Lord Soley's first contribution: 2nd reading of the bill debate in the House of Lords

Lord Soley's bill was read for the second time in the House of Lords last week, during which a scheduled debate on the subject took place. In this post, after a short overview, I'm going to go through Lord Soley's initial contribution to the debate interspersing it with my comments as they come up. In future posts I will cover the other contributions, as time allows.

Overview:

The debate was mainly monopolised by people who are in favour of the bill, with the notable exceptions of the Lords Lucas and Agnew, who spoke on behalf of the government. The speakers in favour of the bill listed recent news stories and bureaucratic reports calling for more regulation but mostly avoided mentioning the already existing remedies for concerns, as did the news stories and bureaucratic reports themselves. Lord Lucas mentioned the need for more evidence and the absence of need for more regulation. Lord Agnew announced a forthcoming public consultation into the wording for updated new guidelines, which will clarify the legal position for parents and local authorities. We assume the bill will therefore be deemed unnecessary.

The debate:

House of Lords Hansard

Home Education (Duty of Local Authorities) Bill [HL]

24 November 2017

Second Reading

12.46 pm

Moved by Lord Soley

That the Bill be now read a second time.

​

Lord Soley (Lab): My Lords, there is a difficult balance to be struck between the rights of parents to have the education for their child that they choose and the rights of the child.

In response to this I can do no better than to directly quote the then Chair of the Home Education Youth Council from a 2009 meeting with a civil servant, Chloe Newby (was Watson), when she said:

"I wanted to say that parents don’t just have a right to educate, they have a duty to educate, and those things are not in conflict. Parents have a duty to educate their children as they see fit according to their age, aptitude and ability and that obviously only the parent can be the judge of that, no-one else can, because the parents know their children best. Therefore, it’s not about between the rights of the parent and the rights of the child, since the rights of the parent are only a byproduct of that responsibility. So they are not in conflict and they don’t really need ‘balancing’, because they weren’t in any way unbalanced, they follow on from one another, and it’s a non-sequitur to suggest that they are opposed, or in any way not concurrent."

Back to Lord Soley:

That is what I have tried to do in this Bill. We need to get that balance right. Let me be quite clear that I have always been in favour of home education.

In which case, he perhaps needs to learn more about it, particularly the damage done to our children's educational provision when it's unnecessarily monitored.

It is a perfectly reasonable choice for a parent to make, as long as they feel equipped to do it and able to accept help if they run into difficulties in any form. One thing that has troubled me for some time is that there is no registration of children out of school in this country—for either children who are not registered for a school in the first place or who are taken out of school and disappear. For reasons that I will explain in a moment, this is becoming a much bigger problem than it used to be. The issue is not whether some parents can do it well. It is about how we help those who cannot do it well and protect the rights of the child.

Section 437 of the Education Act already does this.

Some years ago, when I first raised this in a blog on the House of Lords, I was inundated with opposition. I am delighted to tell the House that, on this occasion, the majority of letters, emails and phone calls I get are in favour of the Bill.

This is because most campaigning home educators deem Lord Soley a lost cause in terms of being open to persuasion that he might be wrong and so did not bother to write to him. (When we do write en masse, we are accused of being a vociferous minority, about which, more in future posts in this series as the term did come up, though rather vaguely, there being no obvious grounds for it. It was sort of thrown in for good measure.)

There is recognition now that registration is important. Part of the reason for that, which I will expand on in a moment, is because children are now known to have disappeared and been abused, radicalised or put into extremist situations. We have to deal with that. We cannot ignore it, for the sake of both the child and society as a whole.

A few home educated children have been abused in this way - a tiny amount compared to the numbers abused by professionals - but in every case, the children involved were already 'known' and correct procedures not followed. The regulations for safeguarding home educated children do exist, just as much as they do for every other child, but are often not properly carried out.

In recent years, the increase in home education has been massive and I will give examples of that. I have had help from across the board, but two of the councils that have been most helpful to me on this are Hampshire and Kent. They have given me information that I hope that the Government will see in due course. I should say in passing that these are Conservative-controlled councils, but this issue goes across the board and is not party-political.

Regulations should be the right ones on principle, for a few amount of children as much as for a large amount.

