age, ability, aptitude and special educational needs'. It's only by reading Monk in such close detail that the root cause of some of the manifest contradictions and misunderstandings inherent in the Badman Report start to become clear.

The child's right to education is set out in article 28 of the UN Convention on the Rights of the Child but it is plainly apparent even there that the provision of this education is a duty and not a right. There is no tension between conflicting rights of parents and children, because there are no rights for parents in terms of elective home education, only duties. To suggest otherwise is entirely and mystifyingly specious. Further, to quote lawyer and social worker Allan Norman, on non-consensual adoption and the law:

'...the atomisation of the interests of the child and the interests of the parents, setting the human rights of one in conflict with the human rights of the other is a peculiarly Western approach. Note in particular that whereas human rights may be conceived as privileging the rights of humans over the rights of States, this atomisation approach puts the State straight back in the picture as the arbiter of the dispute between the conflicted interests of parent and child.'

- it is a dubious political tactic, which also completely overlooks the parents' vested interest in the long term future health and prosperity of their offspring.

*EDIT: Fiona Nicholson points out that the UNCRC has not yet been incorporated into UK law, so legally there is no child's right to education in this country.

In speculating about the wide and varying possible formats for home education, Mr Monk concludes with the sentence:

"The need for caution against simplistic positions is clear when one considers the motivations of home educators."

But in law, our motivations are irrelevant. We are fulfilling our duty as set out in Section 7 of the Education Act. The law makes no distinction of our reasons for doing this in certain ways, thankfully, in much the same way as it refrains from examining Mr Monk's possible motivations for the various articles, lectures and training he has delivered on the subject. In a civilised society, pending the authoritisation of an actual thought police, the jurisdiction on the inside of people's heads remains their own.

He goes on to outline the possible motivations anyway, and then moves onto rights, citing that Knight/Adonis quote at the beginning of the Elective Home Education Guidelines for Local Authorities:

'Education is a fundamental right for every child and we recognise that parents have the right to choose to educate their children at home'.

This is the problem with language. The first 'right' in that sentence is a legal right, the second is not, in that it is not set out anywhere in law that relates to our country. Not daunted by this subtle but crucial detail, Mr Monk goes on to expound it and then:

The DCSF Guidance states that 'parents have a right to educate their child at home' and there are no indications that the government intends to alter this basic position. But the right to home educate is not an absolute legal right nor is it 'fundamental', which is to say that it is not above or beyond debate.

I think it is beyond debate, because it does not exist as a right - it exists as a duty! I will entertain for a minute the notion that in exercising our Section 7 duty we somehow have the 'right' to decide whether to do this 'at school or otherwise' and the problem is that, if it is read as a 'right' and not a duty, the meaning of that whole section of law is turned on its head. I must cause my child to receive an efficient full time education etc involves me having some means of evaluating its effectiveness and whether it is suitable to his age, aptitude, ability and special educational needs. If I decide the only way I can cause him to receive such an education is 'otherwise' than registration at a school, this cannot be seen as a right but as a crucial part of the carrying out of my legal duties as his parent.

Mr Monk confusingly goes on to explain:

Section 7 of the Education Act 1996 imposes a duty on parents to provide their children with an education that is 'efficient' and 'suitable' for that child. The right to home educate is therefore conditional on parents complying with this duty.

- which I *think* is what I said......

In other words, parents have responsibilities for their children, not rights over them.

In meeting the child's right to education, I agree. So where are the conflicting rights? There follows a strange sort of analogy with Section 9 of the act:

'In exercising or performing all their respective powers and duties under the Education Acts, the Secretary of [State and local education authorities] shall have regard to the general principle that pupils are to be educated in accordance with the wishes of their parents, so far as that is compatible with the provision of efficient instruction and training and the avoidance of unreasonable public expenditure.'

- but this relates to schools and expenditure, not elective home education. To suggest a relationship between Sections 7 and 9 is stretching a point, to say the least. I am reminded of one of Cinderella's stepsisters, effortfully and fruitlessly trying on her shoe.

