Another year, another consultation

Every year or so, the Department for Education asks for our views on proposed changes to guidance on home education or legislation.

This blog is now in its 20th year.

Here is the current consulation. The deadline is in just a few days, on the 18th January. Here is a lot more advice about the consultation and how to respond. The following is my opinion about the draft guidance only.

I home educated all five of my children, the youngest of whom, at 16, now attends college. My first three children, now in their thirties, were deregistered from school at early ages and were therefore known to our local authority. My younger two were never enrolled in school so remained lawfully (and blissfully) "under the radar", even though I regularly attended policy liaison meetings with local authority officers in which I was quite open about what we were doing.

There was no advantage for us in being "known" - in fact, we found it was better to be "unknown", because we could focus exclusively on the children's education and wellbeing without having to routinely worry about what a local authority officer might think about that. The worry did nothing but distract me from giving my older children the fully bespoke education required both by legislation and my duty to them as their parent.

This is why home educators usually seek to minimise the presence of local authority education officers in their family lives: their presence detracts from, rather than enhances, their home education provision.

Home educators work hard to preserve their right and duty to put their children's education first, over and above official interference. (Securing suitable education for their children being a legal duty of parents, not of local authorities. And we cannot be expected to cause our children to receive a suitable education if we don't get to decide what that is.)

The 2007 guidance adequately reflected this position and gave us 12 happy years of minimal official interference. But of course, such freedom and trust in families always has its detractors and these people lobby the government incessantly for greater control. This resulted in the much more constrictive 2019 guidance under which we currently labour, with increasingly disastrous effects. So we always respond to the consultations.

Right. Without further ado, let's have a look at the proposed new guidance.

One of the first things to make me frown is footnote 4, on page 4.

"The general statutory scheme for the education of children, including but not limited to provisions such as ss. 13, 13A, 19, and 436A to 447 of the Education Act 1996, makes it clear that Parliament intends local authorities to take a leading role in ensuring that suitable education is available for all children of compulsory school age and that the parents of such children are making sure that their children receive such education"

For reasons given above, I do hope this isn't true. Local authority interventions usually have the effect of damaging provision, rather than ensuring its suitability. Government should be seeking to curtail the activities of such officers, not encouraging them, if suitable educational provision for all is really its aim.

"Where it is clear that parents are educating a child well at home, local authority contact may, in some cases, be brief. As a rule of thumb, we would expect local authority / parent contact to be at least annual.

This can't be made clear from annual contact. It is therefore pointless monitoring, designed to do nothing other than hassle parents and thereby curtail the practice of home educating.

"Whilst elective home education is not inherently a safeguarding matter, if it is evident that a child is not receiving suitable education at home and the use of school attendance powers is not achieving a change in that situation, the local authority should be ready to use its safeguarding powers, as explained in Chapter 8 of this guidance. The overriding objective in these cases is to ensure that the child’s development is protected from harm."

Oh, come on. If we're going to conflate safeguarding with quality of education, then let's first apply that principle to the vast number of children who are not fine in school and who are suffering actual damage as a result. If you think a child might be suffering (or likely to suffer) from significant harm, then bring a Section 47 case instead of routinely hounding home educators for the sake of it. Ah, but actual safeguarding laws contain legal thresholds, which must be met before action can be taken. So put your (our) money where your mouth is, or leave us alone please.

(After 35 years of parenting in England, I know it takes a brave parent of younger children to say that to local authority officers, but doesn't that just outline the inherent bullying within the system? Not conducive to happy, healthy family life.)

"1.2 Educating a child (or children) full-time at home is a rewarding but challenging task."

This is a sweeping statement containing unfounded assumptions. Some of us did not even see it as a task. Did the author of this draft home educate their own children? If so, then they are qualified to say whether they found it rewarding or challenging. Writers of government issued documents should at least try to stick to the facts.

The entirety of Section 1, "What home education is", which seeks to set out the various different types of home education provision, bizarrely neglects to mention the provision of home education... at home.

On section 2, "Reasons for home education": legally, our reasons are our own and should not make a difference to our treatment by local authorities. Section 7 of the Education Act does not stipulate that parents should give a reason for their educational choice. I'm not aware of any other section in law that requires this, either.

2.5 Parents’ EHE provision will reflect a diversity of approaches and interests. Some parents may wish to provide education in a formal and structured manner, following a traditional curriculum and using a fixed timetable which keeps to school hours and terms (e.g. homeschooling). Other parents may decide to make more informal provision which is responsive to the developing interests of their child (e.g., unschooling). One approach is not necessarily any more efficient or effective than another. Although some parents may welcome general advice and suggestions about resources, methods and materials, local authorities should not specify a curriculum or approach which parents must follow

This seems helpful on the face of it, but we'll wait to see where it goes. The definition of unschooling in the footnote:

"A form of home education that is led by the child and directed by their interests rather than following any set curriculum or programme of subjects"

- is not how some unschooling parents define it. Will they be held to this government guidance definition or some other, future one and have their chosen method curtailed?

The entirety of Section 3, on "Section 7 requirements", should only become relevant should a local authority officer suspect, under Section 437, that a child's educational provision might be unsuitable. Section 436a should not be used as a routine monitoring clause. A) Because that section of the law was never intended for that purpose; and B) because routine monitoring often damages provision.

(*I wrote the above, and might write much more before Thursday. But then someone linked to this Guardian article and its comments. I find it incredibly disheartening that so many people trust parents so little and experts so much, but also reassuring that some others managed to successfully rebut those views. The parallel debate on X is also interesting. The key argument for registration seems to be, "How can we know children are safe at home with their parents? We need professional oversight to make sure they are," with a general assumption that they probably are not. But firstly, what does that say about the human race? If parents in general are as inept, abusive and uncaring as these people seem to think, how has humanity survived this long? And secondly, people are posting in comments to report abuse in schools, suicide by school children and so on, none of which is addressed by the pro-regulators. The idea seems to be that as long as there is professional oversight, all is well. But occasional visits and spot checks can't ensure the safety of children, any more than full-time attendance at school can. Those who try to generalise and suggest that children are safer in schools, or with more official oversight, should check the statistics. But in general, we do have safeguarding laws in the UK, which apply to all children.*)

I actually like Section 4.3, though I would have liked it to have referenced different rates of learning.

"4.3 There are no specific legal requirements regarding the content of EHE, provided that the parents are meeting their duty in s.7 of the 1996 Act. This means that education does not need to include any particular subjects and does not need to have any reference to the National Curriculum; and there is no requirement to enter children for examinations. However, for education to be suitable, it should feature elements of literacy and numeracy, and the learning should be sufficient to equip the child for life in wider society. There is no obligation to follow the ‘school day’ or have holidays which mirror those observed by schools. Many home educating families do follow a clear academic structure and regular timetable, but it should not be assumed that a different approach, such as autonomous and self-directed learning which does not resemble conventional schooling and its patterns, is unsatisfactory or constitutes unsuitable education."

The rest of Section 4, on "Local authorities’ responsibilities for children who are, or appear to be, educated at home" is mostly a detailed and depressing statement on the official oversight of home educating families, the only exception being

- provide parents with a named contact who is familiar with EHE policy and practice and understands a range of pedagogies. This officer should organise relevant training on the law and the diversity of EHE methods for all officers who have contact with home-educating families

- as part of the recommendations to local authorities.

I've spoken with home education officers in post and salaried, who have told me they have never heard of unschooling or autonomous learning and who could not name one single book on the theory or practice of home education. I've lent them my books and scheduled future discussions with them on the subject. Unfortunately, home educators need to do this kind of work if we want our local towns to be safe places in which to home educate. Such freedom, like any other, can only be maintained with eternal vigilance and routine engagement on the policy liaison level.

On this point in section 5:

"5.1 Identification of children who have never attended school, and who may be home educated, forms a significant element of fulfilling an authority’s statutory duty under s.436A of the 1996 Act – to make arrangements to enable the authority to establish, so far as it is possible to do so, the identities of children in its area who are not receiving a suitable education.29 The duty applies in relation to children of compulsory school age who are not on a school roll, and who are not receiving a suitable education otherwise than at school (for example, at home, or in non-school based alternative provision). Until a local authority has established that a home-educated child is receiving a suitable education, then a child being educated at home is potentially in scope of this duty."