The problem is throughout the United Kingdom, although the Bill applies only to England and Wales because in Scotland education is a devolved responsibility.

Problem? Home education is usually a solution for the child and very far from being a problem. Problem for whom, I wonder?

As I said, the expansion in home education has been considerable. Let me quote from the House of Commons report on home education. For those who have copies, I will read from page 2, which says:

“In July 2014 local authorities in England recorded 27,292 home educated children. The figure for July 2013 was 23,243. Overall, the number of home educated children increased across the country by 17% between July 2013 and July 2014”.

It then goes into further detail for those who want to pursue it.

The other report that I thought significant comes from Kent County Council, which, as I have indicated, has been very helpful with its information. It says:

“There were 1,203 new registrations during the 2016-17 academic year, which was an increase of 17.1% on 2015-16. That is just one year”.

Importantly, because this indicates where some of the problems are,

“1,003 registrations were closed during 2016-17 academic year”,

which Kent says demonstrates the numbers transferring in and out of home education status. It is in a constant state of flux, causing significant disruption to children’s ​education and to the school. In other words, the child is taken out for a period and then goes back in, which is disruptive for both child and school. Kent goes on to say that it believes some of this is because of parents using it to avoid school attendance orders and associated fines.

I can see how this might make life difficult for some Kent schools, but I fail to see why the education provision of home educated children should be damaged to make things easier for schools. One of the main reasons for home educating is to prioritise one's own child's provision. Home educating parents cannot subject themselves to monitoring in order to prevent the disruption for schools, even if the link was not as tenuous as it appears to be.

The numbers have increased dramatically. Hampshire, which, as I have indicated, took the initiative by contacting me after seeing my Bill, currently has 1,422 children registered as home educated, and those are only the ones that they know about. That number has tripled over the past five years. Again, that is common across the country. Incidentally, the BBC did a survey through local authorities and found that 32,262 were missing from school for substantial periods. Even more worrying, and I will come back to this, 3,987 could not be traced at all. That is where we have a very serious problem, which we are not facing up to.

Schools are struggling to fund support for Special Educational Needs, which results in deregistrations. Measures have been taken to tighten up on school attendance, which isn't easy for many children. Increased rigidity in the system is naturally going to lead to more people opting out of it. And still, regulations should be based on principles and not numbers.

I was pleased when David Cameron’s Government considered including an inspection for out-of-school settings.

Yes. Would this not solve the supposed problem?

But my Bill deals with a different part of that problem, which is the issue of parents who do not register their child for school at all; therefore, we have no idea where they are or what is happening to them.

But people do know where they are and what is happening to them. Their parents do, for a start, which is the most important thing. Then there are doctors, dentists, shop assistants, other parents, neighbours, extended family members, activity leaders and so on. The number of times this has not been the case in situations that have ended in Serious Case Reviews can be counted on one finger.

There seems to be some cloudy thinking about who has responsibility for the safety and wellbeing of children about whom no concerns have been raised and no concerns noticed. Statute compels officials to take action if they notice a problem but if they do not, it is to be assumed that all is well within the family. This is to preserve both the resources of the state, focusing these on the children who actually need them, and the vital privacy of the family, which is set out in Article 8 of the Human Rights Act.

Then there are those who are taken out during the course of the school year and then go back in.

Some children also change schools as their families move around the country - even around several countries. Is this freedom too to be legislated against? It is surely equally disruptive to the educational establishments concerned.

I have not had a great deal of involvement in education and I do not claim that much knowledge of it, but one reason why I got involved with this issue goes way back in my own past, to many years ago when I was a probation officer. I knew then that the parents of children who took them out of school seeking to abuse them knew that they could hide the child.

Anyone could hide or abuse a child. Anyone could do anything: one of the hallmarks of a civilised society though is the presumption of innocence. This means that just because a person could do something, we must not assume in the absence of any other indicators, that they might be doing it.

I must stress that, because sometimes we see such cases in the paper and we think that the parents look hopeless and incapable. That is often true, but it is also true that parents who abuse children, either sexually or physically, are very often clever, intelligent and incredibly manipulative. Social workers, psychiatrists, probation officers or anyone else dealing with such parents have to be very hard-headed and clear-sighted because it is so easy to fall into the trap of thinking that everything is all right and that the black eye came from the kid falling down the stairs or something of that nature. We cannot afford to do that.