Mr Monk then uses the European Convention on Human Rights (ECHR) and the United Nations Convention on the Rights of the Child (UNCRC) to further establish children's rights to education and goes on to cite case law relating to corporal punishment in schools to suggest that:

.. what is envisaged here is not unfettered autonomy for parents but a relationship between parents, children and the state.

- conveniently ignoring the unassailable fact that the children of the two Scottish mothers Campbell and Cosans in the case in question were actually registered at school, so that the quotation from the judgment:

the convictions of parents must not conflict with the fundamental right of the child to education

is thrown into a whole different light when read in context with the rest of the case.

I am perplexed by this idea that it might be possible to strengthen an argument simply by lifting odd sentences even from precedent setting cases completely out of context and citing them as if they were somehow relevant to the matter in hand.

The next paragraph has me gasping. Suddenly Badman's prejudicial, already utterly negative attitude towards us from the very start of his review is explained.

For some advocates of home education, the parental right is a 'fundamental freedom' and 'an essential part of democracy'. These claims are politically strategic as they enable home educators to utilise arguments based both on the rights of individual parents and on the needs of society to defend themselves against what they perceive to be unjustified and potentially dangerous state intervention.

And there follows a rant about the Christian Right in the USA, which bears little resemblance to the UK home education movement. The thing is, when I say I do not want my children's education to be inspected by officials, it's because the few visits we allowed actually did damage the children's education. One in particular was conducted by a demanding inspector who was very impatient with my 8 year old's reading level. After he had reduced my son to tears of frustration and humiliation, he then confessed in answer to my questions that he had not read the extensive local authority file on my son's profound dyslexia before making his visit. If officers don't even read their own files in advance on the children whose educational provision they inspect, how can we safely invite them into our homes? It is nothing to do with political strategies. Our children are real people who we love, not mere political pawns for whatever world changing agendas we may have.

For others, it is a belief in the independent rights of the child that informs their 'fundamental' support for home education; an approach that is aligned with opposition to compulsory school attendance laws more generally. In challenging those who would argue that a child has a right to school life they point to research that highlights the complex and various ways in which schools fail children, and to statistics, such as those produced recently by UNICEF, that claimed that in the UK 20% of children are unhappy in school.

There follows more about school and the paragraph ends with:

Yet, for children's rights supporters of home education, the paradox is that their support leaves unquestioned the power parents have over their children.

- thus painting us in such a negative light, I am left wondering what he thinks we might do with such power over our beloved offspring. Obviously nothing benign! And yet, were he to spend any significant amount of time with the average sort of home educating family, I suspect he might be surprised to discover rather that the children have an inordinate power over their parents. Would this be frowned upon by him as well? Perhaps Mr Monk prefers the nation's children to be obedient, but only to school teachers and/or elective home education inspectors for reasons best known to himself.

There follows an outlining of two EU cases relating to German home education which do nothing more than confirm my 'NO' vote in the forthcoming referendum, although the quotes about parallel societies and 'the public interest of securing the education of the child' (thereby reducing children to the status of future work units, one assumes) are intriguing. Also this is the second occasion in this article - the first being in reference to US home schoolers - that Mr Monk makes reference to religious parents seeking to protect their children from secular tuition in schools, for no imaginable reason other than to suggest an air of fundamental extremism. This is strangely at odds with his original plan to provide a balanced view of the situation, because he must be more aware than most people that UK schooling is not secular and so therefore UK home education does not contain this element of religious concern.

Regardless of the respective merits of monitoring or a full ban, both decisions challenge the claim that home education is a fundamental right.

This is obviously true for Germany, which must not have a Section 7 like ours on its national statute. Earlier in this post I challenged the claim that home education is a right, rather than a duty in England where we are commanded by Section 7 to cause our children to receive a kind of education for which school is often not the best environment. I have heard no official concerns in this country of parallel societies or 'the public interest in securing the education of the child', so Monk's comparisons with the German and American situations seem invalid, to say the least.

The following paragraph is perhaps the most illuminating so far. Some excerpts:

For while the libertarian left, together with some advocates of identity politics who celebrate the recognition of 'difference' and 'diversity', find much to sympathise with the claims of home educators, from a collectivist left standpoint, and in particular for those wanting to prioritise economic or class issues, the privatisation of education, implicit in support for home education, provokes considerable unease.