Argh. Some of us argued tooth and nail against this, for many years (see previous posts in this blog and elsewhere). The 2007 guidance agreed with us. Many local authorities agreed with us and acted accordingly. Our position was that Section 436A of the legislation should not be used to track down and monitor home education and was not intended for the purpose. Unfortunately, the loudest voices even within home education disagreed with us and the argument was therefore lost. I don't know how we can recover this hard fought-for ground and suspect it to be impossible. A great tragedy and, in my opinion, a major strategic error. But it was one that needed to be compounded in order to protect the reputations of some of those amongst us who make a profession of advising home educators, who got this badly wrong and refused to ever admit it until it was too late. This was after years of them apparently arrogantly refusing to listen and collaborate with the "old guard" who had, through careful research and discussion, developed a much deeper and more nuanced understanding of the law and how it evolves. Those people disagree with the 2007 interpretation of S436A, even though it served us so well for so long. They refuse to believe that many of us had local authorities who agreed with us, keeping local families safe from routine monitoring for 12 years, from the introduction of S436A into the legislation until we capitulated to the new guidance in 2019.

Section 5.2 of this draft guidance contains a threat:

"Parents informing their local authority of their child’s EHE would avoid children potentially being defined as CME unnecessarily.

It underlines what we are hearing now, from many families' experience with their local authorities. "Do it our way, or we class you as CME". It's blunt, brutal and encourages the kind of misuse I witnessed and set out in that post.

From section 5.4:

"Under s.10 of the Children Act 2004, local authorities should have arrangements in place to promote cooperation between the authority and its partners who deal with children. These arrangements should include information sharing protocols, and it is possible for these to allow sharing of data, on children who appear to be home educated, and about whom there is a concern as to the suitability of that education, which amounts to possible neglect causing significant harm."

This is a ridiculously convoluted justification for the kind of profitable data mining certain vested interests would like to exploit. The idea that substandard education amounts to neglect which could cause significant harm (significant harm being the threshold for a section 47 intervention) is only ever applied to home educated children and never to those in school. This hypocrisy alone reveals the inherent lie, which does not wash with most social workers, who are heroically struggling to deal with cases of actual abuse and neglect and must apportion their funds, time and energy accordingly.

And this, by the way, is how change is effected. Inch by inch, convoluted and questionable justification by convoluted and questionable justification. Those who are pushing for this kind of change would prefer us all to live in a surveillance, or totalitarian, state. Exactly the kind of state Baroness Hale famously cautioned against in her 2016 Supreme Court judgment: "The first thing that a totalitarian regime tries to do is to get at the children, to distance them from the subversive, varied influences of their families, and indoctrinate them in their rulers’ view of the world."

Section 6 starts well.

"6.1 As should be made clear throughout this guidance, most home educators will be providing a good education to their child. Therefore, we would expect most EHE provided by parents to appear suitable to the local authority."

It seems obvious, but probably still needs to be said.

Section 6.2 contains something far more problematic.

"This includes cases where the local authority does not yet know how the child is being educated (e.g. a new home educating parent) and cases where the local authority has been given information in the past but is carrying out its ongoing responsibility to check that the child’s education continues to be suitable."

I don't know of anywhere in legislation or case law that sets out an ongoing responsibility for local authorities to keep checking that the provision is suitable. Having checked and found it suitable once, why would it have to keep checking? If a parent has been found trustworthy and able to supply suitable education to her child, why assume, without good reason, that situation might have changed? This seems like unnecessary harrassment of families and a waste of public money. After you've checked twice, are they assumed to be okay? After six times? After ten times? Ever? This is the problem when we allow ourselves to be automatically mistrusted and supervised in our parenting, for no good reason. Where do we draw the line? (If anyone is still wondering why some of us fought so hard against the unhelpful 2019 interpretation of S436A, this is the reason. There is, now, nowhere to draw the line except in those elusive and elastic areas of reasonableness and proportionality. Oh, those are settled and established, are they? How well did that help you in Portsmouth, then?)

"A parent being able to demonstrate what education is taking place is usually the easiest way to establish whether suitable education is being received. This could include engagement with the child or seeing examples of work.

This is one of the points from which I struggle to proceed, because I'm tempted to set out all of the other obvious ways in which a parent could satisfy a local authority's concerns - when a local authority has no reported concerns about the education. So yes, you could jump through their hoops this way, or this way, or that way, but it all amounts to the same thing. Parents not being trusted by the state to comply with their legal and moral duty in respect to their beloved children.

"As part of a local authority’s ongoing engagement with parents to ensure education remains suitable, local authorities may wish to advise parents what would be useful to be shared at the next informal engagement to aid their ongoing judgement of suitability."

Did I just read that correctly? An ongoing judgment of suitability? Fellow parents, if we agree to this then we are agreeing to open the doors of our homes to local authority officers on a daily basis. Cameras and microphones in every room. Why must our home life be subjected to an "ongoing judgment of suitability"? What did we do to deserve this?

And this is just so funny.

"The Department is of the view that seeing the child can be an effective means to judge whether it appears that the child is not receiving suitable education."

What, pray tell, does a child who is not receiving a suitable education, look like? What does one who is receiving a suitable education look like? Is this draft guidance seriously trying to suggest that the mere sight of a child can determine this? It's just ridiculous.

Then we have Case Study 1, presenting approval by report submission as an exception to the norm following a bereavement:

"The following year, when asked for information on Saad’s education in relation to its suitability, due to a personal bereavement Aisha submits only a report to the local authority."

This actually is a good example of the ludicrousness of trying to pre-judge (the etymological root of prejudice) the suitability of the provision by annual monitoring, ending with the onerously authoritarian:

However, there is no guarantee that such an approach would continue to remain appropriate on an ongoing basis.

In Case Study 2, evidence of progress rears its head. This is an own goal home educators scored in the needless and damaging pursuit of a judicial review in Portsmouth, in 2021.

"While the local authority is content with the unschooling approach, knowing it is up to parents to decide how they want to teach their child, they deem the report as insufficient to be able to judge whether Alfie’s education appears to be suitable. This is because the local authority feel they have not seen evidence of the education taking place and the progress being made."

So now we have to jump through the hoop of proving, with evidence, as in a criminal court, that our children's education does not appear unsuitable. Our word is no longer enough. We must also, now, submit evidence like those accused of a crime. Since the Portsmouth case was lost, I have been advising home educating families to at least keep evidence of their child's learning progress even if they never use it, because it is now clear that this may be required to keep the child out of school and the parent out of court. The job of gathering, compiling and safely storing this evidence is onerous and it therefore takes some of the parent's time away from the child and his education: a double whammy hit for home educators and their children from that unfortunate case.

"7.6 In considering whether it is satisfied by the parent’s response to the preliminary notice, the authority will need to consider any other relevant information available to it – not only through its own contacts with the family, but also information provided by other agencies and other sources and the child’s former school (if any), as to the child’s circumstances and needs. The authority should make arrangements to gather and record as much information as possible from these alternative sources. Of course, the local authority should give reasonable weight to information provided by parents, on its own merits. For example, an authority should not dismiss information provided by parents simply because it is not in a particular form preferred by the authority (e.g., a report, when a meeting was requested). Whilst third party reports may be used to complement information provided by parents, such reports may not be accepted as definitive evidence of suitable education. The local authority may ask the parents to provide additional information but, if it is not satisfied that suitable education is being received and in the opinion of the local authority it is expedient that the child should attend school, they must serve a SAO, unless the time limit for the parents to provide information has not yet expired. Local authorities should not continue to request further information after that deadline has passed"

In other words, the local authority should carry on as if a murder has been committed and it is, in fact, a police department as well as being judge, jury and executioner. They must gather evidence from any and all quarters, taking nothing at face value and leaving no stone unturned in the pursuit of the objective truth. If I was a local authority education officer, I would be outraged (or merely wearily amused) to read that the government now expects this level of forensic assiduity from me - without, presumably, tripling my salary accordingly. As a parent of young adults, I just shake my head, bewildered at the complexity of the minefield even the most capable younger parents must now navigate in order to stay out of trouble with the authorities.

