Monday, August 31, 2009

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.

16 Comments:

Blogger Sheila said...

Thanks Gill - much food for thought.

Re. your first point, this is even clearer NOTB where the wording of the primary legislation is:

"It shall be the duty of the parent of every child of school age to provide efficient education for him suitable to his age, ability and aptitude either by causing him to attend a public school regularly or by other means."

10:56 am, August 31, 2009  
Blogger Elaine said...

Fantastic summary Gill I always enjoy your factual and thought provoking posts .

2:36 pm, August 31, 2009  
Anonymous Ali said...

Thanks for yet another excellent post, Gill.

6:45 pm, August 31, 2009  
Blogger Debs said...

I find it quite chilling that "Parents are the best judges of their families' needs" has been removed from that DCSF document. Have they then decided that parents are *not* the best judges? That the state, who does not know the family from Adam, is?

And why, having included it in the first place, then go back and remove it?

8:33 pm, August 31, 2009  
Anonymous Firebird said...

As you've pointed out yourself, despite some serious attempts at mission creep ECM doesn't apply to us at all. It applies to LAs in how they provide existing services.

10:30 pm, August 31, 2009  
Anonymous Anonymous said...

the ECM omission - is that not part of thr published brief of the badman review, that it should look at ECM? It's just after the recommendations in th4 big pdf, which this machine won't let me open.

also wanting to check that you will somehow be presenting these arguments to the select committee - as coming from the sometimes it's peaceful blog community, which has X followers, Y regular commenters and Z hits a day? becauseof what lord lucas said about groups having more weight than individuals.

sorry for typos - have to stop multitasking quite so much...

emma

9:56 am, September 01, 2009  
Anonymous Anonymous said...

the ECM omission - is that not part of thr published brief of the badman review, that it should look at ECM? It's just after the recommendations in th4 big pdf, which this machine won't let me open.

also wanting to check that you will somehow be presenting these arguments to the select committee - as coming from the sometimes it's peaceful blog community, which has X followers, Y regular commenters and Z hits a day? becauseof what lord lucas said about groups having more weight than individuals.

sorry for typos - have to stop multitasking quite so much...

emma

9:56 am, September 01, 2009  
Anonymous Anonymous said...

"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."

So says Tom. It is not only our right to educate according to our own beliefs, but it denies our children's right to educate as THEY see fit. I have not heard many home educators giving an education that home educated children will not receive (how different to schools).

Of course, the Badman crowd are likely to say that home educated children are cowed into home education by their parents. If they find out differently, then they are likely to ignore what children say. So the Badman crew are SELECTIVE in how they use the children's commentary, and rather despicable in their cynicism.

Danae
(Nice blog entry as usual, Gill)

7:21 pm, September 01, 2009  
Anonymous Anonymous said...

Since the phrase which has disappeared, "Parents are the best judges of their family’s needs", was associated with the Summerhill tribunal, I'll bet Summerhill still has a written record of it somewhere. Maybe we should ask them if they could send it to us? It's a wonderful phrase and it would be great to be able to cite it to the review inquiry.

10:52 am, September 02, 2009  
Blogger Karen said...

Nice summing up. The whole Badman Report makes me so uneasy.

As a home educator, I feel like the Jews must have felt in Nazi Germany before they were rather drastically eliminated.

2:38 pm, September 02, 2009  
Anonymous Anonymous said...

brillent summing up again and we agree with you.You put int owrds so well many thanks for your work on this.

4:25 pm, September 02, 2009  
Blogger Loubeeloo said...

http://cmis.milton-keynes.gov.uk/CmisWebPublic/Binary.ashx?Document=17068

looks like the government forgot to remove "Parents are the best judges of their family’s needs" from this document.

i agree with the statement above about feeling like this is Nazi germany.... i am scared for my kids and myself.....and i used to think we lived in a democracy... how sad!!!

8:11 pm, September 02, 2009  
Anonymous Anonymous said...

brillent work again you explain it so well many thanks our whole family now looks forward to reading your thoughts on all of this and we agree with you many thanks for your work/time you have spent on this.

6:54 pm, September 03, 2009  
Blogger Carlotta said...

Hi Gill,

Great post, (as usual). Am so glad you raised the issue of s7 and will have to check out the Summerhill tribunal again.

I do agree that Badman has appeared to take s7 to mean that a suitable education must be attained and not simply provided but also I think that s7 (as in causing a child to receive a suitable education) *could* be taken to mean the epistemically impossible...ie: that parents must be capable of opening up the minds of their children and forcing an education into it. This is certainly how Badman appears to see section 7, (if he has thought about it at all, which he may not, of course).

Given this ambiguity, I think we could argue that if HE parents are to be held to account under s7 for the educational attainment of their children, then schooling parents must too, since otherwise the law would be being applied inequitably.

I also think we should argue, as you do, that to hold any parent to account in this way, is patently ridiculous!

10:52 am, September 05, 2009  
Anonymous Anonymous said...

Hi Gill,

>I've tried Googling it: it seems to be quite gone.

Not so. The line appears in Hansard, here...

http://tinyurl.com/pzc8m2

..where we learn it comes from the 2004 document "Choice for Parents, the best start for children: a ten year strategy for childcare".

Google for that (with the quotes) and you find it here:
http://www.hm-treasury.gov.uk/prebud_pbr04_adchildcare.htm
(http://tinyurl.com/lvfnef)

All found with google. Clearly you need to get your boys to give you a lesson in google searching :-)

Hope that helps.

3:09 pm, September 12, 2009  
Anonymous magnesium said...

Wonderful summary Gill! Everybody experiences stress. Stress comes from many sources: work, life, money, friends and family. Each person will have a different strategy that works best to manage stress effectively. The trick is to find which works best and make a habit of it. Forming a habit involves repeating an action several times, until it becomes a routine response.
Make laughter a habit, for example. Or practice visualizing a calming image every day, regardless of whether stress is a factor or not. Once these actions are habits, they will help to dispel the negative effects of stress, and also promote clear thinking.

8:03 am, September 25, 2009  

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