We reject proposals to introduce mandatory registration and monitoring of electively home educated children on the following grounds.
We reject the idea that local authorities have better insight into what individual children need than the parents of those children, unless there is reason to think those parents are derelict in their duties. If so they must be challenged in court, not subject to the different approaches of local authorities. There is reason and evidence to worry that monitoring will substantially harm the education of home educated children.
Data Sharing and Invasion of Privacy
Proposals to introduce mandatory registration and data sharing about children and families between agencies are likely to be unlawful and contravene human rights and data protection law. We have received advice from David Wolfe QC that data sharing merely because a child is home educated would not be lawful.
We argue that the proposals could breach Article 8 of the Human Rights Act 1989 and Article 16 of the UN Convention on the Rights of the Child.
Safeguarding and Child Protection
We reject, on both legal grounds and grounds of efficiency, the argument that families must be monitored to protect children. There is evidence and reason to believe that any proposals which increase the ‘net’ of children surveyed might potentially harm families, waste social services time and resources and ultimately do not increase children’s safety. High profile commissioned research and numerous eminent academics and professionals have commented widely on these problems inherent within the current system. There are incredible complexities which have been considered. ‘Solving’ child abuse or even learning to recognise the signs of child abuse – if such signs do in fact exist – are huge questions, not to be resolved merely by ‘seeing’ a child.
These worries are not specific to home education, but if the proposals go ahead home educators will be pulled into the safeguarding system and affected in the ways outlined in the reports.
Proposals ignore impact of monitoring on families
Those in favour of monitoring do not consider any of the cost impacts involved to a group mainly made up of diligent, caring parents who put their child’s needs first. The proposals do not measure the negative cost nor give consideration to our reasonable expectations of privacy and family life and of protection of those rights against intrusion from the state.
Professor Eileen Munro (a former social worker and in 2010 commissioned by the Secretary of State for Education, Michael Gove to review child protection in England, The Munro Review of Child Protection: Final Report A child-centred system), in her report Confidentiality in a preventive child welfare system 2007, concluded:
“‘Power corrupts’ is a well-known truism but there is no acknowledgment of the possible danger of increasing state power over families. There is no recognition of the fact that liberal societies have placed a high value on privacy and confidentiality precisely because they present an obstacle to the state. While the state sees this in a negative light, the individual values it as a protection of their freedom. The professional ethic of confidentiality is seen by the government as an obstructive barrier to be removed in implementing their monitoring and assessment programme but this should remind us that the ethical principle is playing its rightful part as a protective barrier, defending the individual against excessive intrusion by the state.”
Local authorities have no legal duty to monitor but should seek confirmation of education from parents should there be any reasons for concern.
“Local authorities have no statutory duties in relation to monitoring the quality of home education on a routine basis. (2.7 EHE Guidelines for Local Authorities)”
If there exists any reason to think that a child might not be receiving a ‘suitable education’ local authorities can follow procedure to get the information from the parent. In reality all parents known by the council to be home educating their children are contacted for information.
“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. 437 to 443 of the Education Act 1996”
The local authority has a duty to “identify children not receiving education”. It also has statutory duties to safeguard children under the Children Act 1989 and the Children Act 2004
From the guidelines:
2.15 …These powers allow local authorities to insist on seeing children in order to enquire about their welfare where there are grounds for concern (sections 17 and 47 of the Children Act 1989). However, such powers do not bestow on local authorities the ability to see and question children subject to elective home education in order to establish whether they are receiving a suitable education.
Proposals amount to a fundamental change to the principle that education is the legal duty of parents
Some are surprised that there is not more duty on the local authorities to monitor, but education is the legal duty of the parents, not the state. It is an interesting question as to what might happen should it become the responsibility of the state. Potentially all the parents whose children have been ‘failed’ by the school system, quite a high number currently, could sue the government for failing to fulfil that duty.
Any move to make a child’s education the responsibility of parties other than the parent’s strikes at the very heart of the legislative framework for education in England and would expose those other parties to formal legal responsibility enforceable and actionable in the courts.” Education Otherwise June 2007
The potential legal impact of changes (of introducing legislating for a ‘right to education’ in UK law) was considered in detail by Lord Adonis in 2006 who concluded that while he could understand the appeal and impetus that it was legally problematic and was not worth the risks of a legal challenge.