I fail to see what this has to do with home education. It has been shown that home educated children have statistically less chance of being abused than the school-attending population, so why this old chestnut again? At the risk of being repetitive, we already have sections 17 and 47 of the Children Act for those very few cases there are, and home educators are just as subject to these laws as anyone else.

That is one reason why I have always been troubled that in this country, almost alone among the developed countries, we do not register children.

But we do register children in this country. We know when they're born, we know when they're ill and we know the address that their child benefit is paid to. But they are children of their parents and not the state so collectively, it's none of our business to know where they are educated - if there are no specific reasons to suspect these arrangements might not be suitable.

Very importantly, we also do not offer much help to those who home educate but need help to do it well. We just leave them to it.

The state offers school. If this offer is declined, parents are free to make other arrangements. Schools should meet children's needs. If this doesn't happen, there is supposedly a process of recourse for parents. If this system is not working, then surely it is what needs the attention of politicians and not the currently adequate and finely balanced home education regulations.

Countries such as the United States, Canada and Australia not only have a system of registration, which obviously varies from state to state, but also offer great help. That is necessary if you are in a very large geographical area where home education is often the only alternative to boarding. As I say, these countries recognise the need both to register and to provide help. We do not do either.

Not only do we not recognise the need for registration - we actively campaign against it, with good reason.

In a moment I shall go through the Bill, but perhaps I may make a final point. When I saw the Minister the other day I referred to two cases which are just the tip of the iceberg. One concerned a child in south Wales named Dylan Seabridge who was taken out of school. He was not known to any other local authority ​or organisation. The next thing that was known about him was some years later, when a 999 call was made. The child was taken to hospital but it was too late and he died. He had been starved to death.

As Lord Lucas later pointed out, Dylan Seabridge was 'known', concerns were raised and the correct action was not taken.

There was a similar case in Birmingham only a few years ago.

Would that be Khyra Ishaq? Also someone about whom concerns were expressed to authorities and sufficient action not taken.

Today, interestingly, I learned from a very reputable source, a local authority officer, about a child who was taken out of school at the age of about eight. He disappeared and nothing was heard any more until some months later when that child, along with his baby brother and his mother, were found buried in the garden of the house. No one knew where that child had gone. He was taken out of school, he disappeared, and then he was found dead.

This sounds like a rather sensationalist anecdote, about which we are given no further indication. And yet, as is often the case with such stories, when we scratch the surface we find that timely concerns were raised, and insufficient action taken by the authorities. The correct remedy for officials not following the law properly is NOT more laws.

The Government have been very good about issues like children being taken into slavery or those at risk of sexual abuse and so on, but unless we know what happens to children who are taken out of school and disappear or who are not registered for school, we are not doing our duty towards the rights of the child. That is why this is important.

I do wish Lord Soley would be legally precise in his sweeping statements, and better informed. The state's duties are well set out in law and - when carried out correctly - work perfectly well. If Lord Soley wishes to improve this situation, perhaps he could campaign for better training for officials? Lord Agnew's promise of clearer guidance is another good solution to this supposed problem being incorrectly laid at the door of home education yet again.

As I say, the Bill tries to strike a delicate balance between the rights of parents and the rights of the child.

The bill is about as delicate as a sledgehammer being used to crack a non-existent nut. Also, though I yawn to have to explain it again, this belligerent setting of parents' rights against those of their children is at best a misunderstanding of the situation and at worst, a clumsy attempt to interject yet more powers of state into people's peaceful family lives.

I want to say straightaway that I will table certain amendments. Those who have read the Bill carefully will know that two phrases that will trouble people are the requirements to check on a child’s physical and emotional development. I put them in in the first instance precisely because of my worry about the minority of abuse cases. However, having thought about it for a week or so, it is clear that that is unrealistic. I will seek to amend the Bill to take those words out of the Long Title and subsections (1) and (4) of the proposed new section in Clause 1(2).

Wow, that was a bit sudden. Apropos of nothing? We have deliberately not targetted a letter campaign at Lord Soley and his chums because they have proved to be so entrenched in their views that there seemed to be little point in so doing. And yet, after justifying this bill on supposedly generalised health and wellbeing concerns, these are now magically no longer a problem? As a rationale, it is not hanging together very well at all.

