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Home Education Safeguarding Analysis

Home education hearing: UNICEF UK recommendations not in accordance with 2016 UK Supreme Court ‘Named Person’ ruling

The following letter has been sent to the Education Select Committee and will also be sent to UNICEF UK as a complaint. UNICEF UK’s submission can be read here

UNICEF UK recommendations not in accordance with 2016 UK Supreme Court ‘Named Person’ ruling

UNICEF UK made recommendations for monitoring and non-consensual state intervention of home educating families based on consideration of rights contained in United Nations Convention on Rights of the Child (UNCRC) and on grounds of safeguarding risk. Their recommendations are not in accordance with the 2016 ‘Named Person’ ruling of the UK Supreme Court who gave clear direction as to this.[1] This upheld the long-established legal threshold for state intrusion into family and private life, that of risk of significant harm protected by Article 8 of the European Convention on Human Rights (ECHR).

The UNICEF UK submission lists a number of rights they say must be recognised and realised in home education. The list is not comprehensive, it neglects for example to include the child’s right to privacy (Article 16) and also that “Parents have a prior right to choose the kind of education that shall be given to their children” (part of Article 26). UNICEF UK claim that these rights are grounds for the state to monitor parental provision of them.

The ‘Named Person’ ruling upheld the legal threshold for intervention by the state, that of risk of significant harm and made clear that unless this threshold is met parents have responsibility.

“Parents or, as the case may be, legal guardians, have the primary responsibility for the upbringing and development of the child. The best interests of the child will be their basic concern.”

The same judgment affirmed that nothing in Article 3 of the UNCRC (acting in the best interests of children and young people when making choices that affect them) could extend the state’s powers to interfere with the negative rights in Article 8 of the ECHR. Measures around increasing well-being must be consensual.

A second rationale put forward by UNICEF UK as justification for routine monitoring, or surveillance, of home educating families is ‘safeguarding’. The assertion of UNICEF UK that “safeguarding is of concern when a child is home educated” is disingenuous. There is nothing in the legal practice of home education which presents a safeguarding risk. That home educated children are not monitored by safeguarding professionals on a daily basis, unlike school children, concerns some organisations.

The clear implication that the state must have eyes on a child, even in the absence of specific concern, is sometimes stated but it is dangerous path which leads to total state control at the expense of the family. Again, the 2016 UK Supreme Court Named Person ruling cited above must be remembered, that the legal threshold for non-consensual intervention by the state is risk of significant harm. This clearly falls far short of that threshold.

In addition to this lack of legal justification there is a lack of evidence that increased surveillance of families and state intervention lead to any reduction in harm. Increased monitoring and focus on ‘safeguarding’ has indeed led to increased assessment of families. This has not been shown to lead to a corresponding increase in detection of child abuse nor of reduction in harm to children.[2]

There is substantial research into the harm caused to both children and parents in the assessment process. Impacts include terror, shame, anxiety, fear, distrust and symptoms similar to PTSD. [3] There has been awareness of this central problem of the harms of over-intervention for many years including government funded research in 1995 by the Department of Health.[4] Recent research found that the shame and shaming experienced by parents under assessment was not the result of bad agents but instead is an inherent part of the safeguarding system.[5]

The positing of school as necessarily a safe place and part of safeguarding ignores the reality that abuse in schools is endemic and concerns us all. Research shows that the rise in numbers of home educated children has been driven by those whose needs are not being met in school. Not Fine in School, an organisation that campaigns for the rights of ‘school refusers’ and their families submitted evidence on this to this hearing. “…many ‘non-elective’ home educators opt to deregister because the mainstream education system is causing their child significant harm.”[6]

There is evidence of different harms inflicted by and within the school system. There is extensive evidence that the legal practice of isolation causes serious psychological and emotional harm. Sexual abuse and bullying are a widespread problem. The focus on testing, the narrow curriculum and zero tolerance behaviour policies are causing emotional harm and, combined with pressure from the Department of Education and Ofsted, are leading to high rates of off rolling and exclusions.[7] There is also extensive and shocking evidence into the inhumane and degrading treatment of disabled children and young people in schools. Disabled children and young people are regularly subjected to restraint and to seclusion which inflicts serious physical and psychological damage.[8]

The recommendations from UNICEF UK are for increased state intervention into family life, substantially below the legal threshold. The evidence strongly suggests that this increased intervention will lead to higher numbers of families drawn into assessments with evidence suggesting this will lead to increased incidence of harm to children and families.

Again, the 2016 UK Supreme Court ‘Named Person’ ruling gives us clear guidance on the risks of this and on the fundamental need for democracy to protect the autonomy of the family from the state.

“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. Within limits, families must be left to bring up their children in their own way.”

The justices also quoted the late US Supreme Court justice James Clark McReynolds, who held in 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.”[9]

This key ruling of the UK Supreme Court needs to be kept in mind when weighing the evidence from the submissions received, including that of UNICEF UK.

 

 

[1] https://www.supremecourt.uk/cases/docs/uksc-2015-0216-judgment.pdf

[2] Devine, Lauren (2017) Rethinking child protection strategy: Progress and next steps, Seen and Heard

[3] Lauren Devine (2017) The Limits of State Power & Private Rights. Exploring Child Protection & Safeguarding Referrals and Assessments, Routledge; (Comprehensive discussion of all evidence including discussion of House of Lords debate 2001 – the topic was discussed quite a number of times in this year and Prosser & Lewis (1992) Child Abuse Investigations, the Families Perspective, PAIN Parents Against Injustice and following sources), Jon Prosser (1995) A Case Study of a Family Wrongly Accused of Child Abuse; Devine, Lauren (2017) Rethinking child protection strategy: Progress and next steps, Seen and Heard; Matthew Gibson (2013) Shame and guilt in child protection social work: new interpretations and opportunities for practice; Pamela Davies (2010) The impact of a child protection investigation: a personal reflective account; Lynne Wrennall (2004) Miscarriages of Justice in Child Protection: a brief history and proposals for change, presented to All Party Group on Abuse Investigations; Sabrina Luza and Enrique Ortiz (1991) The Dynamic of Shame in Interactions Between Child Protective Services and Families Falsely Accused of Child Abuse

[4] [4] Department of Health (1995) Child Protection: Messages from Research

[5] Matthew Gibson (2020) The shame and shaming of parents in the child protection process: findings from a case study of an English child protection service Families, Relationships and Societies, Policy Press

[6] Not Fine in School evidence submitted to this hearing 

[7] Education Select Committee report, Forgotten children: alternative provision and the scandal of ever-increasing exclusions

[8] CYPCS inquiry into abuses by schools in Scotland.

Challenging Behaviour Foundation report

[9] The Christian Institute & Ors v The Lord Advocate (Scotland) [2016] UKSC 51 (28 July 2016) at para 73

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