For while conservative and libertarian supporters of home education fully embrace the political implications of the issue, supporters of home education, who would strongly resist identifying themselves with either of these groups, are notably silent about the broader political dimensions and concerns about education.

My understanding of collectivism is that there are two varieties: horizontal, and vertical. "Vertical orientation emphasizes hierarchy," and "Horizontal orientation emphasizes equality." It seems to me that a family home educating using, perhaps, the autonomous method might in many cases be described as a horizontal collective, whereas a structure such as a university most definitely incorporates a hierarchy. Both care about others: neither is individualist.

There follows a section about monitoring home education, beginning with the sentence:

The critical question now is not whether home education should be permitted but how it should be monitored.

- with which I completely disagree, and cannot see how Mr Monk has demonstrated the need for monitoring in this article before this point. Perhaps he will do so in the next few paragraphs.

But determining whether LAs require more or less powers is complicated by the fact that the existing legal framework is open to different interpretations.

Fewer powers than are currently set out in the Elective Home Education Guidelines for Local Authorities would of course be ideal for us, but I am so far unaware of other interpretations of the existing legal framework.

On the issue of registration, Mr Monk suggests that framing home education as a duty and not a right makes it "easier to require parents to demonstrate competence". Again, I disagree. It is quite possible for us to have a duty to cause our children to receive an efficient full-time education suitable to their age, aptitude, ability and special educational needs without also bearing a positive burden of proof to society, indeed this has been the situation since 1944 and it has worked quite well in most cases. While parents themselves, knowing their own children best, decide the content and quality of the education provided there is no need for this to be monitored by the state, parents having more of a vested interest in the child's eventual outcomes than the state does.

There follows a description of registration for home educators, although Mr Monk is mistaken about changes to the deregistration regulations - these still stand as they did before 2006. He quotes EO and Roland Meighan on the issue and then appears to make another illogical leap from this to the conclusion:

Faced with these interpretations it is not surprising that some LAs believe that there is indeed a 'loophole' in the law, but that it should be dealt with by requiring all parents who wish to home educate to notify the relevant LA. The key argument made in support of introducing compulsory registration for all home educators is that without it LAs will be unable to comply with their statutory duties in relation to both the education and welfare needs of children.

If Mr Monk is referring to Section 10 of the Children Act for those 'statutory duties', it is clear that unregistered home educated children were never meant to be individually covered by it, home educating parents not being listed as 'partners' in section 4.

In his 'Local authority duties and responsibilities' section, Mr Monk first examines Section 437 of the Education Act, beginning with:

This makes clear that it is for LAs and not parents to determine what is 'suitable education'.

I do not think that is clear. The way this has worked historically is quite in keeping with the wording of the statute, which is that home educating families, knowing their own children better than a local authority could do, choose the method of education which most efficiently provides a full-time education suitable for their child's age, aptitude, ability and special educational needs. If there is a failure on the family's part to establish an efficient method that is suitable and the local authority is made aware of the appearance of such, the local authority should take action to remedy the situation. But it cannot determine the best method for individual children in the first instance because it does not know or live with the children and therefore cannot have sufficient information with which to make that decision.

But while the duty to serve a notice is absolute ('they shall serve a notice'), 'suitable education' is not defined. Consequently, this creates a wide discretionary power for LAs and interpretations vary hugely across the country.

The education must be efficient, and suitable for the child's age, aptitude, ability and any special educational needs he may have. It is unreasonable to expect local authorities to understand every home educated child's aptitude, ability and special educational needs and so the local authority cannot determine whether the education is suitable for them any more than statute can.

Another leap of logic occurs a few lines later:

The DCSF guidance states that 'local authorities have no statutory duties in relation to monitoring the quality of home education on a routine basis'. While the word 'routine' here could be interpreted as acknowledging that not all home educators will be monitored, the word 'quality' could be interpreted to suggest that LAs should, at minimum, have knowledge of the fact of home education.

