Friday, January 20, 2012

2012. Game: on

So here we are, home educating in England at the start of 2012. What's the legal position now?

As far as I can tell, as parents we're still primarily subject to Section 7 of the Education Act :

7. 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.

which tells us that:

  • It's the parent's job - not the government's, school's or local authority's job - to 'cause the child to receive' the education.

  • The education has to be full-time, so all day, every day. (Children naturally learn all the time, so this is not difficult.)

  • It has to be suitable for the child's age, ability and aptitude. (Hard to achieve in a school class of 30; easy for a parent at home who can constantly assess and adapt to fewer children's unique requirements.)

  • The education has to be efficient. So, no waiting around for someone's attention, or to use equipment etc, or for questions to be answered. (Again, easy at home for parents: almost impossible in a school scenario.)

- and therefore leads us to conclude that elective home education is still the best way of delivering the kind of education required by law.

Local authorities have some legal requirements too. Under the Education and Inspections Act 2006:

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.

And section 437 of the Education Act:

437 School attendance orders.

(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.

But these are requirements for local authorities, not parents. As far as I know, there is nothing in statute to compel us to try to prove anything about our children's education to our local authorities.

But they'll ask us to anyway.

Why? Mostly, I think, because they're trying to comply with their legal requirements, set out in Section 436A and 437 (above). Some will also be motivated by their own, personal, ideological reasons ("The best place for children is in school"; "Parents can't be trusted and must therefore be monitored" etc) - even though pursuing a personal ideology in their professional role will in most cases be a clear breach of their employment contract.

But legally they're in a difficult position really, and I sympathise - though not enough to jeopardise my children's education just so that they can feel safe from any repercussions their might fear. My child's wellbeing comes before a local authority officer's salary and position in my own scale of priorities, though I'm aware it's probably the other way around for the local authority officer.

Incidentally, my reasons for home educating are:
  1. love for my children; and
  2. parental instinct
- not just because it's the best way for me to comply with the Education Act! But English Law is eminently sensible in accommodating parental instincts in this way. I want to cause my child to receive an efficient, full time education suitable to his age, aptitude and ability - and I would have done it anyway, even without the law telling me I must.

So here I am, happily complying with my part of the law. And here's the local authority, trying its best to comply with its part. Noticing my child doesn't attend school, it asks me for information about his educational provision.

At this point, I have to make a decision about how to respond.

Often, my response will depend on how I'm asked. A simple, one-off request for information to enable the local authority to ascertain that my child is not 'missing education' isn't likely to cause me any problems, especially if it reminds me of my right (as set out in the Elective Home Education Guidelines For Local Authorities) to respond in a format of my choosing. So I could, for example, give assurance in writing on paper or online, or at a meeting with or without my children, at our house or at any other venue, at a time and place I choose to arrange with them.

But an ultra vires, high-handed and threatening sounding notice of an officer's intention to visit my house, without waiting for my reply to the above request, or sometimes without even bothering to send the request in the first place, is not likely to be received so well by me. Why should I comply with such instructions when there's no statutory reason or need for me to do so? Sections 436A and 437 are not my problem as a parent: they're the local authority's problem, although it's possible that the new Localism Act enables them to send such notices anyway. But in statute I don't have to comply.

Accepting regular visits from the local authority might well affect my ability to comply with Section 7, as might receipt of a school attendance order. Case Law advises me that it's unwise to ignore a request from my local authority for information about my provision. So, how do I decide how to respond?

The conflicting priorities between me the parent (my child's needs and my Section 7 responsibilities) and the local authority (its legal requirements) produces a point of tension between us. A power struggle. A game of brinkmanship, in which there are eventual winners (home educators who get left alone, local authority officers who succeed in extending their power) and losers (home educators facing a barrage of increasingly ultra vires hoops through which they're being asked to jump, local authority officers who must reluctantly be satisfied with receiving minimal information about provision.) And an overall, ongoing war of attrition to establish the new status quo between the two which may or may not lead to future changes in statute accordingly.

In this game, local authorities often try to pretend they have more power than they actually do. ("It is our duty to monitor education provision..." There is no 'duty to monitor'.) Or that they're here "to help and advise you". But the way I see this situation is similar to being arrested by the police. In an interview in which anything I may say could be taken down and used as evidence against me, could their priority really be to help and advise me? No! They're seeking to gather evidence to build a case against me, and to try to assess my strengths and vulnerabilities, to get an idea of how I might come across in a court of law.

Some people respond by asking the local authority for specific reasons why it appears to them that the provision might not be suitable. This is a great stance to take, in my opinion, if it achieves its objective in persuading the local authority to back off.

In any case, I'm going to be very careful what information I divulge to them, in case it might be taken down and used in evidence against me. I won't ignore their request for information, but I will supply the bare minimum to demonstrate (not to prove - it would be impossible to prove beyond reasonable doubt to unreasonable people, and I don't know if these are reasonable people) that my child is being caused to receive an efficient, full-time education, suitable to his age, aptitude and ability. And I will do this in a format of my choosing - regardless of how the local authority asks for it.

And - to do my bit to ensure the local authority continues to have no duty to monitor on an ongoing basis - I will only do it once.