I shouldn't be surprised, given the slow but steady increase in temperature of the water pot this frog/blog has sat for the past 20 years.

But I am.

The latest threat

When I was parenting several younger children of compulsory education age, I felt highly motivated to focus on the various threats (usually coming from Government) to their freedom to learn in the way that was best for them. This motivation has naturally shifted, as my youngest child is now nearly 16 and won't be personally affected by the latest threat.

I remember, back in those younger days, feeling a mixture of gratitude and annoyance at the vocal presence of older, ex-home educators who seemed to want to run everything and control our responses as a community.

Sometimes they had views and took actions with which I disagreed, and to which I'd think, "How dare they think and do things that won't affect their children any more, but will affect mine?" It often felt like an affront, and needless to say, I won't be doing what they did (and in many cases, still do).

But I also mentioned gratitude, because without the old guard, how could we know what has gone before? How could we ever understand what brought us to the current situation, what works in terms of campaigning, and what doesn't?

I do plan to keep my finger on the pulse, to some extent and blogging occasionally about the repeating patterns I can identify. I'm always open to questions, and being asked for advice - which does happen, sometimes. I do not plan to spend the hundreds of hours on each new bill, every new threat, from now on. I don't have the time, any more. My priorities are naturally shifting towards life after home ed and yes, it turns out there is such a thing, even though it's now thirty years since I first deregistered a child from school.

I look at the situation now and I see a very busy and vibrant national home ed community, full of people who rightly feel directly threatened by the latest, outrageous challenge, possibly the most seismic one to freedom in education since Badman. Full of people who are primed and ready to take action, and who are doing exactly that. And who can blame them?

The current Schools Bill (specifically, clause 48) sets out a new duty for local authorities to maintain a compulsory register for children not in school. There are lots of reasons why this is a bad idea, ably and clearly set out on the excellent Suitable Education website:

• It contravenes Article 8 of the Human Rights Act
• There's a very real risk in the holding and sharing of children's personal and private data
• It's the top of a slippery downward slope, the first stage in a plan to roll out a whole raft of changes.

I strongly recommend a read of the rest of that article at Suitable Education, in which the author highlights the key points, that home educated children are not "missing", home ed isn't a safeguarding risk, the state failing in its duty to make free educational provision, but the responsibility to ensure the provision, either at school or otherwise, being that of the parent, not the state, the negative impacts of monitoring and accountability measures and the vital importance of parental choice.

I want to finish this post (there will be more, it isn't my last) by briefly explaining my own personal experience of home educating, both on and off a register. My older three (now adults, all in their thirties) were known to the local authority, because they were deregistered from school. This did damage, to some degree, the provision they received, because keeping an eye on what the local authority might think, however small an eye, does detract from the focus on what the parent sees and hears that each individual child needs.

My younger two children have never been known to the local authority. One is beyond the age of compulsory education now and the other soon will be. This has meant I've been completely free to meet their educational needs, exactly when and how they've emerged, without having to worry about the judgment of a local authority officer. I think they've had a better education than the older three, purely because of this. It's made such a difference, and I feel sad to think that this option is now fast disappearing.

In the vast majority of cases, parents do know best and putting no trust in the parent-child bond of love, observation, knowledge and the instinctively vested interest of wanting one's offspring to thrive, is both inhuman and injurious. So, why would the state want to do this? I have a few ideas, mostly to do with expanding markets and its necessary focus on the economy. Big data means big business, now.

The keenest personal interest

There is a hierarchy of people whose livelihoods are based on our children. At the bottom are teachers, social workers and local authority officials. Further up are the businesses who run academies, tuition packages and other learning initiatives. Organisations like Ofsted contribute to the structure of this hierarchy and at its very pinnacle sits Anne Longfield, the Children's Commissioner, whose office produced a report last year calling for a compulsory register for home educators.

Last month, she told the House of Commons Select Committee for Education, that the government had agreed.

We don't know whether to believe this, but to call it a register is disingenuous. What's been proposed over and over again since the 2009 Badman Review isn't a register even though it's called one, but is an annual licensing scheme. Home educators would have to apply every year to be allowed to home educate, supplying evidence to support their case. The local authority would have the annual power to grant, deny or rescind their permission and therefore the parents' legal right to home educate their children.

This licensing scheme has been repeatedly called for but always denied because it contravenes Section 7 of the Education Act, which places the responsibility on parents and not on local authorities to ensure that children are in receipt of a suitable, full-time education.

Now the Select Committee, no doubt under pressure from the Children's Commissioner and others, has issued a Call for Evidence about home education, which closes this Friday 6th November 2020. I've just been reading some of the submissions from home educating individuals and groups and they make the case very well for the position to be left unchanged - improved, in fact, in terms of exam access and fair treatment from local authority officials who often seem to want to extend their own remits and take damagingly intrusive actions into our personal lives and those of our children.

From the questions being asked, the agenda is again clear.

The hierarchy of people I mentioned in my first sentence wants more power over our children and families, and since we are governed by consent, it would like us to agree to this. Many of our interactions with the hierarchy are positive on balance, but nevertheless there are quite enough checks and balances already.

Despite the current concerns that the numbers of parents deregistering their children from schools are soaring and threats in a Department for Education blog that social workers will be involved ("where appropriate") in any decision to deregister, the legal position remains unchanged and was expertly set out by Lord Adonis in his 2006 explanation of the 'fourfold foundation', which includes the words: "First, it recognises that the party with the keenest personal interest in securing the best available education for a child ordinarily is, or ought to be, the parent of the child."

The keenest personal interest. Not a philosophical ideology, a need to save or change the world or to further one's own career, but the keenest personal interest. In this country we acknowledge that this person is usually the parent, not the government, local authority or any other paid service provider.

With this in mind, here is my answer to the points raised by the Select Committee's inquiry.

The Committee invites written submissions addressing any or all of the following points:

• The duties of local authorities with regards to home education, including safeguarding and assuring the quality of home education;

Section 437 of the Education Act sets out local authorities' duties in regard to home education. It's not within their remit or their power either legally, morally or practically to assure the quality of home education, but that of parents. Local authorities should only take action where it appears that the education is not suitable. Similarly with safeguarding, the local authority should take action only when is has "reasonable cause to suspect that a child who lives, or is found, in their area is suffering, or is likely to suffer, significant harm" [Section 47, Children Act].

• whether a statutory register of home-educated children is required;

Statutory registers should only be used for criminals and certain professionals, both of whom require government oversight. Singling out a group of children to populate such a register purely on the basis of their parents' educational choices would be an unnecessarily stigmatising and draconian policy.

• the benefits children gain from home education, and the potential disadvantages they may face;

The benefits are similar to other kinds of education. Children learn and make progress towards goals of achievement. The key disadvantage is that their parents are invited and feel compelled to submit responses to a near constant, stressful barrage of reviews, consultations and inquiries from Westminster.

• the quality and accessibility of support (including financial support) available for home educators and their children, including those with special educational needs, disabilities, mental health issues, or caring responsibilities, and those making the transition to further and higher education;

We don't have, want or need any extra support that's not available to other families.

• whether the current regulatory framework is sufficient to ensure that the wellbeing and academic achievement of home educated children is safeguarded, including where they may attend unregistered schools, have been formally excluded from school, or have been subject to ‘off-rolling’;

The wording of Section 437 of the Education Act "If it appears to a local authority that a child of compulsory school age in their area is not receiving suitable education, either by regular attendance at school or otherwise, they shall serve a notice in writing on the parent requiring him to satisfy them within the period specified in the notice that the child is receiving such education," is sufficient regulatory framework. Unregistered schools, exclusions and off-rolling should be addressed with the educational establishments in question, not home educators.