The negative impact of monitoring on education
The impact of monitoring on the education of many children is potentially going to be negative. There is extensive evidence available that assessment damages the motivation to learn
This negative impact is likely to be greater for families whose child’s education is more self-directed, and which looks less like school. There is no requirement whatsoever that the officers monitoring education need have any understanding of such ways of learning (as Summerhill were able to secure when they took the government to court). While many families begin in a more formal manner over time they tend to find more informal methods of learning the most effective and so move towards this.
Parents who are monitored by local authorities become fearful of using any methods that don’t look like school-based learning, even when they can clearly see the advantages of those approaches to their child’s well-being and learning. This means that they are likely to be hindered from providing what they know is the best approach for the child to education because they adjust the provision to the expectations of those who are monitoring the education.
Alan Thomas and Harriet Pattison, UK experts in self-directed education, gave evidence at the Badman hearing that monitoring makes self-directed education impossible.
Proposals to introduce mandatory registration and share data of home educated children are not lawful
The consultation included a question about mandatory registration of electively home educated children and the sharing of data between national agencies such as NHS and the DWP. Advice received from David Wolfe QC is that sharing data on the basis merely that a child was home educated would not be lawful.
Research commissioned by Joseph Rowntree Reform Trust Ltd, Database State, into similar databases shows that a considerable number of governmental databases are illegal. Amongst the many examples of public sector databases which contravene human rights and data protection laws are the now disbanded ContactPoint as well as the current electronic Common Assessment Framework. It also includes illustration of how in practice being on such databases can be damaging to a child’s life, with impacts stretching throughout their lives.
A 2006 report for the Information Commissioner, Children’s Databases – Safety and Privacy by Anderson et al commented on the actual harm that sharing can do. “Government documentation and guidance is mostly unbalanced in that it ignores the dark side; it pays little heed to family values, therapeutic effectiveness, trust and privacy. By failing to respect the users of the social-care system, it risks deepening rather than ameliorating social exclusion. There is specific harm: in a disturbing recent case, a nine-year-old was wrongly taken into care after social workers misunderstood medical information. Increasing the amount of poor-quality data available will lead to more errors, and out-of-context information can easily cause risk-averse staff to panic, with serious consequences. There are also institutional and professional risks.”
One of the recommendations from this report was that: “disclosures and sharing of data on minors for less urgent reasons (such as for social welfare in a broad sense, or for general rather than specific crime prevention) should be strictly limited – and require clear and specific legal authority, preferably in primary legislation.”
To be legally valid, consent needs to be free and informed which the Information Commissioner clarifies as: “Consent should always be freely given, thus any document prepared by the data controller to obtain consent should not contain any coercive element, and lack of consent should not generally cause any detriment to the individual, particularly in respect of any statutory rights that individual has.”
Proposals for mandatory registration and monitoring ignore these legal requirements.
Monitoring proposals likely to breach legal right to privacy of both family and child
All English citizens have a legal Right to Private and Family Life guaranteed under Article 8 of the Human Rights Act 1998. The Human Rights Act protects your privacy, your family life, your home and your correspondence.
The Liberty website explains that: “Article 8 can be limited in certain circumstances – but any limitation must balance the competing interests of an individual and of the community as a whole.”
“In particular any limitation must be: covered by law, necessary and proportionate.
For one or more of the following aims: public safety or the country’s economic wellbeing, prevention disorder or crime, protecting health or morals, protecting other people’s rights and freedoms, national security”
The United Nations Convention on the Rights of the Child, Article 16, states that: ‘No child shall be subjected to arbitrary or unlawful interference with his or her privacy, family, or correspondence, nor to unlawful attacks on his or her honour and reputation.’
These rights are not absolute. It may be necessary for the state to breach them in certain circumstances (such as specified above). But there must be careful balancing of the right v duty of the state
The proposals to monitor home educated children are a breach of the rights of both the child, and the family as a whole, particularly on the issue of the insistence on interviewing the child and of visiting the home.
The steps some local authorities are asking for in this is to treat home educating families in the same way as families for whom a child has reached the s47 threshold of the Children Act 1989, i.e. that there is reasonable cause to suspect that they are suffering, or likely to suffer, significant harm”.