- both interpretations being, in my view, the least likely ones most readers would reach. (The most likely being that 'routine' means 'regularly' and 'quality' means the effectiveness of the provision.)

Mr Monk is then reduced to extrapolating previous drafts of the guidelines until he finds the words he seems to prefer to read.

On Children Missing Education (CME), he says:

The Education and Inspection Act 2006 creates two new duties that one can argue require the introduction of compulsory registration.

- going on to begin with Section 436A:

(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.

(2) In exercising their functions under this section a local education authority must have regard to any guidance given from time to time by the Secretary of State.

(3) In this Chapter, “suitable education”, in relation to a child, means efficient full-time education suitable to his age, ability and aptitude and to any special educational needs he may have.”

And in commentary, Monk says this:

Subsection (b) makes clear that this provision does not relate to home educated children that are receiving suitable education. But in order to enable them to establish [emphasis his, not mine] this, the duty not only legitimises investigation by an LA but, in contrast to section 437(1), arguably imposes a more positive obligation to act.

I refute this reading of the text, which still works perfectly well when 'suitable' means efficient full-time education suitable to his age, ability and aptitude and to any special educational needs he may have according to his parents, in the absence of any S437 'appearance' that it is not.

He goes on to cite the 2009 version of the Children Missing Education guidance (since revised) where it required Local Authorities to "make enquiries with parents educating children at home about educational provision being made for them". This has now been replaced with a note in the new guidance on page 6, which refers to a S437 action in respect of home education, not a S436A one. The new statutory guidance on CME also links back to the Elective Home Education Guidelines for Local Authorities, thereby strengthening their position in law.

On child welfare and protection duties, Monk cites Section 175(1) of the Education Act 2002:

175 Duties of LEAs and governing bodies in relation to welfare of children

(1) A local education authority shall make arrangements for ensuring that the functions conferred on them in their capacity as a local education authority are exercised with a view to safeguarding and promoting the welfare of children.

He has this to say about it:

The DCSF guidance makes clear these are 'general duties' and the emphasis throughout is on multi-agency cooperation. In other words, where education officers within an LA have child protection concerns they should inform social services departments. However, the new duty, from an LA perspective, strengthens the argument for legal reform in the same way as do the new duties introduced by the Education and Inspections Act 2006.

- though it smacks of desperation to suggest that every new piece of legislation - which came thick and fast through the Labour years - even vaguely related to home education somehow warrants complete regulation reform.

There follows a reference to the Every Child Matters agenda, which span from Section 10 of the 2004 Children Act, although Mr Monk acknowledges that the whole thing makes reference to pupils and school attendance, thereby excluding the home educated. He makes reference to the 2007 letter from Lord Adonis to a home educator's MP, containing the words:

The state does not currently prescribe what form of education parents should provide, whilst all maintained and independent school provision is prescribed in legislation and subject to inspection. This anomaly is at odds with Every Child Matters reforms, supported by the Children Act 2004, which set out the Government's aim to improve educational outcomes for all children, regardless of where they are educated, and to narrow the gap between those who are doing well and those who are not.

( - which then triggered AHEd's 'Anomaly' campaign.)

Since Labour lost power in 2010, Every Child Matters has moved off the political agenda thankfully, since it was of concern to those of us who wanted to protect our parental rôle.

Mr Monk then makes his seventh logical leap of the article by suggesting that the wording of Section 176 of the Education Act 2002, referring as it does to the consultation of pupils in connection with the taking of decisions affecting them, also

arguably supports the case for compulsory registration of home education.

In conclusion, there is an acknowledgment of the legislative protection for children from abuse in Section 47 of the Children Act 1989, which of course applies to home educated children as much as any other.

In his section on 'voluntary registration and support' Mr Monk makes the case that the support provided to registered home educating families, including as it sometimes does the contact details for support groups, and so this too "supports the introduction of compulsory registration", overlooking entirely the existence of search engines to enable home educating families to find the support which could not be more clearly signposted.

What Mr Monk says next is interesting:

However, there are two problems with this argument. The first is that this information could be made available to all parents, in part by increasing awareness of the legality of home education; an approach that would comply with LAs' duties to 'increase opportunities for parental choice'.