• the role that inspection should play in future regulation of home education;

Taxes are spent on school inspections to inform the taxpayers on their investment. Taxpayers do not invest in home education so no such inspections are required.

• what improvements have been made to support home educators since the 2010-15 Education Committee published their report on ‘Support for Home Education’ in 2012; and

Very few it seems, and yet we are being asked to justify our perfectly legitimate educational choices again by the same body.

• the impact COVID-19 has had on home educated children, and what additional measures might need to be taken in order to mitigate any negative impacts.’

My understanding is that COVID-19 is not a government-induced infection, so it is difficult to see how its effects can be mitigated by government.

Consultation on Registration: my reaction and response. Closes 24th June.

Such has been my dismay about the new government guidance for local authorities - and parents! - on home education, I haven't even looked at the consultation on registration yet. Thousands of us responded to last year's consultation on that guidance and were summarily ignored which has the effect of making us feel despondent, to say the least, about bothering to even read this year's set of questions, let alone make the effort of responding to them. We are busy people. We need to be left alone to home educate our children under the current, perfectly sensible law and not to keep being badgered by time-consuming efforts to tweak it.

So what is the point in answering it? Carlotta puts it very well here:

Not responding isn't a protest vote. The DfE won't give a jot if you don't say anything and indeed will probably be rubbing their hands in glee, thinking home educators have finally been worn out by this protracted war of attrition. But we aren't worn out because we can't afford to be, and because, if anything, the situation in LAs has got worse. Fighting for the rights for families to remain as autonomous as possible has got all the more urgent.

I think she's right. Last year might well have been a process of wearing us down for the big question that's now in front of us. Should home educators be forced to join a register? It doesn't look like a big question, because a register is just a list of names, right? Not always. The proposed legislation resulting from the Badman Review twisted it into an annual licencing scheme with strict conditions attached, membership for which we would have been made to reapply every year. It would not be too difficult to morph this new register into an annual licencing scheme even if it doesn't start out as one, and Badman clearly demonstrated that there is an appetite for it in some quarters.

It's suspicious that the government thinks it even needs a register of home educators, if it's only a list of names and addresses. Most home educators have deregistered from school so will be already on the local authority books and the rest come to its notice sooner or later as a result of Section 436A. This will be even more the case under the new guidance, section 4 of which insists that unregistered families be hunted down by local authorities using whatever means are possible. So why the need to force parents to register too, unless it is to turn it into a licencing scheme?

Onto the consultation itself then. My children love watching reaction videos on YouTube, but of course their old mother is about fifteen years behind the times, so this is my reaction blog. I could do a video to go with it, but it would mostly consist of me rolling my eyes.

The survey may appear lengthy from the number of pages it contains.

Yep, 31 pages. I'm putting aside a whole day for this and it might take longer, we'll see. How do they expect people with younger children than mine to manage it?

This structure means that the number of questions put to each respondent is only just over half of the total in the overall survey form.

That is something I guess. Let's time it. It's 10.45 now, but bear in mind I'm writing this blog alongside my responses, as well as stopping for breaks, being interrupted by children needing, you know, parenting, and so on.

The first page is about who I am, etc. I know you can fill it in anonymously, but I'm using my name and not going for the confidentiality option, in case anyone wants to compare our responses to the eventual outcome. "Continue.."

7. Do you agree that local authorities should be obliged to maintain a register of children who are not registered at specified schools (those listed at paragraph 2.2 of the consultation paper) or being educated under s.19 arrangements?

No I don't, for the reasons I've given above. "Continue.."

20. Why do you not support the concept of a duty on each LA to maintain a register?

I've answered: "Because it is unnecessary. Section 436A of the Education Act already requires them to find such children, check their status and keep the information."

21. Should such a register specify whether children are attending an educational setting (other than their own home) during school hours? Add comments if you wish

This is when I start sighing in frustration, because I've already said that I don't want such a register. This question tells me that we're getting one anyway, in which case, why bother asking me whether I want one? I've said that in my answer: "NO. Because I don't want such a register in the first place. This question tells me that we're getting one anyway, in which case, why bother asking me whether I want one?" If they're going to waste our time like this, we might as well use it as an opportunity to really speak our minds. It might have some therapeutic value, if nothing else!

22. Should the register be widened still further to also include children who are being educated under s.19 arrangements? Add comments if you wish

This is students in Pupil Referral Units etc, the ones who used to be referred to as EOTAS (Educated Other Than At School). "Each local authority shall make arrangements for the provision of suitable education at school or otherwise than at school for those children of compulsory school age who, by reason of illness, exclusion from school or otherwise, may not for any period receive suitable education unless such arrangements are made for them." - Section 19. So the local authority already knows about these children, as it is the one making the arrangements for their education. I smell a trap here, because of course it seems reasonable that such children need tabs keeping on them... so we need a register for them, right? No, because there already is one. It's looking more and more like a cover for Badman #2.

I've said: "NO. Since local authorities make the arrangements for this provision, they already know about such children. A further register is therefore unnecessary."

23. Should the register include flexi-schooled children (ie those who are educated at home or elsewhere for some of the week during school hours but are also on the admission register of a state-funded or registered independent school)? Add comments if you wish

This is ridiculous. I've already said I don't want a register and flexischooled kids are already on the school one! How could another compulsory list of names help them in any way whatsoever? Unless it's not intended to be only a list of names...

My answer: "NO. Flexischooled children are on the school register, therefore are known about by authorities already."

24. What information as a minimum do you think the register should contain about each child? Check as many as required

My answer: "No information, because there should be no other register than already exists, which is sufficient. These questions make it sound as if the new-style register is already fait accomplis, so why bother asking us whether we want it or not?"

25. Do you think DfE should prescribe a national format for the register? Add comments if you wish

My answer: "NO. DfE should instead do a far better job of explaining why it thinks this completely unnecessary register should be mandated, and also of distancing itself from the Labour-commissioned Badman recommendations of ten years ago." It's a waste of typing energy, but it makes me feel better to say it. The thing is, as Carlotta said, if we don't respond they will take that as our tacit agreement with the whole thing.

26. Do you believe that local authorities should share information from their register with other local authorities and other agencies? Add comments if you wish

My answer: "NO. They are already allowed to share sufficient information to fulfil their duties. Any more than that would risk breaching case law on data protection. Please see case 2016 UKSC 51." This is the 2016 Supreme Court case against the Scottish government for breaching Data Protection Act with its Named Person scheme. The judges' ruling, which found against the government, applies throughout the UK.

27. Do you think that a local authority should include any information about a child on its register which has been legally obtained from other agencies? Add comments if you wish

My answer: "NO. There should be no register. Case 2016 UKSC 51 has to be complied with." Ending a sentence with a preposition. I must be annoyed! I'm certainly not in the mood to give them any more words than necessary in my response to this chicanery.

28. Do you agree that a register held by a local authority should be open to inspection by other bodies as prescribed by the Secretary of State, in order to check whether the local authority is carrying out its obligations to maintain the register? Add comments if you wish

Bodies. That's an interesting term, isn't it? For all we know, it could be anyone! Why would we want to allow our children's details to be unnecessarily shared around? I don't even know who the next Secretaries of State will be, let alone whether I trust their judgement. My answer is the same again: "NO. There should be no register. Case 2016 UKSC 51 has to be complied with." It protects us from the kind of data infractions that could risk our children's safety. I'm not going to say the words 'judicial review', but my implication should be clear. If anyone other than a machine reads it, which they might well not if the last consultation is anything to go by. ("Because of the quantity of responses received, the department contracted York Consulting LLP to undertake an analysis of the responses to the call for evidence using automated textual analysis.")

29. Do you agree that local authorities should have to make annual returns of collated data from the register to DfE for statistical purposes? Add comments if you wish

I don't imagine the statistics would be used in our favour. We are being moved into a system of being managed from above, and I do not consent. My answer is almost exactly that: "NO. We are being moved into a system of unnecessary and potentially damaging intervention in our children's educational provision, and I do not consent to the proposed changes."

The next question is for local authorities only, about costings. The one after that...

31. Do you have any other comments on either the principle of registration or practical issues related to registration on the basis proposed?

