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 The following is my opinion about the draft guidance only.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.