- an argument I could not have made better myself. And:

Secondly, it overlooks the fact that making the relationship between LAs and parents compulsory risks losing the advantages of keeping the relationship one based on voluntary co-operation. The benefits of this are, of course, hard to quantify; moreover, the experience of service provision under Part III of the Children Act 1989 provides an important lesson. In that context the much heralded advantages of a 'stigma-free' partnership between families and social services has, in the past, proved to be more rhetorical than real, as the 'voluntary' nature of the relationship masked an inherently unequal balance of power where the ever present threat of legal action resulted in both a real and perceived 'co-operate or else' scenario.

I have experienced this problem when my (now adult) children were registered with the local authority as home educated due to deregistration from school. The relationship is of little benefit to the family (except perhaps to be of support in Family Court processes when a non resident parent is against home education), indeed the interventions can be so damaging as to threaten the parent's ability to fulfil her Section 7 duty, yet one is constantly aware of the fine balance between the logical and necessary assertiveness to resist them, and the possible consequences of doing so.

Another point with which I agree:

It is likely that some parents will avoid registration even if compulsory registration is introduced. A policy of coercion from the outside is, however, unlikely to develop a relationship based on trust and openness and would effectively criminalise parents who may be providing suitable education.

He then expounds the nothing to hide argument in this context from which he unsurprisingly concludes:

Such an argument, however, overlooks the legitimate interest of the state in playing an active [his emphasis] role in protecting the right of every child to education.

And then goes on to counter with the point I would have made next, which is:

But in order to understand the extent to which the fears about registration are justified, it is important to appreciate the implications of being known to LAs.

- those implications being often quite damaging.

In his section on surveillance and monitoring powers, Mr Monk begins:

While there is uncertainty about the circumstances in which LAs are obliged [his emphasis] to investigate, their statutory powers are relatively straightforward where they have concerns about the nature of the education provided.

I do not think there is uncertainty about the circumstances in which LAs are obliged to act. Mr Monk has not, so far, successfully shown that there is and the law is clear on the point.

Within LAs, however, those responsible for monitoring home education are very rarely the same individuals as those responsible for enforcing school attendance and very much depends upon the existence of effective communication between the two. The former may consider proceedings appropriate but the notice requires naming of a school and finding a school place is not always straightforward - particularly in situations where schools have 'encouraged parents to home educate as a way of resolving dealing with a difficult pupil.

Families often resort to home education when the school system in their local area fails to meet with their child's needs or is unable to supply a consistently efficient full-time education suitable to their child's age, ability and aptitude. If such an education is not then provided at home, what is the resolution? The only logical answer - if the family still really wants school provision - can be that the school system must be made to supply the provision, otherwise the parents have no legal choice but to continue home educating as best they can. If the local authority cannot find a suitable place for the child, then the local authority cannot justifiably - or even practically - issue a school attendance order.

Confusion also exists in determining what LAs can and should do prior [his emphasis] to commencing school attendance proceedings.

I think the Elective Home Education Guidelines for Local Authorities as follows:

2.8 Prior to serving a notice under section 437(1), local authorities are encouraged to address the situation informally. The most obvious course of action if the local authority has information that makes it appear that parents are not providing a suitable education, would be to ask parents for further information about the education they are providing. Such a request is not the same as a notice under section 437(1), and is not necessarily a precursor for formal procedures. Parents are under no duty to respond to such enquiries, but it would be sensible for them to do so.

- explain perfectly well what LAs can and should do prior to commencing school attendance proceedings. The above derives from the summing up by Lord Justice Donaldson in the 1980 case of Phillips -v- Brown and Monk goes on to quote the relevant excerpt which surrounds the 'it would be sensible for them to do so' phrase therein.

Monk's next sentence is difficult to understand unless perhaps it contains a typo:

The case has given rise to confusion; the reason for this, arguably, it that it is authority both for parents being entitled to refuse to comply with informal requests for information and, at the same time, for LAs to adopt a pro-active approach to monitoring home education.