I'm not sure that I do. I've emphasised that the system already does what they claim this new one will do, so the change is unnecessary. I've mentioned data protection and the supreme court case. I guess I'll add them both again for good measure, in case the responses are analysed on a question by question basis. "Registration already exists in the form of Section 436A of the Education Act and does not need therefore to be imposed. These proposals are completely unnecessary and draconian. Regarding data protection, the Supreme Court judges' ruling in case 2016 UKSC 51 is legally binding for the governments in both Westminster and Scotland." "Continue.."

My shoulders are burning now, and I'm feeling the need to take deep breaths. I'm starting to identify with Hitchhiker's Arthur Dent, lying down in front of the bulldozer that's been sent to demolish his house. In fact, he was lucky he had a physical bulldozer to lie down in front of. We have no such thing: our bulldozer is made of electronic words, gathering darkly in the ether, equally menacingly slowly. I'm going to take a break to fill the dishwasher.

32. Do you agree that parents should be under a legal duty to provide information to their local authority about a child who is within scope of the proposed registration requirement?

"NO." A thousand times no. "Continue.."

We don't get to see the five questions that are asked of the people who think there should be such a duty, let alone contribute any responses to them. Instead, we are taken straight to this:

38. If a duty on parents was created what data should parents have to provide about their child? Check as many as required.

At least there's an "if" here. And I know we don't have to answer these questions - in fact, it's perfectly ok to just go through it ticking 'no' to everything and finish the job in ten minutes or so. But I have ticked 'Other information' to ensure my answer is processed, and responded: "No data should have to be shared. Case law (Phillips v Brown: QBD 20 Jun 1980) says that parents would be sensible to provide information on request by the local authority because its absence could lead to a school attendance order. No further mandation is necessary. Regarding data protection, the Supreme Court judges' ruling in case 2016 UKSC 51 is legally binding for English authorities."

39. Do you agree that there should be a consequence for parents for failing to register details of a child for the purposes of registration?

I'm obviously answering NO to that. There's no box for comments.

40. Whether or not your response to (3) was ‘yes’, do you think that the most effective consequence for non-compliance with the registration process is that it authorises the local authority to begin the school attendance order process by serving a s.437(1) notice on the parents, which begins the formal process of considering suitability of education and whether a child should attend school?

What? Where is question 3? Back to administrative school for you, Secretary of State. Let's assume they mean question 39, shall we? Yes, my eyes are rolling. Oh, now what? Do I think the most effective consequence for non-compliance with the registration process is that we get an SAO for it? Such convoluted phrasing, it could mean any number of things really. I'm answering NO, and there's no box for comments luckily for them.

41. Whether or not you favour any consequences of non-compliance, what alternatives to initiation of the SAO process would you prefer as an effective way of securing compliance?

My answer: "First you ask if I want a compulsory register. I answer no. Then you ask (I think... the question is so convoluted I cannot be sure) whether I think parents should be threatened with an SAO for not registering. I answer no. NOW you ask, what other sanctions for not applying to join this register with whose existence I do not agree should you impose? The answer is NONE. There should be no sanctions and there should be no new register."

42. Do you have any other comments about the concept of a legal duty on parents to supply information for the purposes of the proposed register?

My answer: "The proposed register is completely unnecessary. There should be no such legal duty on parents. Section 436A and case law (Phillips v Brown: QBD 20 Jun 1980) render the whole thing superfluous and redundant." Continue..

43. Do you agree with the general approach that the proprietors of settings providing education in school hours - other than specified types of school - should be under a duty to supply information to local authorities about any child in scope of the proposed register?

There's no scope to comment, so I'm just going to put NO. If we say 'yes' to any of these pre-decided outcomes, we're asking for the whole thing like turkeys voting for Christmas, aren't we? Continue..

Again there are six questions that we can't see because we answered NO to the last one, and instead we are taken straight to...

49. Which settings do you think should be included in the scope of the duty? Alternative provision settings (part-time), Unregistered independent schools, Yeshivas and other full-time settings not requiring registration, Home education groups not requiring registration, Other settings providing education during school hours, Other (add comments if wished)

I'm ticking 'other', so that my response is processed as an answer, and saying: "No settings should be included. There should be no such duty."

50. Which information should proprietors of the settings in scope be required to supply on request to the local authority about a child in scope of the registration requirement? Check as many as required. Name of child, Address of child, Date of birth of child, Other (add comments if wished)

Again, I'm ticking 'other' and responding: "No information should be required because there should be no such duty BUT in regard to data protection, please note that the Supreme Court judges' ruling in case 2016 UKSC 51 is legally binding for English authorities."

51. Do you agree that there should be a sanction on the proprietor for non-compliance with a duty to supply information about a child in scope of the registration requirement?

NO, but from the phrasing of this question, DfE does.

52. Regardless of your answer to the previous question, which type of sanction do you think would be most effective? Fine, Court order requiring release of information, Other (add comment if wished)

I think the sanction should be a sentence of Death by Government Consultation. Oh wait no, we have that already. I am ticking 'other' and writing: "There should be no sanction because there should be no duty because there should be no new register," and trying not to poke my own eyes out. Are we there yet?

53. Do you have any other comments about the concept or details of a duty on the proprietors of settings to provide information about children who attend their setting and fall within scope of the registration requirement?

I think I've lost patience with this now. My answer is this: "Your ideas about settings make no sense. They're completely illogical. Anne Milton recently said:

'​The purpose of the proposed register is to enable local authorities to track the main daytime weekday educational settings for children in scope, and to take action if it appears that a suitable education is not being received in usual school hours. This purpose would not be served by bringing into coverage the register activities carried on in places or at times not relevant to determining suitability, or by including places which are simply hosting educational visits rather than providing tuition and it is not our intention to do so.' (HC Deb, 13 June 2019, cW)

And yet, your new guidance on home education for local authorities says: "9.8 .... However, in home education there is often continual one-to-one contact; education may take place outside normal ‘school hours’ and term time, and the type of educational activity can be varied and flexible. "

Please make your minds up. Do you think all of our education happens in school hours, or not? For your information in my family it does not - it sometimes happens in the evenings and at weekends. Please get your act together if you're going to bring in changes that will significantly affect all of our lives." Continue..

54. Do you agree that there should be a statutory duty on local authorities to provide support on request to parents who educate children at home, of a type to be prescribed by the Secretary of State in regulations?

Of course not, because of the old saying: he who pays the piper calls the tune. There's no box for me to say that in though, so I just have to tick NO and "Continue.."

63. If such a duty was to be created which of the following should it encompass? Check as many as required: Advice, Assistance with exam fees, Support for home education groups, Discounted admissions, Checks on private tutors, Newsletters for home educators, Arranging participation in school activity programmes, Other (add comments if wished)

I'm ticking 'other' so that my response is processed, and in the box I'm writing: "There should be no statutory duty to support, even on request, because it could lead to unnecessary and damaging interventions. Local authorities often provide such help on a voluntary basis and if left to their own devices, would continue to do so."

64. What are the potential difficulties, apart from availability of resources, in ensuring that such a duty is properly discharged by a local authority?

"They are immense and probably insurmountable, which is another reason why this should not be attempted. Its regulation would be unnecessarily complex. The whole idea is unnecessary."

65. Should the duty to provide support on request be limited to children whose details are included on the proposed register?

There's no room for comment here, just yes/no, and I can't actually answer it. If I say yes, I'm agreeing with the register, which I don't. If I say no, I'm agreeing with the register, which I don't. Do you notice the way they always refer to the register in the present tense, not the future tense? For them, it looks like a done deal. I am wasting a whole day responding to questions about something that has already been decided on, just so that they can say they consulted and I can say I responded.

66. Should other mechanisms be explored for enhancing access to public examinations for children educated at home, and if so, what? Examination body operated centres, Duty on schools and colleges to allow private candidates, Other (add comment if wished)

I'm ticking 'other', so that my response is processed. My answer: "No such mechanisms should be explored. Home educators opt out of the state system so have to pay for their children's exams." I know it's expensive and we don't like having to pay for it, but it's the only way of keeping the intervening wolves at bay.