In these circumstances, when significant harm is reasonably suspected, the local authority has a legal duty to investigate. (The following is taken from the Leicester Children’s Safeguarding Board webpages to serve as an example of procedure.) They need to see and interview the child, see the home where the child lives and observe the interactions between the child and carers if possible. In these circumstances such steps are clearly necessary. But even in these circumstances these rights need to be kept in mind. The consent of the parents should be sought unless there is immediate risk to the safety of the child. “Any reason to exclude the parents from any aspect of the investigation must be evaluated and recorded within the strategy meeting record – including the need if it is agreed to dispense with their consent to see the child.” The consent of the child, if old enough, must be sought and any non-agreement on their part must be respected. “An adult – usually a parent, carer, relative or friend or teacher/nursery staff – should be identified to accompany and support the child through the process.” There are strict guidelines in place regarding the process for interviewing the child, the interview must be recorded, interviewers are trained as to the correct way to get information from the child.
(A s17 risk assessment can follow many of these same steps but there is no legal obligation of compliance, s17 requires consent. In reality, parents refusing to allow their child to be seen and the family to be assessed is a factor which prompts social workers to escalate families to s47. This is one of the many factors critiqued by Dr Devine and Mr Parker in which the system conflates low key worries about parenting with child abuse. However, there is no legal compulsion until s.47 threshold has been decided on.)
In the case of a home educated family – about whom there are no concerns about the safety or wellbeing of the child – there is an insistence of seeing the child and the home even in the face of an active lack of consent from parents and child.
Ineffective safeguarding – increased numbers of families are likely to be referred without this resulting on positive outcomes in terms of abuse prevented
Extensive research and data analysis by legal experts Dr Devine and Mr Parker has shown that the result of conflation of safeguarding and child protection at the early stages of referral and assessment has resulted in huge numbers – 5% of all families each year – being referred to social services. Many families are ‘risk assessed’ without their consent.
“The system is having to process this large number, most of which are not cases which reach a s.47 threshold even following assessment. Because of this the efficiency at referral and assessment stage has fallen leaving the problem of how serious child abuse is to be addressed. The increase of families investigated has not decreased child abuse as the efficiency rate of referrals to detections had dropped from 24% to 7% (Devine and Parker, 2015).”
Their research showed significant harm to the families involved and also that workloads for children’s social services were hugely increased. One of the reasons behind this happening was that frequently professionals, such as teachers, did not properly understand what should be reported and over reporting was commonplace.
There is every reason to presume that this would also be the case should proposals to monitor go ahead. Home education portrayed in media in connection with child abuse (some media presents it as tantamount to child abuse as it mixes up data for child missing education and elective home education so includes info about child trafficking)
Freedom of Information requests found that home educating families are already ‘disproportionately scrutinised, being approximately twice as likely to be referred to Social Services at 9.39 – 10.19%, as were children aged 0-4 years at 5.24% and children aged 5-16 who attend school at 4.93%.’ Despite that double referral rate, Child Protection Plans were in place for only 0.17 – 0.24% of home educated children compared to 0.69% of all 0-4 year olds and 0.49 of 5- 16 year old schooled children. Referrals to Social Services were found to be 3.5 – 5 times less likely to lead to a Child Protection Plan with home educated children than with referrals of schooled children aged 5-16 at 9.5% and 5 – 7 times less likely to lead to a Child Protection Plan than referrals for children aged 0-4 years at 13.23%.
Children’s Social Services departments are already substantially overloaded. The ‘Children’s Databases – Safety and Privacy’ report for the Information Commissioner noted that:
“If one of the core problems in accurately identifying children who are suffering, or are at risk of suffering significant harm, is the level of professional expertise in understanding data (rather than a lack of data per se), then providing more data does not seem to be the most obvious strategy for improving practice. In fact it may be counter-productive. If there is more data, time will be spent on absorbing it rather than acting upon existing data. Additionally, important data may be hidden below insignificant data – this problem is well understood by those responsible for running criminal investigations, particularly those in real time (such as kidnaps), with which section 47 cases may be compared.”