My best guess is that 'authority' in that sentence was meant to be 'authorised'. So Monk thinks there is confusion when parents *can* refuse to comply with requests:

and at the same time, for LAs to adopt a pro-active approach to monitoring home education.

And yet there need be no confusion, for there is no need for LAs to adopt such a pro-active approach to monitoring. The process is simple to understand, should be simple to carry out and is set out in section 2.8 of the Elective Home Education Guidelines for Local Authorities, as set out above. This complies with all of the relevant statute and case law and leaves the necessary way open for either party to seek resolution in court if needs be.

On LA officials being allowed inside home educating families' homes, Monk cites Lord Justice Slade in the 1985 R (Perry) v Gwent County Council case, in which Slade praises the Local Authority for making home visits, although I think this hardly amounts to useful legal precedent for either side of the argument. Then he quotes the Elective Home Education Guidelines for Local Authorities:

3.6 Where a parent elects not to allow access to their home or their child, this does not of itself constitute a ground for concern about the education provision being made. [Monk's emphasis] Where local authorities are not able to visit homes, they should, in the vast majority of cases, be able to discuss and evaluate the parents' educational provision by alternative means.

To find his 'confusion once again abounding' in this instance, Mr Monk again seeks out a draft version of the guidelines for some slightly different wording, but this is irrelevant because the draft versions were just that, and never even enacted. The draft guidance mentioned lack of home visits possibly leading to the conclusion that there was insufficient information to satisfy them - and Monk likens this to Donaldson's:

If the parents refuse to answer it could very easily conclude that prima facie the parents were in breach of their duty.

But refusing to answer a request for information, as Mr Phillips did in that case, is very different to refusing a home visit, so I cannot see how the obsolete draft version is closer to Donaldson, as Monk alleges. The two situations are unrelated in detail and not worth comparing.

The third case law Mr Monk quotes from on the issue of home visits is from R (Tweedie) v Surrey Quarter Sessions Appeals Committee (1963):

Although as a general rule, an education authority should not insist on inspection as the only method of satisfying themselves that children are receiving an efficient full-time education, there are exceptions where the authority is entitled to insist on such inspection.

The Tweedie case is 52 years old now, 46 at the time of Mr Monk writing this article. He concedes that its interpretation is questionable, but still suggests it would influence the outcome in court, if a family there challenged an LA's insistence on inspection.

Article 8 of the European Convention for the Protection of Human Rights (ECHR) is mentioned as a "legitimate argument" for declining home visits, although this is immediately countered by the approach to home education of the European Court of Human Rights (ECtHR). Mr Monk quotes from the summing up of a case there relating to Article 2, not Article 8 as follows:

'It is clear that Art 2 of Protocol No 1 implies a right for the state to establish compulsory schooling, be it in State schools or private tuition of a satisfactory standard, and that verification and enforcement of educational standards is an integral part of that right.... requiring the applicant to cooperate in the assessment of children's educational standards ... cannot be said to constitute a lack of respect for the applicants rights.'[Monk's emphasis]

And the commentary:

While those opposed to the introduction of a right of access for LAs will no doubt disagree with the approach adopted by the ECtHR, it should reassure the government that the right is a policy option that is compatible with the Convention. Moreover, it is one that arguably is required in order to comply with obligations under the UNCRC.

My commentary on that is to again fervently hope for a 'no' vote in the forthcoming referendum, so that we could only have UK and English law to contend with in protecting our families from unwanted government interventions. Monk then goes on to claim the above means "it is a matter of discretion for individual LAs to decide how to respond to a refusal to allow access".

Moreover, the legitimacy and necessity of LA power to have access to the home to see the child, to review the child's work and to meet with the parents, will vary considerably depending on what precisely they are required to evaluate.

I do not see any acknowledgment from Monk so far about the risks to the child's education of such evaluation. What of the child who is excruciatingly shy, and only feels safe in his own home, uninvaded by strangers? What of the child who is on the cusp of learning to read, who is deterred from this considerably by pressure from visiting inspectors? What of the child whose love of learning in general is so deterred, as my now adult children's love of learning always was, whenever it happened? Their education was set back by several weeks at least with every visit. Would these too be deemed failures? Such is his evident lack of sympathy for the private practice of home education, one can only conclude that they most definitely would.

