Tuesday, February 12, 2013

Mission creep warning! CME guidance consultation - closes this Friday 15 February 2013 at 5pm

CME (Children Missing Education) is central government's statutory guidance to local authorities on how to interpret section 436A of the Education Act. A new version has recently been drafted and this is open for public consultation requesting an email response before this Friday 15 February 2013 at 5pm.

This section of the law was allegedly not intended to 'catch' or check up on home educating families and the first version made this explicit:

[Clip = 66 seconds long]
["The two sets of guidance 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." - Jane Lowe, giving oral evidence to The Commons Education Select Committee's inquiry into EHE support on Wednesday 5 September 2012]

Later versions were to lose this statement in an ongoing process of mission creep, although I think they did keep the link to the all-important 2007 EHEGLA, thereby rendering their non-statutory status de facto statutory. This new draft appears to have lost that link, which I think is worrying and in need of our urgent response.

In my view it's important for home educators to regularly check the CME guidance and respond to consultations when it changes because the guidance is often misused by local authority officers in their approach to home educators, so we need its wording to be very clear and unambiguous, especially considering Ofsted's role in inspecting local authorities' compliance with it. (See Fiona's response for more on this.)

The new draft guidance seems blissfully short and simple compared to recent versions, but I think it contains many problems, as follows:

  1. From the Introduction - overview: "The purpose of the section 436A duty is to ensure that local authorities can identify and return to full-time education those children who are missing education (or those at risk of becoming CME)." I can find no reference in section 436A which speaks of "at risk of becoming" and think this should be removed to prevent further mission creep.
  2. "The duty relates to children of compulsory school age who are not on a school admission register and not receiving a suitable education otherwise than at school, for example, at home." There is no such thing as 'compulsory school age', only 'compulsory full-time education age' and the guidance should use the legally accurate term throughout, instead of the false one.
  3. "Issuing School Attendance Orders (SAOs) to parents who the local authority believes are not securing a suitable education for their child" is the end of a process at every step of which the best interest of the child should be prioritised. If the authority believes a parent is not securing a suitable education for their child, government guidelines advise informal enquiry first.
  4. This guidance should reference and link to the Elective Home Education Guidance for Local Authorities for instructions in their approach towards home educating families.
  5. "Safeguarding duties, for example, visiting a family if they have concerns about a child’s welfare and poor school attendance and, if appropriate, making an application to the family court." This sentence implies a proactive stance which I believe is an incorrect interpretation of the cited section 47 of the Children Act 1989. My concern is that any proactive conflation of Education with Welfare may lead to home educating families being automatically treated with suspicion when there are no indications that their children are at risk of being harmed or neglected and their privacy and wellbeing suffering unnecessary damage from any such suspicion.
  6. "Children at particular risk of missing education" This whole section needs to be removed in my opinion as it contains items of prejudice and refers to the issue of risk itself, which is not mentioned in the section 436A of the Education Act. I think it should be the purpose of this guidance to interpret the law as it stands, not to facilitate mission creep.
  7. "Families moving between local authority areas can sometimes lead to a child becoming ‘lost’ in the system and consequently missing education. Where a child has moved, local authorities should check with other authorities – either regionally or nationally – to ascertain where a child has moved to and ensure that they are attending education or being home educated." I can see nothing in section 436A of the Education Act which calls for families' movements to be tracked around the country in this unnecessary way. Section 7 of the Education Act already sets out parental responsibility for the full-time education of children and local authorities should only address evident current failings in this. Tracking movement of families would go beyond this legal requirement and infringe on civil liberties.
  8. "Local authorities should regularly raise awareness of their procedures with local schools, partners and agencies working with children and families, for example, GPs and other health professionals, police, emergency services, children’s homes, Youth Offending Teams." I would like to take this opportunity to express a warning about the unintended consequences which may arise from too much connection between issues of health, education and welfare. This is the increased, so-called 'service-resistance' of families seeking to preserve the peace and freedom required for their wellbeing.
  9. I think this guidance should somewhere restate the original intention that section 436A and associated guidance should not be used to check or monitor Elective Home Education, because Section 7 of the Education Act and the Elective Home Education Guidance for Local Authorities already adequately cover this area.