What I really want is a system where the majority of parents who home educate very well and want to be left alone are not caused any hassle by the Bill. We need to let them get on with it.

That would be the other amendment I might possibly have to table, apart from others that may be suggested by the Government or elsewhere.

Lord Soley curiously seems to think people are interested in amending his bill, rather than rejecting it outright.

If parents are subject to one inspection and the local authority feels that everything is going well, there is no reason why that should ultimately become an annual inspection. However, if parents either need help or are asking for help, or if the local authority is worried about the welfare or education of the child, inspections might need to be carried out more frequently.

This is not an improvement in the current system, but quite the opposite and nor is it in keeping with the spirit of the law. If local authorities have specific welfare concerns about a child, these should be addressed by trained social workers under sections 17 or 47 of the Children Act. They should not be fudged by education officers untrained in welfare issues. If the local authority is worried about the educational provision for specific reasons, these should be addressed first by informal and then formal enquiries, as per Section 437. Does his bill seek to replace section 437? If not, how would it work to have two sections of the same act giving contrary instructions to local authorities?

The wording I include in proposed new Section 436B(3) in Clause 1(2) would ensure that there is a minimum of one inspection per annum and that it would continue normally thereafter. Again, I emphasise that the majority of parents who take their children out of school are committed to educating them well.

Lord Soley seems already to have all knowledge of home educators already at his fingertips, if he knows for sure that the majority of parents who take their children out of school are committed to educating them well. I am curious to know how he has come by this information, but perhaps we should just ascribe him with superpowers and let the matter rest there. Such an eminent man could not possibly be assuming knowledge he does not have - that would be supremely ironic in the context of him proposing more information-gathering about home educators.

However, there is a second group of parents — I suspect that they might form the largest group — who may want to educate their children well, but they struggle. That may be because they do not have access to all the facilities they need or because their circumstances change, such as perhaps taking on a more demanding job or something of that nature.

He has no superpowers: this is complete guesswork and speculation. Attempting to make new laws on the basis of fantasy fiction and fabrication.

What often happens at the moment is that these children are taken out of school and then put back in again a year or so later. That is very disruptive both for the child and the school. ​Another issue has been pointed out to me by a representative of Kent County Council; it is something that I did not know about. There is considerable evidence to suggest that children are taken out of school to avoid attendance orders and fines. I think that the Minister ought to look at the authorities that are reporting this problem. I have been told that taking children out of school to avoid fines is a major cause of this issue for local authorities. Again, this goes across the board politically.

I would contend that the problem here is the fines. I did not know that children who are already registered at schools could be subject to school attendance orders, but quit the draconian punishments and develop a more sympathetic system and then fewer people might want to take steps to avoid its unpleasant consequences. Are they schools, or day prisons? Places of learning, or of compulsory confinement? Home educators could explain that learning is much more optimal when it is not forced.

The Bill is straightforward in most senses. It seeks to amend the Education Act 1996 in such a way that there is a requirement on local authorities to register. Once we start registering, we can then start to help, advise, direct and protect. The trick here is to get that balance right.

He is right to call it a trick. It would be mere, "helpful" registration only one year, and full-on Badman recommendations the next. Other speakers in this debate made clear their animosity to their very existence of home education, so we have no reason to trust that this is not the end-goal of this slippery slope, paved with apparent good intentions.

I want to work closely on this with the various education bodies, with the Government, in particular, and with local authorities to make sure that we do it well.

But not with home educators? Is it none of our business?

I know people will say, “Well, at the moment, local authorities haven’t got the resources and can’t do it themselves”, but if we look at the numbers I gave earlier and bear in mind the problems of abuse, radicalisation and extremism, we cannot ignore this any longer.

It is not ignored. There is no problem. The current regulations are perfectly adequate.

On radicalisation alone, I would simply say that as more cases come to light, as they are, media interest in and public pressure on this issue will grow. It is no accident that 10 or 15 years ago, I faced more opposition than support to what I was saying; now, I get more support than opposition.

That is what is usually called being in an echo chamber.