Question 67 is for local authorities only, about costings again. Then we have...

68. Do you have any further comments on the issue of local authority support for home-educating families?

So I'm answering: "Local authorities sometimes choose to offer support on request but this should not be mandated because it would muddy the boundary between parental and state responsibility for the education as set out in Section 7."

69. Do you consider that support for home-educating parents should be provided by the Department for Education?

NO! Certainly not if this consultation is anything to go by! Sadly there is no box in which I can tell them this.

70. Regardless of your answer to the preceding question, which forms of support do you think particularly suited to delivery on a national rather than local basis? Check as many as required: General advice to parents on home education, Financial assistance for exam fees, Other (add comment if wished)

Again - and maybe for the last time! - I am ticking 'other' so that my response is processed. My answer is: "National government should not be involved in home education at all. There is nothing in law to connect the two, except through local authorities. The current system works. All of the necessary safety nets are in place and the existing registers all function adequately. National government should ensure that there are enough schools to suit all of the children whose parents want them to attend so that everyone who home educates is making a real, actual choice instead of feeling forced into it." Continue..

71. Do you have any comments on the conclusions set out in the published equalities log, UNCRC analysis and family test?

Oh what, do I have to read those? I am already FIVE HOURS into this process. Right. The equalities log is here...... and the first thing that catches my eye is this:

Although there is no quantitative evidence available to evidence this...

- which on its own demonstrates the need for us to check the rest of this thing. I'm not a member of any of the listed races or faiths but if I was, I'd be annoyed at the implication that just because I was, I therefore needed the local authority to ensure my child received a suitable education. It's an astounding level of prejudice and I have answered, to begin with: "In the equalities log you imply that people of certain races and faiths need local authority intervention to ensure their home education is suitable, just because of their race or faith. This strikes me as being inordinately prejudiced in itself."

Next? The UNCRC analysis. I've added comments on three elements of this, as follows:

"In the UNCRC analysis, you mistakenly assert that "There would be no direct impact on the children concerned from the registration process." But good provision can be damaged by the stress of unnecessary intervention, a fact that you repeatedly ignore because it does not fit your apparent plans. This is why the law works best as it is, with Section 436A on the one hand and Section 437 on the other. Annual requirements to apply to be on a register will cause time-consuming stress and damaging unnecessary educational interventions.

Again, from the UNCRC analysis: "However, some home educators believe that the views of children on home education are not significant compared with parental rights to determine the mode of education. " There was no need to add this snide comment, was there? It is not even pertinent to the question.

Ibid: "By seeking to ensure that children who are educated at home or outside mainstream schooling are more likely to receive a suitable education, it promotes implementation - or at worst, does not obstruct it."

Too hasty 'seeking to ensure' DOES risk obstructing that very thing, which is why Section 437 is wisely phrased the way it is."

And onto the family test.. Wow, this is bad. My response to it is as follows:

"How is...

"If a single parent educates a child at home or arranges education outside mainstream schools then forming a dual-parent family might help that to continue, in economic terms at least."

- remotely relevant to your proposed policy?

"If the proposals lead to fewer children being educated at home or under alternative arrangements outside mainstream schools, these burdens, and impact they have on transitions which add to stress, would be lessened for some families."

This gives the impression that your real agenda is to seek to reduce the numbers of children being educated at home. This kind of thing does nothing to persuade us that you really want to help us.

"Although there would be a small compliance cost for families with registration..."

You are going to CHARGE us for this 'service' we do not want or need??????!!!! Unbelievable.

"If the proposals lead to fewer children being educated at home or under alternative arrangements outside mainstream schools this might reduce the financial burden on the families if such provision ceases, and lessen the likelihood that one parent will need to work excessive hours to meet that financial burden. This could improve that parent’s access to the children."

As above, this looks like the real agenda. Was this engineered by someone who disapproves of home education, then? If so, they were not the right person for the job, if anyone was.

"Some children who are home educated are in reality also carers for parents or other siblings."

I'm guessing you have no evidence with which to.. _evidence_ this. If so, we are yet to see it.

"Some families suffer financial strain because of undertaking home education; if the proposals result in fewer children being educated at home, the incidence of this will be reduced and that might lessen the likelihood of separation."

That's the third time you have referred to the reduction in our numbers as being a beneficial thing. How can we expect or hope for any real support from you then, except to help us to register our children at a school?"

72. Do you have any other comments on the government’s proposals for legislation relating to registration, and support for home education?

I certainly do. They are as follows: "The real agenda is laid bare in the family test. Whoever wrote it does not want home education to be supported: quite the contrary. That person wants our numbers to be reduced and sees this as the desirable outcome. The attempt to frame this in terms of helpful support for home educators must therefore be a lie or at best, the spoonful of sugar to make the medicine go down. Most home educators do not want or need your medicine and will not swallow it just because it's sugar coated. As parents our job (under Section 7 of the Education Act) is to protect our children's individually tailored provision from people who would - accidentally or deliberately - damage it. According to the family test, this group of people now appears to also include the DfE." Continue..

And finally......... a whopping six hours later...... I am finished. Submit response

In all honesty, I don't recommend anyone else devoting six hours to this, or anything like it. Who has the time? I don't really, and various other things I should have been doing today have gone undone. But given the likelihood that this completely unnecessary register will undoubtedly morph into an annual licencing scheme, I think as many of us as possible should try to respond, if only to say

NO.

New guidance and consultation on registration

The Department for Education has this morning published:

• new guidance for local authorities and parents;
• a response to last year's consultation; and
• a fresh consultation on compulsory registration with a closing date of 24th June.

I've only had chance to skim-read it all so far, but my initial thoughts are as follows:

1. The new guidance incorporates some of the more worrying elements of last year's draft and is really only a slightly mitigated version of the draft. In reality this will lead to few changes for home educators who live under the more reasonable local authorities and probably more hassle for all of the others - in the short term. See my next point for expectations over the longer term!
2. Compulsory registration, even though it is supposed to "function only as a list" and "not change LAs' powers" will, I fear, be ratcheted up in a period of years back to the kind of licensing scheme proposed by Graham Badman ten years ago. The consultation document already talks about allowing for "changes in the scheme in the light of experience".
3. The guidance (active from today onwards) sets out the ultimate threat of Care Orders we saw in last year's draft, which is unnecessarily draconian, authoritarian and traumatising. The kind of mentality that deems this kind of harsh treatment of families to be in any way appropriate is beyond my understanding.

I feel saddened by this turn of events, for home educating families thoughout England who will be affected by it and for my own family. It's depressing to think that my children will probably not be able to offer their children the same kind of wonderful childhood of exploration and adventure that they themselves have enjoyed. Being able to help them follow their interests and nurture their curiosity has been an absolute joy and a privilege and one that I would wish for any other parent who wanted it, in the absence of this government-prescribed mistrust and interference from officials.

What can we do now?

Personally I'm not in a mad rush to do anything, because experience teaches me that such events need time to be assimilated and processed through my mind and also through our on- and off-line communities and groups. We have three months to reply to the consultation, but I hope as many home educators and their friends, families and supporters as possible respond to say we don't want a compulsory register. The new guidance needs to be taken apart to see if the worst parts of it can still be challenged and many conversations and meetings will take place in the next few weeks as we try to work everything out and adapt as best as we can to the new situation.

Section 436A again

Much of the draft guidance currently open to consultation is based on a misinterpretation of Section 436A of the Education Act. Without this misinterpretation, which runs throughout the draft, the pre-emptive checking of provision and invasive, problematic ongoing monitoring could not be encouraged. It is not encouraged in the current Guidelines for Local Authorities, as they do not misinterpret Section 436A in this way.

Section 436A instructs local authorities to find children who are missing education. It is not intended to instruct local authorities to check the provision of all home educators, whose children are plainly not missing education. The statutory guidance it spawns does not instruct officers to check the provision of home educated families under this section, and it never has. In fact, the original version of this guidance included this paragraph on the subject:

"If it becomes known that a child identified as not receiving education is being home educated, this should be recorded on the local authority’s database and no further action should be taken unless there is cause for concern about the child’s safety and welfare."