On the definition of suitable education, Monk cites the Paramountcy Principle (New Zealand article, but the only free-to-read explanation of the same thing), likening the 'best interests' requirement set out in Section 1 of the 1989 Children Act:

When a court determines any question with respect to —

(a) the upbringing of a child; or

(b) the administration of a child’s property or the application of any income arising from it,

the child’s welfare shall be the court’s paramount consideration.

- to the consideration of what constitutes 'suitable' in education, thereby suggesting that a possibly conflicting parental interest in the matter might need to be discounted. The following irony is almost amusing, unless you happened to be the family in either situation:

The task for LAs is complicated by the fact that in disputes about home education they may wish to raise the threshold to be reached before an education can be deemed efficient but, in a different context, where parents [his emphasis] are challenging the education being provided in maintained schools, the reverse is often the case.

This one sentence surely encompasses the whole argument. 'Suitable education', being a subjective definition, is dependent on the position and interests of whoever is seeking to define it. LAs will probably tend to undermine that provided in a home setting, whereas parents who have their family's long term future to think of will judge it according to the progress made by the child.

It is also important to remember that it is parental perceptions of the failure of schools to provide 'efficient' education that is increasingly one of the explanations for the increase in home education.

- but presumably not Local Authority perceptions of the failure of parents to provide it that is increasingly one of the explanations for the increase in undue interventions for home educating families?

Mr Monk does then concede that under child welfare regulations:

the law implicitly recognises the fact that while the home environment may be far from ideal, the alternatives may be worse. There is, however, no equivalent formal acknowledgment of this in education law.

And so in some cases...

... a range of support measures to assist home education may be more appropriate.

But 'support' is often not actually useful or helpful, being a complex word which is often misappropriated to mean something other than its dictionary definition. One would imagine, for example, that a lack of any kind of coercion would be involved in its genuine provision.

Reverting discussion back to the Section 7 wording, Monk goes on to also concede that a local authority cannot gauge an individual child's ability and aptitude - but he uses this point to then suggest it as a further reason why they should be given access to the home, the work and the child. On privacy, he has already said back on page 6:

.. the extent to which the 'private' sphere is every truly private is questionable.

Monk cites the Harrison case, defining 'education' as:

'the development of mental powers and character and the acquisition of knowledge through the imparting of skills and learning by systematic instruction'

And 'systematic' as something that:

'achieves that which it sets out to achieve'

- suggesting that this also:

legitimises the necessity of access to a child's work and evidence of progress.

But unless we have completely given up on the presumption of innocence in this country, it of course does nothing of the sort.

The next paragraph is interesting, in light of the absence of official definitions for the terms:

In practice some LAs adopt this interpretation when evaluating home education; but this positive requirement is rarely publicised. One possible reason for this, and the fact that the guidance makes no reference to basic skills in its definition of 'efficient' is that it might open the gates to negligence actions from children leaving mainstream school without these skills. As levels of illiteracy attest, this is not an insignificant number.

If Monk is right about this, it should offer some protection from interventions for home educating families and it is arguable that it adds strength to the argument therefore that families should be the arbiters of those definitions in the absence of reported problems to suggest otherwise.

On socialisation, Monk cites American research, which states that:

Home educated children participate in more activities of their wider communities than schooled children and grow up to be functional and happy in their chosen lives.

Monk adds the following comment:

There is no clear evidence to refute this research.

There follows an extensive and illuminating section on civic education, containing as it does the words:

In this context, home education raises two concerns. First, it is arguable that unregulated home education implicitly condones education that conflicts with attempts to foster national cohesion and democratic values. Secondly, there is the view that home educated children, 'cut off' or 'withdrawn' from mainstream society, will in effect be denied an education that respects their individual rights to develop their own views and values. The two concerns are linked in that failure to counter the latter, in the long term, arguably undermines the former.