Interestingly, some of the letters I have received were from people who wrote to me 10 or 15 years ago and who are now saying, “I got it wrong. I think we have to have this, but please do it in a way that doesn’t put too much pressure on me, because I am doing it okay”. I understand that and I want to achieve it.

I do not believe there have been more than one or two such letters. If Lord Soley wants us to believe there were more, he should anonymise and then publish the letters. I have not known any home educators express any sentiment in support of his bill, and I am connected with many home educators both online and off. Most people are very much against it but have not bothered to write to him to say so, as his views seem so entrenched.

New Section 436B would put the duty on the local authority to monitor children receiving elective home education. As I have indicated, in Committee I will try to delete “the physical and emotional development of children”. I do not think that anybody will object; I think the penny will drop that we could not monitor that, as it did with me when I drafted the Bill in the first instance.

Something is not quite right about this. Is Lord Soley drafting bills on a whim, to be immediately changed on another whim? It sounds like this is what he would have us believe. It is most disconcerting to see the possibility for actual laws to be made in this casual and ill-informed way.

I think also that those words troubled the people who are doing home education well; many of them wrote to me saying that I am Mao Tse-Tung in drag, trying to impose state control on all these people.

Really? Many of them wrote to say that exact thing? Or is this a casually sweeping metaphor, aimed at undermining and diluting people's valid and real concerns?

Let me reassure this House and people outside that I am not Mao Tse-Tung in drag. I want a light-touch regulation for people who are doing home education well and I want to help those who are not. I also want to protect those children who are at serious risk.

We already have light touch regulation for home education. Those who really are not doing it well should be issued with school attendance orders after the informal and formal processes have been exhausted. EOTAS (the system of leaving a child on-roll but not attending school because there is no school to meet their needs, so the local authority has to fund the provision) exists for those children who cannot attend school, but whose parents cannot home educate them. Sections 17 and 47 of the Children Act already do protect those children who are at serious risk. As Lord Agnew later said in this debate, local authorities already do have the tools they need.

My proposed new Section 436B then lists the duty of the local authority to monitor children. New subsection (2) is, in a way, the key one, because it requires registration; it brings the issue into the modern world, where we register it.

Registration is not modern. It could actually be seen as archaic, when one looks for example at the requirement for everyone to carry papers in WWII which was then relaxed in peacetime. The truly modern approach is the mature and sensible one, which trusts people to be innocent until proven guilty and does not track, register and assess them just in case they might commit a crime.

New subsection (3) covers the issue of whether the assessment will be annually, or more than annually; as I say, the key there is to allow it to be done annually for people doing home education well. We may even move to a situation where, because everybody is certified, we take that provision out altogether.

So we're not only registered, we are now also to be certified? The reason I am addressing the debate word by word in this way is because very often the clues as to the real plans behind such proposals leak out in throw-away words such as these. There is a huge difference between registration and certification. The one is simply a process of adding names to a list (which is happening anyway as a result of section 436A) and the other includes a process of approval - and its opposite, disapproval. An active judging of the provision before it has taken place, and permission to continue approved or denied. Very like the Badman recommendations in fact. His use of the word 'certified' in this context gives us a clear indication of the real intention behind this bill.

We must have a minimum of annual assessments in order to allow other assessments ​to take place when we are worried about a child or the quality of the education, and so on.

This point in particular completely ignores section 437 of the Education Act. Information about the provision is to be sought if the local authority has concerns that it might not be suitable. It is not to be sought anyway, whether or not there are concerns. Where it is sought and concerns not allayed, more information is to be sought as per the informal process set out in EHEGLA and if concerns are still not allayed then the formal process set out in section 437 is to be carried out. This system is already in place and does the job without intervening unnecessarily into private family life.

Obviously, we are concerned about the quality of education on the basics of reading, writing and numeracy, as the previous Minister and Government were, because many children — particularly those who are taken out of school and then put back in, to avoid fines and attendance orders — would be left in a very vulnerable situation.

But this is the concern of nobody except the family, unless the local authority is alerted to the situation in which case, the informal and formal inquiries address it adequately. The law correctly assumes that it is in parents' interests and motivation for their children to be educated.