In 2011, Ian Dowty QC was asked to advise Lancashire home educators who were opposing new local policy based on Section 436A being misinterpreted in the same way as this new national draft guidance. His advice included the following:

It seems to me that Lancashire is attempting to put in place an assessment system which is based upon a misinterpretation of s436A and the statutory guidance issued on it so that they create a different regime for a child that they decide is “missing education”. In assessing this, it would appear that Lancashire believes it can insist on using greater powers than the law in fact permits to them.

The rest of his advice is very relevant to the issue we're facing in the current national consultation and is well worth reading, because it explains far better than I did the relationship between sections 436A and 437 of the Education Act.

This misinterpretation of 436A is the most important element of the draft guidance. If we let it go without properly challenging it, we will be set back 12 years politically, to the time before the current guidance was published, and that would only be the start of a series of changes that would lead straight back to where the draft currently wants to go and further. It should therefore be the key focus of our objections to the new draft, because anything else is effectively fiddling around the edges. We do not need to roll over on it; we are in a strong position.

Sections 436A and 437

Section 7 of the Education Act, as we all know, tells us it is the:

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

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.

And if it looks like we might not be doing this, Section 437 tells local authorities:

(1) If it appears to a local education authority that a child of compulsory school age in their area is not receiving suitable education, either by regular attendance at school or otherwise, they shall serve a notice in writing on the parent requiring him to satisfy them within the period specified in the notice that the child is receiving such education.

(2) That period shall not be less than 15 days beginning with the day on which the notice is served.

(3) If—

(a) a parent on whom a notice has been served under subsection (1) fails to satisfy the local education authority, within the period specified in the notice, that the child is receiving suitable education, and

(b) in the opinion of the authority it is expedient that the child should attend school,

the authority shall serve on the parent an order (referred to in this Act as a “school attendance order”), in such form as may be prescribed, requiring him to cause the child to become a registered pupil at a school named in the order.

Section 437 works perfectly well to ensure that our Section 7 duty as parents is carried out while at the same time protecting our Article 8 right to respect for our private and family life, home and correspondence. Crucially, it enables us as parents to decide how Section 7 applies for our own individual children, for each of whom 'suitable' means something different, which is best known to ourselves who live with them and have known them for all of their lives. Section 437 does this very carefully, by ensuring that the local authority's role in 'otherwise' education remains non-intrusive until and unless something makes them think the education might not be suitable.

So how (wail some local authorities) can we know that there is an appearance that education might not look suitable unless we can check everyone's education all of the time?

The answer is that there are many ways in which such an appearance can and does often arise. Police or social work reports being the main two serious sources of concerns. If a family is seriously struggling with living in a reasonable healthy and law abiding way then this would be a good reason to doubt the educational provision and get it checked. Anyone else who is worried about a child's educational provision is at liberty to raise a concern with the local authority who would then approach the family for information about the provision to check that it looked suitable. (Note that this information only needs to be such as would convince a reasonable person - i.e. not an education professional - on the balance of probabilities, because if it went to court it would be a civil and not a criminal "beyond all reasonable doubt" case.)

In 2006, Section 436A was introduced via the Education and Skills Act:

Children not receiving suitable education

436A Duty to make arrangements to identify children not receiving education

(1) A local education authority must make arrangements to enable them to establish (so far as it is possible to do so) the identities of children in their area who are of compulsory school age but—

(a) are not registered pupils at a school, and

(b) are not receiving suitable education otherwise than at a school.

(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.”

At the time, only the heads of the main home education organisations were consulted by government so this section reached the statute books without any of the rest of us being warned or given the chance to protest. The people who were informed were told that Section 436A was not intended to target home education.

Here is Jane Lowe, of the Home Education Advisory Service, giving evidence to the Commons Select Committee on Education on the 5th September 2012:

"The two sets of guidance...

(She means the Children Missing Education guidance which explains Section 436A to local authorities - and which still gives no instruction to check home education provision for suitability - and the Elective Home Education Guidelines for Local Authorities)

... were originally conceived to do two different things. I was involved with discussions when the first draft of that was made, of the Children Missing Education guidance, and the civil servants who we were dealing with assured us that this was not something which was being designed to entrap home educators. They assured us that the whole point of that exercise - giving the statutory guidance on section 436A - was to find children who had completely slipped through the net who were not receiving any education at all. It was not designed to target home educators in any way. And the first version of it actually said explicitly that this guidance does not apply to children who are educated at home."

The draft guidance for local authorities currently being consulted on by the government tries to turn this situation on its head, and use Section 436A to check the provision of every home educated child rather than only the ones about whom concerns have been raised, as Section 437 does.

The problems with this approach are as follows:

1. Section 7 gives parents the job of causing their children to receive suitable education, not local authorities. In order to ensure the suitability of the provision they must cause their children to receive, parents must be the arbiters of it - until and unless there are concerns that would create a Section 437 'appearance'. If local authorities are checking everyone's provision against the elements set out in Section 9.4 of the draft, for example, then parents will no longer be the arbiters of what constitutes 'suitable provision' in normal circumstances and will be unable to comply with their Section 7 duty.
2. The funding required for local authorities to thoroughly check the provision of every home educated child in the country will be both astronomical and unjustified.
3. The Article 8 right to respect for private and family life, home and correspondence will be breached - again, unnecessarily because the absence of specific concerns about the provision indicate that it does not need to be assessed.

Section 436A has been used successfully for its original purpose of locating those children for whom no education provision is being made whatsoever for the past twelve years since it was introduced. Home educating parents, on being asked under that section what provision has been made, have only needed to say: "home education" for this to have been accepted - unless and until specific concerns have been raised to give rise to a Section 437 'appearance' that the provision might not be suitable. This has freed up local authority resources for those families who have been in obvious need of more intervention instead of wasting them on unnecessary blanket checks.

Home educators in England who are affected by this consultation (Wales and Scotland are not) will have to consider their position en masse if this newly proposed misinterpretation of Section 436A taken forward beyond the consultation.

FAQ: Call for Evidence and revised DfE guidance

The DfE issued this consultation yesterday. Here is an FAQ about it for home educators:

1. Why has the government issued new draft guidance for consultation when Lord Soley's bill is about to go to its committee stage and it isn't compatible with the new draft guidance?

Some of us have a theory that this was the plan all along: that the bill was designed to make enough 'noise' in Parliament and the media to generate sufficient moral panic to allow someone (we're guessing at Daniel Monk) to offer to save the day and some cash by imposing their own interpretation of the statute on us. Mr Monk's Regulating home education: negotiating standards, anomalies and rights article formed the basis for the Badman Review and we think he is probably the 'DM' featuring in the various Freedom of Information bundles we have received concerning correspondence about the bill.

2. What are the main problems with the draft guidances?

They stretch the law to try to make it mean something completely different to the way it has been for decades in respect of home education. The new draft guidance for local authorities bares little resemblance to the existing Elective Home Education Guidelines for Local Authorities. In future posts I'll hopefully be setting out the problems that will be caused by each instance of this and also the conflicts and incompatabilities with other laws and regulations it gives rise to.

3. How can we respond to the consultation?

The closing date is 2nd July 2018, so we have nearly 12 weeks in which to do so. I will probably put my response in during the final week, having taken as much time as possible to consider all of the many points arising. Some people have responded already but I think that's premature, unless they're thinking of sending additions when the various discussions have finished towards the end of the time period.

4. What's likely to happen with Lord Soley's bill now?

Many of us have been saying for a long time that we don't expect that bill to receive debating time in the House of Commons, meaning it will not be able to proceed much beyond committee stage and become statute.

5. Where else can I read about this or discuss this with other home educators?

The new HE Byte is a good place to keep up with news and updates. A Facebook group has also been set up as a discussion hub. If you want to join this, please email or Facebook message me.

Baroness Cavendish's 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 on 24th November, during which a scheduled debate on the subject took place. In this post, after a short overview, I'm going to go through Baroness Cavendish's 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.