- which raise profound questions about the purpose of education itself. Is it, as the article just linked asserts:

  • To give all learners the basic skills to access and drive their own education.
  • To develop the softer, non-subject life skills needed to succeed.
  • To impart powerful subject knowledge (and by this we mean the facts, concepts and procedural knowledge needed to continue to take that subject further and progress in it)?

Or is it to change the world and its opinions, as Monk seems to assume, presumably to bring it more into line with his own? As the parent of five home educated children who are individuals, each with their own distinct and very contrasting opinions, my instinct is to protect them from this kind of dogmatism as much as any other, so that they might retain the freedom to genuinely think for themselves.

He cites an American case regarding the Amish people, in which their right to not send their children to school beyond the age of 15 was upheld, with the commentary:

An important factor for the Supreme Court .... was that the Amish community was a 'highly successful unit' and its members were 'productive and law-abiding'. This highly pragmatic response to a large extent coheres with and explains why, to date, ... successive governments have chosen to largely condone home education. Put simply, these individuals, neither the parents nor the children, have posed, or been perceived to pose, any economic or political problem for society as a whole. That the government appears now to be reconsidering this status quo [by means of the Badman Review] can similarly be explained by concerns about Islamic fundamentalism, parallel communities and social exclusion more generally and the possibility that groups perceived as being potentially not 'law abiding' could take advantage of the legal 'anomaly' of home education.

I don't know to what extent home education plays a part in Islamic fundamentalism in the UK, but I think if any Islamic fundamentalist had been home educated instead of educated in a Muslim religious school and a mosque, we would be extremely aware of it by now because the fact would have been heavily publicised by people like Barry Sheerman .

In his conclusion Mr Monk again cites Donaldson:

that where LAs have a duty to act they should not behave like an ostrich - putting its head in the sand 'in order that it should not learn of anything which might place upon it the burden of discharging its duty.'

and further comments:

Domestic and international law, in particular the UNCRC, all emphasise that the child's right to education is fundamental and make clear that taking the ostrich approach would represent the state's failure to comply with its own obligations to fulfil such a right.

- even when Section 7 of our Education Act states this as a parental obligation, not a governmental one.

Moreover, while the law recognises the importance of respecting parents' views, parents must also recognise that their children have rights independent of their own. It follows that parents who choose to home educate must acknowledge the legitimate interest of LAs, acting as the agents of the state, to monitor their provision.

On the contrary, parents who choose to home educate must only acknowledge the current legal position, which specifically precludes regular monitoring by the state.

Parents who home educate are not simply performing a private duty but also a public function.

I disagree. They are mainly obeying their natural instincts to educate their young, which also happens to comply with their Section 7 legal duty. They cannot be expected to be responsible for the mores of the state or the entire world and it would be unreasonable to expect this of them.

For all these reasons the case for compulsory regulation is logical, legitimate and compelling.

No. It is expensive, invasive and damaging to children.

He later sets out a good argument for us to continue to refuse state funding:

One can argue that the corollary of requiring parents to acknowledge the public function of education is that the state accepts its own financial responsibilities. Indeed, in a context of increased support for diversity in education, increasing numbers of faith schools and state regulation of independent education more generally, one of the anomalies of home education is its current lack of publicly funded support.

The article ends with a prophetic vision of the unfolding situation, in the wake of the 2010 election which put paid to Badman's recommendations:

The recent consultation process and forthcoming review may reflect the Government's desire to resolve some of these issues. Alternatively it may, as is sometimes the case, simply be a way of forestalling making difficult decisions. If so, it may result in a continuation of the present situation, whereby the drawing of difficult lines is left to LAs and home educators - to negotiate in a localised, diverse and ad hoc fashion.

This is the present situation, which is problematic to some extent, but still vastly preferable to what would have happened if the 2010 election result had been different. The Conservatives favour the ethos of localism, as set out in their 2011 Localism Act and it is therein that I suspect we might find our remedy for Monk, who is now using the content of his 2009 article to deliver a series of training programmes to Local Authorities, advising them to ignore elements of the Elective Home Education Guidelines for Local Authorities and reassuring them that the success of cases in the EU and America would support their actions in so doing.