Stress testing the Badman report: points arising: Legal

Today I'm outlining what I see as the five main points arising from my critique of the Badman report [opens pdf] which are about the law. No doubt others will have worked out more, equally important points or might disagree with my choice. If so, I'd appreciate comments to that effect.

1. A key point that Danae raised is that according to Section 7 of the 1996 Education Act, which sets out the

Duty of parents to secure education of children of compulsory school age,

education is compulsory, but its uptake is not:

The parent of every child of compulsory school age shall cause him to receive efficient full-time education [my emphasis]

So technically speaking, according to that Act of Parliament, you can provide a suitable education and the child has the choice of whether or not to learn from it. Of course, it must be this way when you think about it, otherwise falling asleep at the back of a double Geography class in school would be illegal, as would failing any exams set by a school or other associated body. There's a good reason for it too: it's impossible to force a person to learn something. If you've ever tried it, you'll know it takes tremendous amounts of unethical coercion after which success is by no means guaranteed and there is a large amount of luck involved in the process. This was one of the arguments successfully used in the Summerhill tribunal of March 2000.

Translated into home education terms, the parent's educational provision for the child can be inspected for compliance with the Act, but the child's uptake of that provision can not: a position which is not compliant with the Badman recommendations for Local Authority officers to effectively test the child on its uptake of the previous year's provision.

Carlotta and others have pointed out that the ECM regime has been introduced since the Summerhill tribunal, which talks quite a lot about 'what pupils need to learn and achieve' (but weren't we asserting an exemption to this on the grounds that the 'pupil' label doesn't apply to our children?) although I see the golden nugget of a phrase that I found in one of the associated documents:

Parents are the best judges of their family’s needs

has now been removed. I've tried Googling it: it seems to be quite gone.

But a large proportion of the detail supporting the ECM 'Enjoy and Achieve' outcome is incompatible with elective home education and I still think the review should have done something to address this: either by recommending a change in the wording so that the relevant documents could be made to accommodate us, or by establishing for certain that we should be excempt. Instead, the review seemed to completely ignore the whole ECM edifice: a strange and curious stance for it to take.

Other key legal issues raised by the report are as follows:

2. It makes repeated mention of the United Nations Convention on the Rights of the Child (UNCRC), in particular articles 12, 28 and 29 to support its call for the regulation of elective home education, before going on to talk about the autonomous learning method in terms of

a quality of education that lacks pace, rigour and direction.

And yet autonomous education lends itself especially well to the requirements of the UNCRC: moreso than more conventional methods, as I hope to have time to argue in a future post. However, that learning method is not conducive with the Badman recommendations for regulation, because the detailed planning ahead of autonomous learning provision is impossible.

3. Moving on to a more general point about the fundamental legality of the recommendations to regulate, Tom said in comments here:

Badman could learn a lesson from the US Bill of Rights. The Ninth Amendment provides that all rights not previously listed are retained by the people.

In other words, our rights are inherently ours; they aren't granted by the government. If this is true in America, it is true everywhere.

The Badman and Balls' report is trying to introduce a de facto licencing scheme for home education in England. So he is denying a fundamental truth about our right to educate according to our own beliefs.

I think this is an incredibly powerful position, containing as it does a simple but crucial truth.

4. A more specific and separate legal point arises from recommendation 23 of the report:

That local authority adult services and other agencies be required to inform those charged with the monitoring and support of home education of any properly evidenced concerns that they have of parents’ or carers’ ability to provide a suitable education irrespective of whether or not they are known to children’s social care, on such grounds as

■ alcohol or drug abuse
■ incidents of domestic violence
■ previous offences against children

And in addition:

■ anything else which may affect their ability to provide a suitable and efficient education

- the 'anything else..' rider being dangerously vague and therefore potentially opening the door to arbitrary and prejudiced decisions.

5. Finally, and perhaps most importantly, the report's text and recommendations ride roughshod over that most fundamental principle of English law: the presumption of innocence. Phrases such as:

How can local authorities know what they don’t know with no means of determining the number of children who are being electively home educated in their area, or the quality of what is provided, without rights of access to the child?

amongst many others, starkly demonstrate an alarming lack of trust in parents who are assumed throughout the report to be guilty until proven innocent.

To sum up, my points in this post are as follows:

1. Educational provision is compulsory; its uptake is not. So children can't be compulsorily tested on their uptake of the provision.

2. Autonomous education is especially compliant with the entire UNCRC but the report's recommendations are incompatible with autonomous education, thereby removing the option for parents to educate 'in conformity with their .. philosophical convictions'.

3. To quote Tom, "Our rights are inherently ours; they aren't granted by the government." But the proposed de facto licencing scheme for home education in England would strip us of some of those inherent rights.

4. The element in recommendation 23, "anything else which may affect their ability to provide a suitable and efficient education" (and other similar phrases) is dangerously vague and therefore potentially opens the door to arbitrary and prejudiced decisions.

5. Much of the report rides roughshod over the presumption of innocence.