Safeguarding ineffective – being seen is equated with being safe even in the face of much evidence to the contrary
Home education is not a safeguarding risk. This is stated numerous times by numerous professionals and professional bodies, and yet despite this registration and monitoring on safeguarding grounds is recommended. The position is expressed clearly here in ‘An evidence based review of the risks to children and young people who are educated at home’, a report commissioned by the National Independent Safeguarding Board in October 2017 following the death of Dylan Seabridge in 2011.
“Home education is not a risk factor for child abuse or neglect. However, where there are concerns for a child’s safety or well-being home education significantly reduces professional access and child safety monitoring opportunities.”
The report also quotes Sidebotham et al’s (2016) triennial review of SCRs – which included consideration of four families where children had been home educated – concluded that, It is not home education per se that is the issue here but the isolation from peers, teachers and agencies who could provide a protective function, and if any abuse or neglect is present this may continue undetected for prolonged periods… If there is no requirement for any professional to see a child who is being home educated, or to scrutinise the quality of their education and welfare in the same way as would be expected in a school, any deficits will not be picked up. This can be compounded if the parents also choose to opt out of universal health services for their child (Sidebotham et al 2016:94)
Being ‘invisible’ ‘being unseen’ is what makes professionals say makes them worried. This anxiety (shown in part to be a failing of the system, see Munro report conclusions below) is not an adequate basis for contravening the rights of children and families.
There have been a number of children who were killed who were not attending school. The Serious Case Review notes show however that they were far from ‘invisible’. They were in fact known to authorities. Many were involved with multiple agencies. This did not protect them.
We know that there are many children who go to school regularly who are abused, and that this abuse is not discovered despite very risk adverse professionals who tend to over refer.
Numerous eminent academics and professionals and commissioned reports include evidence that the problem lies in recognising abuse, in assessing data, not in needing more families to come under the radar. There is analysis and critique of the unintended effects of the pulling together of children ‘in need’ (s17 of the Children’s Act 1989) with children at risk of significant harm (s47 of the Children’s Act 1989).
Liz Davies, Emeritus Professor of Social Work, is vocal on the ways that the current system fails to protect children, including Khyra.
The work of Dr Devine and Mr Parker shows how the massive increase in families involved with social services, now 5% every year, has not led to a reduction in abuse.” The increase of families investigated has not decreased child abuse as the efficiency rate of referrals to detections had dropped from 24% to 7%.”
The following two passages are from the conclusion of The Munro Review of Child Protection: Final Report A child-centred system, commissioned by the Secretary of State for Education, Michael Gove to review child protection in England in 2010. They illustrate some of the complexities of identifying child abuse.
“As the review has described, abuse and neglect can be hard to see, with many of the indicative signs or symptoms being ambiguous and possibly having other benign explanations. Moreover, some parents go to extreme lengths to conceal the truth. There is a degree of uncertainty about recognising that children and/or young people are suffering significant harm that cannot be eliminated, though training helps professionals to know what to look for and procedures help them know what to do with their concerns. Managing this inescapable uncertainty is a problem that bedevils child protection services around the world and examples from this country illustrate how this central problem influences priorities in practice. If uncertainty is managed by referring even small signs of concern to children’s social care, then the level of demand for assessment is so high that it absorbs the bulk of resources, and provision of early help to children and families is cut in consequence. Families then only get access to help when problems are very severe and hard to resolve. Moreover, it means that many children are subject to intrusive and distressing enquiries but the families are finally deemed non-abusive and offered no help.”
“Anxiety is already a major force in the system because of the complexity and emotional intensity of work with families where children could be or are being harmed. As already discussed, anxiety about missing a case of abuse or neglect leads to the high level of referrals to children’s social care. Social workers, in turn, can be driven by anxiety into applying to remove children from their birth family at a lower level of risk. Waves of anxiety travel through the system when there is a high profile death, leading to more referrals being made. The media and the public have a role to play in taking a more realistic view of the impossibility of eradicating all uncertainty from child protection. The false hope of eliminating risk has contributed significantly to the repeated use of increasing prescription as the solution to perceived problems. Consequently, this has increased defensive practice by professionals so that children and young people’s best interests are not Chapter eight: Conclusion 135 always at the heart of decisions. It is major challenge to all involved in child protection to make the system less ‘risk averse’ and more ‘risk sensible’.”