Briefing for MPs and organisations providing overview of the relevant legislation, principles and issues at stake around elective home education and the recommendations of the Education Select Committee.
(Bold in citations below added by editor.)
Current educational law in England
Parents/carers have a statutory duty for ensuring that the child receives a ‘suitable education’ as stipulated in s7 Education Act 1996 by regular attendance at school or ‘otherwise’. There is no specification as to the form that ‘otherwise’ should take, ‘elective home education’ is not part of this legislation.
- Parental duty is a key part of the fourfold foundation of education law in England. Lord Adonis provided analysis and explanation of the value of the fourfold foundation via case law in 2007. The strengths were discussed in 2006 by Lord Bingham (Ali v Lord Grey School  UKHL 14) “This fourfold foundation has endured over a long period because it has, I think, certain inherent strengths. 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.”
- Protocol 2 Article 1 of European Convention on Human Rights (this Article is incorporated into national law by the Human Rights Act 1998).“No person shall be denied the right to education. In the exercise of any functions which it assumes in relation to education and to teaching, the State shall respect the right of parents to ensure such education and teaching in conformity with their own religious and philosophical convictions.”
- In the 2016 Named Person ruling the UK Supreme Court quoted the late US Supreme Court justice James Clark McReynolds (Pierce v Society of Sisters): “The fundamental theory of liberty upon which all governments in this Union repose excludes any general power of the state to standardize its children by forcing them to accept instruction from public teachers only. The child is not the mere creature of the state; those who nurture him and direct his destiny have the right, coupled with the high duty, to recognize and prepare him for additional obligations.”
- “The respect of parent’s freedom to educate their children according to their vision of what education should be has been part of international human rights standards since their very emergence.” (The Special Rapporteur to the United Nations Commission on Human Rights 1999.)
Government proposals to extend oversight of children educated ‘otherwise’
There are no concrete details yet as to the government’s intended mandatory home education registration other than that it is to impose the duty on parents. (Baroness Berridge HL 21/07/21.)
Proposals being discussed have included the following:
- registration to aid identification of another group, that of Children Missing Education (Baroness Berridge Education Committee Oral evidence: Accountability hearings, HC 262 )
- registration and extensive monitoring including mandatory visits in person, annual assessments of children and of provision (Education Select Committee hearing on home education)
There is no evidence that home education is a risk factor for safeguarding but there is considerable official anxiety as to ‘lack of oversight’ as expressed, for example, in this DfE Official email to Waltham Forest LA Subject: RE: EHE and findings from SCR. “There is also a safeguarding issue around the oversight of home-educated children, though there is no evidence of an increased risk compared to children who attend school. Nevertheless, a child being educated at home is not necessarily being seen on a regular basis by professionals, such as teachers, and this logically increases the chances that any parents who set out to use home education to avoid independent oversight may be more successful by doing so.”
- The 2016 UK Supreme Court ‘Named Person’ ruling upheld the risk of significant harm threshold for intervention by the state. Surveillance of an entire group does not meet this threshold.
- Increased state monitoring is positioned as keeping children safer but while it does lead to increased assessment of families it has not been shown to lead to a corresponding increase in detection of child abuse nor of reduction in harm to children. (Devine 2017)
Research (Devine and Parker 2016) found child protection training provided in educational settings poor and biased towards over-referral, below statutory thresholds of s47 or even s17. Teachers felt they were being encouraged to refer on the basis of ‘signs’ or ‘risks’ that they did not believe amounted to abuse nor risk of.
- FOI requests and research (Charles-Warner, 2015) found that home educating families are referred to social services almost twice as often as other cohorts. Despite this higher referral rate children were found to be ‘in need’ at a lower rate than schooled children.
Extensive data is already held on children educated ‘otherwise’
Although there is no current duty to register with local authorities as a home educator the majority of children will be ‘known to’ LAs and their details held on council databases.
- Legally schools must immediately provide LAs with details of every child deregistered from school at non-standard transition points, including for elective home education, under the Education (Pupil Registration) Regulations (England) 2006.
- The s436a Education Act 1996 and the Children Missing Education Statutory guidance for local authorities 2016 place duties on LAs to identify any children missing education. These powers allow councils to add children’s information to databases without consent when any child not in school is brought to their attention. Elective home education: departmental guidance for local authorities 2019 suggests that it is good practice to contact home educators on at least an annual basis.
- Research carried out by Education Otherwise reports that 94.75% of families are ‘known’ to their LA, and are on the LA databases. There is no evidence to support the claim that the small number of children whose data is not held on home education databases are ‘invisible’. The available research shows that home educated children are seen on a regular basis by numerous people within their community including educational and health professionals and that children are likely to be on numerous databases, including those of health services and GPs.
Objections to monitoring
Objections to registration and monitoring are myriad. The difficulty for LAs of making decisions as to suitable provision for children whom they do not know was flagged as an issue in the Education Select Committee report into exclusions. The same issue exists for home educated children. Registration and monitoring upends the principles on which educational law and human rights are based and will impact parental ability to fulfil s7 duties. LA understanding of home education is poor generally, particularly approaches such as self-directed education, and LAs favour education which looks like school. There is extensive research into accountability measures and high stakes assessment which show negative impact on pedagogy, curriculum and children’s mental health within the school system which proposals which include assessment would impose on home education. There are fears around harm to children and families due to increased surveillance likely resulting in more families being caught up in social services assessment, well documented as having far reaching and damaging impacts.
Groups which experience bias and discrimination will be further disadvantaged by increased oversight. Gypsy, Roma, Traveller families are one group who face discriminatory attitudes, e.g. Baroness Whitaker stated: “The significant proportion of Gypsy, Traveller and Roma children who drop out of secondary school, usually through bullying, and whose parents are not equipped to teach them.” (HL 21/07/21)
Authorities desire to ‘have the data’ is not sufficient justification for holding information on children as there are far reaching potential impacts. 2009 report, Database State, detailed the many different ways that an individual could be harmed by sharing of their data, the risks of which have escalated in the 12 years since the report. The Department of Education has had substantial issues with its handling of data as a damning audit by Information Commissioner’s Office found. “The audit found that data protection was not being prioritised and this had severely impacted the DfE’s ability to comply with the UK’s data protection laws.” Defend Digital Me has highlighted numerous examples of DfE providing monthly records for the Home Office as part of the ‘hostile environment’. Again, risks are amplified for groups which experience other discrimination.