I have already covered Lord Soley's first contribution to the debate, Lord Baker's, Lord Addington's and that of Baroness Morris.

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:

Baroness Cavendish of Little Venice: My Lords, I welcome the opportunity to speak in this important debate. I welcome the noble Lord, Lord Agnew, who has such a long-standing commitment to education. I hope he will be able to move this forward.

As the noble Lord, Lord Soley, said, there is a growing consensus that registering home-educated children is essential.

A "consensus" that so far seems to have been drawn by only one academic, several politicians and perhaps three dozen local authority officers. As ever the opinions of home educating parents or, more poignantly, "the child's voice" have not yet been sought, but the forthcoming public consultation will open the floodgates to those.

That is a change,

It is not. I have been interested in the political approach towards this niche activity for over twenty years now, and the numbers of those wishing to tighten its regulations remain roughly the same.

and it relates partly to the growing numbers; we do not know what the numbers are, but we know from local authorities that they are growing.

I'd like to invite Lady Cavendish to reconsider her words here. We don't know what the numbers are, but we know that they are growing? That rather suggests that we do have a very good idea what the numbers are. In fact, we know exactly the numbers of all of those whose local authorities know they are being home educated, which is every child who has been deregistered from a school, plus every child whose home educated status has been reported to their local authority under Section 436A of the Education Act. A child's home educated status can be reported by doctors, dentists, shopkeepers, neighbours, relatives, swimming pool attendants - in fact, anyone to whose attention it comes. This results in the vast majority of home educated children's status being known to their local authorities, the remaining few of which will be mopped up by Section 436A in the near future, or reach maturity. This moral panic about the numbers home educating is just that - or an excuse to try to impose further measures of oversight than mere compulsory registration can afford, in future years in the statutory guidelines.

It is important to understand, as previous speakers have said, that home education is no longer the preserve of a small group of bohemian parents or parents whose children flourish better at home because they have experienced bullying or have special educational needs that, as the noble Lord, Lord Addington, said, are not necessarily being adequately met. If I may say so, the latter is a separate issue but it is still very important.

The so-called bohemian parents, or 'philosophical home educators' as they now seem to be called, are the group that tends to home educate from the very beginning, whose children have usually never attended school. This seems to be the group causing the least concern in this moral panic, and yet this is the only group whose children's educational status might still be not known to their local authority.

That is no longer what home education is simply about, and a lot of people are somewhat out of date in imagining it as such.

What? Home education is about educating children other than at school, as per Section 7 of the Education Act. There is so much spinning in this debate, everyone seems to be dizzy.

Precisely as the noble Baroness, Lady Morris, has just outlined, because the good parents are quite vocal and articulate it is easy to overlook that there are now a substantial number of parents whose desire is to isolate their children from mainstream society and from liberal British values. As was referred to earlier, there are also parents who are set on various forms of abuse, which is simply horrific, but the other group is probably—hopefully—larger.

Where a local authority .. have reasonable cause to suspect that a child who lives, or is found, in their area is suffering, or is likely to suffer, significant harm, the authority shall make, or cause to be made, such enquiries as they consider necessary to enable them to decide whether they should take any action to safeguard or promote the child’s welfare. This statutory guidance makes it very clear that radicalisation is now classed as 'significant harm'.

I speak as someone who, with the Cabinet Secretary, commissioned the Louise Casey review of integration and opportunity. Among many other things, that review expressed deep concern about the effect of home education on some children who are already almost excluded from society and will face much greater problems and lack of opportunity in future. I was also involved in commissioning the Alan Wood review of local safeguarding children boards, which, again as previously described, expressed the important point that there is no way for multiple ​agencies to get together to share this information and no way for local authorities to assess the very real risk to some of these children. There is a lacuna in the law, and we are effectively sabotaging local authorities’ duty to safeguard children by not closing this loophole.

You also speak as someone, Baroness Cavendish, who is a former aide to Marjorie Scardino when she was the profit-tripling CEO of Pearsons PLC, the digital education giant whose influence on education policy has raised serious concerns. A growing number of home educators is also a growing potentially captive market if it is regulated in a certain way - it transpired that there were digital education providers mysteriously involved in the Badman Review, so we are naturally suspicious about anyone showing an interest in our regulations who has been connected with such companies. Not that I'm suggesting Baroness Cavendish is still connected with Pearson PLC in any way: I do not know whether she is or not.

It is an outrage that the Government do not know how many children in this country are being home educated. As previous speakers have said, we have some impression of the number of children who are being withdrawn, but we have no idea how many children have never been registered. I recently did an interview for Radio 4 with Ofsted’s chief operating officer. He made it very clear that he believes that there may be as many as 50,000 children in this situation. There are tens of thousands of children whom we do not know about. That does not mean that they are all at risk, but it is something that surely we need to know.

Any child, home educated or schooled - who is at risk of suffering "..significant harm, the [local] authority shall make, or cause to be made, such enquiries as they consider necessary to enable them to decide whether they should take any action to safeguard or promote the child’s welfare." The law is already sufficient to address this - in other words, as Lord Agnew points out later in the debate: "We think they already have the tools for the job."

The other issue that concerns me deeply is the correlation between home-educated children and the growth of unregistered out-of-school settings. It is easy to imagine home-educated children sitting around the kitchen table or in a cosy sitting room. The reality is that some of them are not at home at all: they are going out every day to tuition centres, often Islamic tuition centres, some of which are legal, some of which are illegal, and very few of which are monitored. To give one example, the director of the Siddeeq Academy in Whitechapel was one of nine people arrested by the Metropolitan Police counterterrorism squad a few years ago. The academy has now been closed, but if you talk to the very small unit at Ofsted which is trying to identify and close down these schools, it will openly tell you that it is very difficult to identify their number. Registration would be the absolute bedrock that we need to enable the system at least to identify and follow those children.

A child is by definition not being home educated if he or she is attending school. That genuine home educators are being threatened with tighter regulations just because the Church apparently cannot be stood up to, is nothing short of scandalous. The illegal schools should be closed and if it appears to a local education authority that a child of compulsory school age in their area is not receiving suitable education, either by regular attendance at school or otherwise, they should serve a notice in writing on the parent requiring him to satisfy them within the period specified in the notice that the child is receiving such education. I do not know the answer to illegal schools being difficult to identify but if they are, then merely knowing the names of children who are being home educated will not help. Visiting them once a year will not help: the only solution is for the state to literally follow the children everywhere they go, which is completely unviable.

The noble Lord, Lord Soley, understandably said that some of the clauses — about emotional development and so on — are unrealistic. It is absolutely right that we do not create a monstrous bureaucracy around this and that light-touch regulation is essential.

As explained above, light touch regulation won't go anywhere near solving most of the alleged problems this moral panic has raised. If this bill ever did make it into legislation it would be an enabling clause, which would give rise to ever stringent annual revisions in the associated statutory guidance.

But if the Minister is willing to look at this properly he will need to consider to what extent we are asking social workers to fulfil their duty under safeguarding rules, which they would do and should be allowed to do anyway, and to what extent we also want to involve Ofsted, which would be very different. That would be an investigation and analysis of the education that children are receiving, and that is an open question.

This paragraph is quite hard to decipher, but I think she might be saying that Ofsted should be involved in investigating and analysing the education we're giving to our children. If Ofsted also wants this, then that might explain their own contribution to the moral panic.

Personally, I think that registering the children is essential, and I would hate anything to derail the possibility of achieving that. Perhaps it might be left to another time.

What, Ofted inspecting our provision? Yes of course, it would go into the updated guidance if the legislation ever changed, which does not look likely. Assuming Ofsted beat the local authorities to the job - a battle which I suspect will be left to another time: quite some years hence.

I hope that the Government will now take this seriously. It is time to act. There were a huge number of interactions between the Government and the previous and current Chief Inspectors of Education on this issue. It is not a new issue, but it is now much clearer that it is a real problem and I hope that the Government will act.

One carefully managed and orchestrated moral panic does not a real problem make.