    Local authorities can make inquiries of such families only where it appears a child may not be in receipt of an efficient full-time education as set out in Section & and the EHEGLA Guidance. Further checking and monitoring of home educating families may be damaging to their wellbeing and their children's interest in learning. The wording "where it appears" bears no relation to the term parents who the local authority believes are not securing a suitable education for their child. The former having specific legal meaning and the latter being quite arbitrary and therefore open to misinterpretation.

    I would like this guidance to state that when a parent states the child is home educated, the Elective Home Education Guidance for Local Authorities should be followed. I do not think the proactive seeking out of such families for checking or monitoring purposes is an accurate interpretation of section 436A of the Education Act.

The above nine points will form the main part of my email response to the consultation.


Blogger Gill said...

Here's Raquel's response, which I like better than mine!

5:05 pm, February 12, 2013  
Blogger Saracen said...

I agree with nearly all of your points. I am just puzzled by what you said about there being no such thing as compulsory school age. It is true that this is a misleading term, but unfortunately it is the term actually used throughout the 1996 Education Act and therefore is legally correct.

Personally, I prefer to use "compulsory education age" in informal discussions, but I think it is appropriate to use "compulsory school age" in any legal discussion.


7:15 am, February 18, 2013  
Blogger Gill said...

I think if we condone the term by agreeing to its use, we risk contributing to its weakening effect on the traditionally strong position of home education in England. I am not a lawyer, but how can "compulsory school age" ever be a legally correct term in a legal system that has no recognition of compulsory schooling?

4:26 pm, February 18, 2013  
Blogger Saracen said...

Well... I take your point that it was an unfortunate choice of term in the first place. If the relevant section of the Education Act were up for amendment, then that might provide an excellent opportunity to reword it.

But when making a legal argument, the only way to avoid confusion is to use the terms which are actually in the law itself. "Compulsory school age" is the legally correct term by virtue of appearing in law. As far as I know, "compulsory education age" does not appear anywhere in English law. That doesn't mean we can't use it, even when discussing the law, but it does make the discussion less precise. It seems reasonable to me that where one law refers to another law, both should use identical terminology.

The legal meaning of a word often differs from its common informal usage. "Person", for example, can be used to refer to a corporation, though we would never use it that way informally.

However, I don't mean to sidetrack you from the real issue by quibbling over a minor point!

12:50 am, February 19, 2013  
Blogger Gill said...

I will never refer to "compulsory school age" in the context of English law, apart from in conversations like this which debate the invalidity of the term. If this makes me "imprecise", so be it. Just because the Education Act itself is "imprecise" does not mean I should be. If that seems unreasonable to you, so be it also. I see from your profile you are a home educator, so it surprises me that my insistence on the term "compulsory education age" instead should seem unreasonable to you.

You have not sidetracked me from the real issue. The consultation in question finished four days ago and I responded in good time to my own satisfaction, so there is now no sidetracking to be done. And nor do I agree that it is a minor point, which is why I made it in my response.

Also, although I said I was not a lawyer this does not mean I have never before heard legal terms like "person" and been familiar with their different usages. Are you a lawyer?

4:06 am, February 19, 2013  
Blogger Saracen said...

Gill, I am very sorry to see that I seem to have offended you. That was not my intention.

It looks like neither of us is likely to persuade the other about this subject, so I won't take up any more of your time with it.

Thanks very much for responding to the consultation and for sharing your thoughts on it here. I found your ideas useful.

Warmest wishes,

11:30 pm, February 19, 2013  
Blogger Gill said...

Dear Sara, please be reassured that I am not remotely offended, only mildly perplexed and that will soon pass!

But words are the stones of the ground we fight over, inch by inch. If our freedom is lost, it will be because we lost control over the right to define little words like "education", "learning," and "work", etc.

Whenever the meanings of key words like that are decided elsewhere, on our behalf, in this interminable, Gradualist process of politics, we lose more freedom. So I think Every. Word. Counts.

Thank you for your comments.

7:27 am, February 20, 2013  

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