Clause 2 will give various powers to the Secretary of State to make regulations by statutory instrument if necessary. I have tried to phrase this in a way that enables the Secretary of State to consult widely and issue guidance, as and when necessary. That is a fairly normal procedure, which I happen to think will be quite important in this area. Guidance relating to elective home education — covered by Clause 2 — is important because it requires that the updating of guidance by the Secretary of State must have regard to elective home education providing instruction in writing and numeracy, and take into account the child’s age, aptitude, ability and any special educational needs.

But the law and the guidance already does this.

That is because in the present situation, there is troubling evidence — I am afraid that I cannot put a number on it at this stage — that children are taken out of school because the parent feels, often rightly, that the required special educational needs are not being met by the local authority and that they can do a better job with the child out of school.

A common and valid reason for home educating. In fact, a parent's reason for home educating bears no relation to their ability to provide a suitable education and is therefore correctly seen as irrelevant.

Those parents need help.

This sweeping statement is pure guesswork. And why does Lord Soley seem to think that the parents in question are unable to source any help they may need? Some families need to be left alone by professionals while the children recover from the damage done to them in schools.

It is a matter of saying not that they have to put the child back into school, but that a child with special educational needs will need additional attention. The clause would give the Secretary of State the ability to offer guidance and, in Clause 2(2)(b), to take into account the views of children and parents.

EHC plans can still be put in placed for home educated children. Parents can and do negotiate for these, often with the help of their local authorites. Proposals to make this process easier for parents might be appreciated, but this does not require the compulsory registration (or certification) of every home educating family. To suggest it does is to raise a straw man argument. New guidance could require every local authority to supply deregistering parents with information about how to apply for an EHP plan and list the assistance available for them to do so, for example. The law does not need to be changed for this to happen.

As an aside related to that, we need to commission some research into this area. I hope the Government can do something about it fairly soon. We have no idea of numbers or, as I have indicated, how many children who were taken into home education have ended up in situations of abuse or being killed. Those figures should be available. I know that in the Welsh case, for example, it was stated in the court case afterwards, and it will have been stated in other cases where children have been killed, but it will also have been stated in cases where the police have been involved and the child had been put into situations where they had been radicalised or exposed to extremism. We ought to be able to get those figures. If the Minister does nothing else, I ask him to take that away in the near future and try to get some research done. It is very important.

The NSPCC produced some 'research', which we successfully refuted. I assume Lord Soley knows about this: it's very strange that he does not mention it.

The interpretation of the Bill is the usual straight-forward thing. Clause 4 goes on to say that it applies only to England and Wales. I stress that I have already drawn this to the attention of the Scottish education authority because I know it has a similar problem. I have looked at some of the numbers in Scotland. They too have a problem, but it is essentially an issue for the devolved Administration. I will forward it to them.

I've yet to see this English government referring to home education as a 'problem'. Perhaps Lord Soley imagines that his repetition of this word might make it seem more true.

What I want to do more than anything else is work with the Government and any other bodies concerned about this. I do not pretend that I have got the Bill exactly right. I want to make changes in Committee, but I would be very happy to make changes put ​forward by other people to achieve this end. At the very least we need registration, with some understanding of what is happening to these children who disappear. We cannot go on with the situation where we have thousands who disappear.

We do not have thousands of children who "disappear". We have thousands of children who are not registered with their local authorities as being home educated because they have not been deregistered from a school, or come to the local authority's attention as set out in sections 436A or 437 of the Education Act. They have not "disappeared": in terms of a home education register, they simply have not "appeared". If they were formerly known to a local authority they usually still are. If they are not known then no news is not bad news. If they are known and concerns are not acted upon, then this is the fault of local authority officers not properly using the powers available to them. All of this is clearly apparent in the NSPCC report of three years ago.

I hope the Government will work with me. I understand that the Minister is very new to his job and I want to be very cautious today, but I ask him to look at this very carefully. Several disasters have already happened and we know there are more in the pipeline.

I am yet to hear of one about which the authorities did not know, which compulsory registration (or certification) of home educators would have prevented.

It does not do anyone any good to turn a blind eye to this. It is time for us to act.

Nobody is turning a blind eye. There is no preventative action which could be taken that is not already allowed for in the current regulations on home education.

I therefore beg to move the Bill and I will work in co-operation with all who would like to do so.